I recently had an amazing conversation with Nicki Ward, a person who I have a great deal of respect for and who is well versed in the types of issues I wanted to explore in connection with trans rights as we continue to honour Pride 2021 across Canada. Nicki is an advocate and activist who has been very active in the trans community for well over 20 years. She is a former board member of The 519, a senior editor of Creating Authentic Spaces, and a leading light in shaping Canadian thought and processes around a number of 2SLGBTQ+-inclusive issues. Nicki has played an instrumental role in the inclusion of gender identity and gender expression in the Canadian Human Rights Act, starting with Bill C-389, then Bill C-279, and ultimately Bill C-16. I really enjoyed our conversation and hope you find it just as refreshing as I did.
Our conversation has been edited for clarity and length.
How would you describe yourself?
My name is Nichola Ward but most people call me Nicki. My preferred pronouns are she, her, they, and Your Majesty, which always gets attention. I am an older woman and I came out as trans well over 20 years ago. So, necessarily, I’ve been at the cutting edge of human rights, specifically as directly related to trans rights and women’s rights, from the very get go.
I’m relatively well educated and I had a job as a senior executive in the insurance industry. I was responsible for a large staff of people and a significant percentage of the insurance company’s annual budget. I came out as trans and immediately went from an incredibly privileged position to one of third-class citizenship. I lost my job, I lost access to my children, and it was extremely difficult—close to impossible—to access housing.
The reason I say third-class citizen and not a second-class citizen is because women are second-class citizens in most societies, including Canadian society. They make less money, they have less access to resources, and there are fundamental barriers to growth that are put in the way of women over men. Men enjoy privileged status in society, and by privileged I mean not just earned privilege but also unearned privilege. So third-class citizen because trans women are considered second-class women, and that means that we have a double whammy: not only do we not have the so-called benefits of being second-class citizens, but many biologically cis gender women feel that we don’t qualify as real women.
You’ve talked about some of the challenges you encountered when you came out as a trans woman. Can you tell me how things changed with Bill C-16?
Prior to Bill C-16, there was no statutory protection for trans women or men at the municipal, provincial or the federal level. Up until 2016, it was actually legal to deny me housing, it was legal to fire me, it was legal to use my gender identity as prima facie evidence of my “inability to parent.” There was a reverse onus placed on me in that I had to prove that I was not a threat to my children merely because of my gender identity. Up until 2016, I could have even been thrown off a plane for not being a “real woman.” And if you deny someone the right to live peacefully, to form relationships, or to even earn a living, then the results are extremely poor. Unsurprisingly, death rates amongst trans people are absolutely devastating.
I have necessarily helped shepherd much of the legislation and the choice of language that we use at all three levels of government today, but I don’t claim exclusive right to pushing the wheel of the law. It’s my opinion that laws basically put shape to popular opinion or popular attitudes, and not the other way around. Bill C-16 was the combination of decades of work by myself and many others. It was tying a legal bow on a decision that had already been made by society by and large. Most people were astonished to find out that it was legal to deny a trans person a passport and access to a plane or a ship.
The statutory changes that Bill C-16 introduced have not yet been tested in court meaningfully, but at least we have a piece of paper that we can point to and say: “This is not allowed.”
Obviously, laws can’t cover everything, but are there any issues that Bill-C16 has failed to address from your perspective?
Well, once again, law in my opinion follows common practice, not the other way around, and the common practice right now is still to discriminate against trans people so I’m not sure that the enactment of new laws is the way to improve things for trans people.
One of the challenges that we face right now is not intersectionality but what I call extrasectionality of rights, the suggestion that human rights are a scarce commodity, the notion that we must make a decision about how to treat a trans woman versus a woman of colour versus a man with a disability. The suggestion that these are all competing rights is a fundamentally flawed argument and we as a society haven’t really figured out how to extricate ourselves from that. What we need is a shift in thinking from human rights as something that is scarce and that needs to be scrambled over by competing rights.
