Transgender woman denied waxing of male genitals wasn’t discriminated against: Tribunal

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Human Rights tribunal on transgender waxing complaint
WATCH: Tensions ran high on the final day of a B.C. Human Rights Tribunal hearing for a transgender person, who claims more than a dozen spas refused to perform a Brazilian wax on her. Jill Bennett reports – Jul 26, 2019

A B.C. transgender woman who accused multiple aestheticians of discrimination for refusing to wax her male genitalia has had her case dismissed.

In a scathing ruling B.C. Human Rights Tribunal member Devyn Cousineau found that Jessica Yaniv had been repeatedly deceptive, and had sought to target small businesses for financial gain “or to punish certain ethnic groups which she perceives as hostile to the rights of LGBTQ+ people.”

The ruling involves seven cases that were consolidated into one, all of them involving allegations the businesses refused to serve Yaniv on the basis of her gender identity. Five involved genital waxing, while two involved waxing arm or leg hair.

Most of the cases involved racialized women with imperfect English, several of whom operated businesses from their home.

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Cousineau dismissed all seven complaints, and has ordered Yaniv to pay three of the respondents $2,000 each.

Genital waxing

At the heart of the case was whether the women had discriminated against Yaniv for refusing to wax her male genitalia when she had sought a Brazilian wax.

Cousineau said she was satisfied that Yaniv has male genitals, though noted she was repeatedly evasive about the matter during testimony.

Yaniv argued that a Brazilian refers to any waxing of the genital area regardless of who it is performed upon, while the respondents argued it refers to the procedure around a vulva only, and that the same procedure involving a penis or scrotum is referred to as a “brozilian” or “manzilian.”

Angela Barnetson, an experienced licenced aesthetician who teaches at the Blanche Macdonald Centre in Vancouver, testified that the beauty industry refers to waxing of biologically female parts as a Brazilian and of biologically male parts by the other two terms.

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Thriving in a transgender family

She told the tribunal the “brozilian” procedure is both substantively different from a Brazilian and highly technical, adding the technique is not taught at Blanche McDonald.

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It can involve handling a penis and scrotum for between 20 minutes and an hour, while potentially causing tears or bleeding in the client if done wrong, she said.

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Barnestson also testified that clients often become sexually aroused during the procedure.

“A scrotum is different than a vulva — regardless of the gender of the person it is attached to,” wrote Cousineau.

“Given the difference in techniques, training, and physical body parts, it is not appropriate to lump both together under the broader  rubric of “genital waxing”, or — as Ms. Yaniv argues — “genital waxing for women.”

Cousineau said she rejected Yaniv’s assertion the case was analogous to a baker denying service for a gay wedding cake, noting baking does not involve intimate contact for a prolonged period of time.

Rather, she said waxing services require active and specific consent.

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“I do not accept that a person’s decision to touch a stranger’s vulva then requires them to also touch a stranger’s penis and scrotum,” wrote Cousineau.

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Cousineau also threw out the complaints relating to leg and arm waxing.

She said refusing those services on the basis of gender identity would be discrimination, but found Yaniv’s motive for making the complaints was personal financial gain and to “punish” racialized and immigrant women based on a perception they were “taking over” and hostile to LGBTQ2 women.

Pattern of deception and harassment

The tribunal found that in Yaniv’s contact with the various aestheticians, she had been deceptive, often making multiple attempts to contact the women using different names and photos.

In one case, she first approached Sandeep Benipal of Blue Heaven Beauty Lounge through Facebook Marketplace with a male photo and the name Jonathan.

Benipal told Yaniv she only accepted female clients, to which Yaniv responded “I am a lady.” Benipal, however, declined service when Yaniv told her she was trans and had not had surgery, which Benipal took to mean male genitals were involved, according to the ruling.

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The ruling says two days later, Yaniv again approached Benipal, this time with the name Jessica and a photo of a woman with long hair and makeup she’d found on the internet.

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When Benipal told her she would perform a Brazilian, Yaniv then told her she was menstruating and asked if Benipal would do the waxing around the string of a tampon.

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Yaniv later told the tribunal the purpose of the question was to see if Benipal was “professional,” a conclusion Cousineau rejected.

“In an unrelated Facebook post, Ms. Yaniv said publicly that ‘The funniest thing is asking an immigrant for a tampon they freak out lol [crying/laughing emoji],'” wrote Cousineau.

“In my view, the most likely scenario is that Ms. Yaniv was trying to make Ms. Benipal feel uncomfortable or awkward for her own amusement or as a form of revenge. This is consistent with Ms. Yaniv’s behaviour in relation to all of the Respondents.”

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The tribunal states that Yaniv went on to try and contact Benipal three different times with different photos asking about services for transgender people, and eventually complained to Groupon that Benipal was being discriminatory.

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In another case, Yaniv had booked a Brazilian with Marcia DaSilva, a Brazilian immigrant who worked from her home with children present.

DaSilva initially accepted the booking, even after Yaniv said she was trans, according to the ruling.

She later cancelled when she became suspicious after Yaniv texted her multiple times, eventually revealing she was not the person in the photo she’d used to book the appointment online.

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“Ms. DaSilva did not cancel the appointment when Ms. Yaniv disclosed that she was transgender. Rather, her response was to tell Ms. Yaniv to just come to the appointment and say that she did not have a problem serving her,” wrote Cousineau.

“She only ultimately changed her mind after Ms. Yaniv kept pushing, and sent her the picture of herself — revealing, for the first time, that she was not in fact ‘Jessica.'”

Cousineau noted that DaSilva’s personal safety was relevant to the case.

She went on to note that Yaniv made multiple further attempts to contact DaSilva, accused DaSilva’s of discrimination to her boss, and reported DaSilva’s Facebook page, resulting in it being shut down. DaSilva eventually went to the police about the dispute, the ruling states.

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“As a result of her negative encounter with Yaniv, Ms. DaSilva closed her business,” wrote Cousineau.

Racial animus

The tribunal rejected Yaniv’s argument that the reason the majority of her complaints were against racialized women was because they are the main providers of beauty services in her community, instead finding that Yaniv suffers from a “racial animus.”

“Ms. Yaniv has a grievance against certain ethnic and cultural groups in the Lower Mainland of B.C. which she perceives are failing to assimilate effectively into what she considers ‘Canadian’ culture,” wrote Cousineau.

“These complaints are one way in which she is attempting to make this point and punish members of these groups.”

As evidence, the ruling pointed to a series of social media posts by Yaniv, including one which complained of “immigrants here who gawk and judge and aren’t exactly the cleanest people,” and who “lie about s–t, they’ll do anything to support their own kind and make things miserable for everyone else.”

Yaniv testified that she believes “certain groups,” such as Sikh, Hindu, Muslim and Indian people, hold discriminatory attitudes to transgender people, and that such groups are obligated to adhere to Canadian culture and values when in Canada.

Yaniv argued these communities are failing to assimilate and use their religions as a shield to excuse their discrimination, going so far as to liken their behaviour to neo-Nazism, the ruling states.

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“Ms. Yaniv resides in the most populous area of the province — the Lower Mainland. Her testimony that she must travel to Victoria to ‘avoid’ racialized service providers is not supported by any evidence and is not credible,” wrote Cousienau.

“Coupled with Ms. Yaniv’s open hostility towards these groups, I cannot avoid the finding that Ms. Yaniv is using many of these complaints to fulfill her promise to ‘expose’ the ‘bigotry’ of South Asian and other immigrant or racialized women who would not serve her.”

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