Court upholds City of Hamilton's decision not to run ad it deemed harmful to transgender people

An Ontario court has upheld a decision made by the City of Hamilton to reject a bus shelter advertisement that officials thought could cause harm to people who are transgender, more than a year after the city declined to run the ad. 

On July 6, 2023, the city declined to run an ad by the Christian Heritage Party (CHP) of Canada "because it jeopardized the city's ability to provide a safe and welcoming transit system," according to the court decision.

This fall, Ontario Superior Court of Justice Jamie Trimble upheld the city decision after it was challenged by the CHP, who claimed the city was infringing on their Charter rights to freedom of expression.

C. Kirk Boggs, a lawyer representing the city, said the decision was "important and relevant" for municipalities in the province.

Boggs said the case will be "useful guidance to municipalities" in future.

CBC Hamilton reached out to the CHP but did not hear back before publication.

The decision was made on Oct. 28 to dismiss the court case because Judge Trimble said he found the city had an "internally coherent logic and shows a rational chain of analysis" when deciding to decline the ad.

Jelena Vermilion, who is transgender and a sex worker advocate in Hamilton, said the city's win is a "perfect example for other municipalities that we shouldn't be bullied by litigation into submitting."

According to the decision, the ad was first declined by the city's third-party advertising contractor, OUTFRONT Media, in early 2023 after the CHP's Ontario branch president, James Enos, reached out for approval of the ad. CHP requested a review and the city gave its final disapproval in July of that year.

The ad featured a woman smiling to the camera and part of it read, "Woman: An Adult Female," according to the decision.

Vermilion told CBC Hamilton the wording of the ad implied that transgender women are "sub-human, are not adults. It infantilizes them [and] suggests that their identity is a facade."

"It reminds me of high school bullying. They used to say that kind of stuff in school, some of the religious peers of mine, and it was almost just like a slogan of hate," she told CBC Hamilton.

CHP had previously won a lawsuit against city

CHP's intention behind the ad, according to the decision, was to express their view that there are two biological genders that are "encoded in the chromosomes" and can't be changed, and that kids must be protected from a "gender agenda."

However, in Canada, gender is defined by government, health and educational institutions, community groups, 2SLGBTQ+ advocates and more as different from sex assigned at birth and women as all people who identify as such, including trans women. 

The Ontario Human Rights Code also says "every person has a right to equal treatment with respect to services, goods and facilities, without discrimination" by factors such as gender identity or gender expression.

Vermilion added that, in addition to those whose gender may not align with their sex, there are also people like her who are intersex. 

"I have had my genome sequenced in full, and I am actually an XX male. So I have female chromosomes, but I am a male," she said.

She said when she was in the womb, she was two fetuses that absorbed into one.

"That is not against nature or against God."

Vermilion said she's proud of the "smart" and "strategic" way the city responded to the CHP, but wishes it didn't come at the suffering of transgender people due to past litigation.

She was referring to a previous lawsuit the CHP won against the city after the latter pulled an ad from bus shelters that appeared to show a man entering a door marked "Ladies Showers."

"Without that history and without the actual suffering of trans people, which then led to action, and then now we have this decision, I don't think we would be here," she said.

Case dismissal will be 'useful guidance' for future

According to Boggs, the city's decision came after it consulted with local members of the 2SLGBTQ+ community, academic literature and with the Hamilton Police Service regarding incidents of hate crimes against transgender and gender-diverse people in public transit over the last few years.

Hamilton police said in its most recent release of hate crimes statistics, there was a 26 per cent spike in hate crimes reported to police in 2023 compared to 2022. They said 2SLGBTQIA+ people were one of the most targeted groups. 

Safety concerns for trans people on the transit system have specifically been raised in recent years.

In April, a man was sentenced to seven months of jail time after he livestreamed himself unleashing a transphobic tirade and assaulting someone on a city bus in 2022.

"It's direct proof that these things happen and people are so brazen to share that in the public sphere," Jyssika Russell, a member of the 2SLGBTQ+ community in Hamilton, said then.

Boggs said, as far as he knows, this is the first time in Ontario that a municipality's decision not to run an ad at a public transit location has been upheld because the city showed consideration and transparency to the different interests when making the decision.

He said in past cases when municipalities would say no to potentially controversial ads, municipalities didn't do a clear and transparent enough analysis.

"When [decisions] go to court for judicial review, the court would say, 'look, we're not saying that the decision that you reached was wrong, but … you didn't undertake the appropriate analysis,'" said Boggs.

Boggs said what the court said in this case, "for the first time" in a situation like this is that the city made a correct analysis of the reasoning for the decline of the ad, so the court decided not to "set that decision aside."

The judge said that the city "recognized that the decision whether to accept the CHP's advertisement was a complex one," conducted the proper research and consultations and balanced the effects the ad might have had on transgender communities in the city and the CHP's right to freedom of speech.