Christian Heritage Party says Hamilton violated its charter rights in removing bus shelter ads

Last year, the Christian Heritage Party paid for three bus shelter ads targeting transgender people's use of public gendered restrooms. The city removed the ads and called them offensive. Now the party is in court, arguing for freedom of speech.

The court challenge argues its freedom of speech was violated over ads aimed at transgender community

(Samantha Craggs/CBC)

The Christian Heritage Party is taking Hamilton to court, arguing its charter rights were violated when the city removed bus shelter ads aimed at the transgender community's use of gendered public restrooms.

But the city is prepared to fight the challenge, with one councillor saying the transit shelters have to be "non-threatening" spaces.

The city will not be backing away.- Aidan Johnson, Ward 1 councillor

Removing the ads, the court document says, violates the CHP's freedom of expression under the Charter of Rights and Freedoms, and its ability to promote "Christian teaching and values."

The party has asked for an order quashing the city's decision, a declaration that a motion calling for the removal of the ads is unauthorized and "invalid insofar as it serves to limit freedom of expression."

The city removed CHP ads on three HSR bus shelters that depicted someone who appeared to be male entering a door marked "Ladies Showers," in August last year.

"Competing human rights," the ad read. "Where is the justice?" The CHP also distributed 3,500 flyers to Mountain homes.

The city apologized "for the offensive nature" of the ads. Coun. Aidan Johnson said at the time they "do not support the dignity of transgender people and their right to full equality under the law."

The city also told Outfront Media, the third-party company that handles HSR ads, to be more careful about ad content.

The CHP and its Hamilton Mountain electoral district association filed the court documents in the fall. This week, councillors went in camera to discuss Jim Enos's request to speak about Hamilton's new transgender and gender non-conforming protocol. Enos is CEO of the CHP's Hamilton Mountain electoral association.  

"The city will not be backing away" from its decision to remove the ads, said Johnson Wednesday. And he stands by the decision to remove the ads.

"The city has an obligation to ensure our bus shelters are non-threatening spaces, particularly for vulnerable youth," he said. "On that basis, I feel it was absolutely necessary for the ads to come down."

The CHP notice "makes certain assertions," the city said in an emailed statement. 

"The next step is for the applicant's lawyer to serve the City of Hamilton with an application record, which will consist of some evidence — usually affidavits — to establish the facts alleged. 

"The city has not received that. Without that, the notice is all that we have. So the City of Hamilton can not issue a response until this happens."

Enos says the CHP raised $50,000 in one week for the court action.

'Other costs as this honourable court deems just'

The action calls for the city to repost the three ads Enos says he purchased for 28 days start Aug. 1, 2016, as well as have it cover the costs of the application and "other costs as this honourable court deems just."

Enos's effort urged people to speak out against the city's upcoming protocol, which says people who are transgender and gender non-conforming can use showers and restrooms of their self-identified gender.

The city has an obligation for its ads to meet the Ontario Human Rights code standard, said Will Rowe, local activist for transgender rights, last year. And "what that poster does is pick on a very specific fear."

Art Hedden, an east Mountain father of a transgender daughter, received one of the flyers. They are "pushing that hysteria button," he said.

The legal action comes at a time when transgender rights are at the forefront in Hamilton.

About to pass new protocol

Last April, the city settled an Ontario Human Rights Tribunal case after a guard at the MacNab bus terminal stopped a transgender woman from using the women's washroom.

Part of that settlement dictated the city had to establish a transgender and gender non-confirming protocol.

That protocol includes the following:

  • People have a right to access washroom and change facilities based on their self-identified gender identity.
  • When possible, the city will provide unisex, single-stall washrooms or change rooms, but will not force anyone to use them.
  • Disclosing someone's gender identity or transition without their consent or knowledge is a form of harassment and discrimination under the Ontario Human Rights Code. This goes for city employees as well as when the city deals with the public.
  • In both cases people "must be referred to by their preferred name, gender and pronoun."
  • City employees should use inclusive language while interacting with the public — eg. "people" instead of "men and women," and "they" instead of "he" and "she."
  • City employees should think about whether gender information is necessary before they ask the public to provide it. Ideally, instead of "male" or "female" check boxes, there will be a blank space for the person to write in their gender.

City council will vote on it this year.

samantha.craggs@cbc.ca | @SamCraggsCBC