In order to move forward as a society, we need to become a lot better at critical thinking. This is possibly one of the biggest challenges of our age where we have opinions shifted by raw emotion through social media. We don’t have good rules to govern the spread of falsehoods, such as the falsehood which says that trans women are not “real women,” people of color are not as able as white people. These are falsehoods that have been shared without critical thinking and we don’t really have a mechanism for solving that right now, because we have the balance of freedom of speech to offset. Even right now, our laws around freedom of speech allow you to freely express ideas that you know to be manifestly wrong. Not by mere ignorance, but with actual malice aforethought.
How would you respond to the claim that trans women are not real women?
Well, what is your definition of real womanhood? Is it biological elements? Are you saying that a woman who’s had a mastectomy and therefore does not have the secondary characteristics of breasts is not a real woman? Are you saying that a woman who has had a hysterectomy is not a real woman? Is your definition of womanhood contingent upon making babies? Many women choose not to make babies. Does that make them less of a woman? I don’t think so, and most of society has said no. It follows that the mechanical components of what it is to build a human woman are not the test of womanhood. Biological sex may be relevant if you’re in a lab dissecting someone, but in the real world, what we are talking about is gender, which is our role in society. That’s the distinction.
Real womanhood is something I thought long and hard about when I transitioned. I decided that I wanted to be a woman that was as strong and as amazing as my mother is, a woman that my daughter would be proud of. I decided to treat the term woman as an honorific and to bring respect, passion and drive to the expression of womanhood.
What motivates you to continue advocating for trans rights and women rights?
I’ve always been an advocate for human rights, even before I transitioned. I enjoyed a certain place in society but I was raised to feel socially responsible. And also, my mother used to be very active in the feminist movement and I saw the work that she did as vital, so I come by it honestly. I’m also personally invested. For me and other trans people, going to the toilet is a political decision. It’s insane, but it’s a fact of life. If I want to get a driver’s license, I have to have a discussion about my genitalia. That’s insane! Most women don’t perceive that as an affront against women’s rights, but the only reason for including the status of your genitalia on a driver’s license is because, at some point, women were not allowed to drive. Yet we offer that information freely. Or we see an application form with M or F and we tick one. It’s none of their business! It’s a huge breach of privacy that people don’t object to because they’ve just become used to it, but just because something is “normal” doesn’t mean it’s right.
And it makes me so sad when earnest feminists with whom I agree on almost everything look at trans women and say we’re just trying to invade women’s sacred space. Nothing could be further from the truth, and it would be amazing if, instead of getting involved in absurd Twitter rants about how trans women are somehow substandard, they actually realized that we have the ability to really highlight some of the massive inequities that we take for granted. Why do you allow a credit application to ask you whether you have a vagina or not? That’s a really good question the feminists don’t really ask themselves, but trans women have to. Advocating for human rights is not a societal thing I do because I want to be patted on the back. It’s how I want to go through life, and I am confronted with a thousand small battles that I can win and contribute to our success. That’s how we change society.
Do you have any last words that you would like to share?
I’m grateful for the opportunity to share this. Fifty years ago, when I first realized I was a girl inside and I was told that I was mad, I knew that there would be a time when what I felt would be acknowledged as real and what everybody else was saying would be proven to be wrong. I had confidence in that and it kept me going. I have the same kind of confidence that we will transcend this time we’re in right now where we have competing needs for basic human rights. I think we will hit a time when we will stop putting people into different categories and start looking at the so-called protected classes as a singularity of what it means to be human, and see that the time we’re in right now has been actually somewhat primitive. I may not live long enough to see that but I certainly believe that’s where we’ll be.
Angela Ogang is a bilingual member of the Ontario Bar and an Advocate of the High Court of Kenya, and a member at large on the CBA Women Lawyers Forum National Executive. She can be reached at angela@angelaw.ca.