Montreuil v. Canadian Forces

Montreuil v. Canadian Forces
Collection
Canadian Human Rights Tribunal
Date
2009-09-08
Neutral citation
2009 CHRT 28
File number(s)
T1047/2805
Decision-maker(s)
Deschamps, Pierre
Decision type
Decision
Decision Content
CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE
MICHELINE MONTREUIL
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
CANADIAN FORCES
Respondent
DECISION
2009 CHRT 28 2009/09/08
MEMBER: Pierre Deschamps
I. Introduction
II. Complaint
III. Position of the parties
IV. Issues
V. Legal framework
VI. Contextual factors
A. Micheline Montreuil's personal life
(i) Micheline Montreuil's website
(ii) Collège Garneau incident
a) Facts from the affidavit
b) Dr. Serge Côté's report
B. Military requirements
(i) Application assessment process
(ii) Universality of service principle
(iii) Medical category
a) Common Enrolment Medical Standard
b) Medical category system
(iv) Medical employment limitations
(v) Military Occupation Codes (MOCs)
(vi) Generic Task Statement
(vii) Micheline Montreuil's medical category
a) Pierre Montreuil's medical category in 1995
b) Micheline Montreuil's medical category in 1999
c) Micheline Montreuil's medical category in 2001
C. Medical appointments and reports
(i) Dr. Martine Lehoux's involvement
(ii) Dr. Serge Côté's involvement
a) Report dated October 25, 1999
b) Report dated December 20, 1999
c) Report dated November 24, 2001
(iii) Dr. Rolland Tremblay's involvement
a) Appointments and correspondence
b) Medical reports
1. Report dated October 26, 1999
2. Report dated March 15, 2000
3. Information request form dated November 22, 2001
D. Pierre/Micheline Montreuil's military background
(i) 1974 application for enrolment
(ii) 1987 application for enrolment
(iii) 1995 application for enrolment
(iv) 1999 application for enrolment
VII. Elements in dispute
A. Credibility of witnesses
(i) Factual witnesses
a) Micheline Montreuil
b) Micheline Montreuil's witnesses
c) Canadian Forces witnesses
(ii) Expert witnesses
a) Dr. Pierre Assalian
b) Doctor Beltrami
c) Dr. Richard Karmel
d) Daniel Hébert
B. Concepts of transgendered and transsexual
(i) Transgendered persons and the transgendered realm
a) Testimony
1. Micheline Montreuil's testimony
2. Doctor Assalian's testimony
3. Doctor Beltrami's testimony
b) Scientific literature
(ii) Transsexual persons and their care
a) Scientific literature
b) Testimony
1. Doctor Dufour's testimony
2. Doctor Watson's testimony
3. Doctor Assalian's testimony
4. Doctor Tremblay's testimony
5. Doctor Beltrami's testimony
C. Psychiatric assessment of Micheline Montreuil
(i) Experts who were present and their reports
a) Dr. Pierre Assalian
1. Doctor Assalian's mandate
2. Doctor Assalian's reports
(1) First report
(2) Second report
(3) Third report
(4) Fourth report
b) Dr. Richard Karmel
c) Dr. Édouard Beltramià
1. Doctor Beltrami's mandate
2. Doctor Beltrami's reports
(1) First report
(2) Second report
(ii) Gender identity disorder
a) Gender identity disorder and the DSM-IV
1. The five axes
2. Clinical criteria
b) Gender identity disorder and Micheline Montreuil
1. Micheline Montreuil's position
2. Doctor Assalian's assessment
3. Doctor Beltrami's assessment
(iii) Personality disorders
a) Personality disorders and the DSM-IV
1. Borderline personality disorder
2. Histrionic personality disorder
3. Narcissistic personality disorder
b) Personality disorders and the MMPI test
1. Doctor Karmel's assessment
2. Doctor Beltrami's assessment
c) Personality disorders and Micheline Montreuil
1. Doctor Assalian's assessment
2. Doctor Beltrami's assessment
D. Medical assessment of Micheline Montreuil by the Canadian Forces
(i) Assessment by physician assistants
a) Physician assistant Dumais
b) Physician assistant Leroux
(ii) Assessment by recruiting medical officers
a) Doctor Collins' assessment
b) Doctor Newnham's assessment
c) Dr. K. M. Wright's assessment
(iii) Canadian Forces psychiatrist's assessment
(iv) Assessment by Doctor Georgantopoulos and the DMedPol
(v) Assessment by the Director of Medical Policy (DMedPol)
E. Errors and decisions of the Canadian Forces
(i) Errors
a) Error regarding medical condition
b) Error regarding hormonal therapy
c) Error regarding sex reassignment
d) Error regarding the health care team
e) Error regarding physicians
(ii) Decisions
a) Refusal to hold face-to-face meeting
b) Refusal to arrange for an independent external assessment
c) Incorrect diagnosis
d) Rejection of medical opinions
e) Imposition of medical employment limitations
f) Closing the 1995 enrolment file
VIII. Overall conclusion
IX. Closing remarks
X. Remedy
XI. Disposition and order
I. Introductio [1] In the complaint before the Tribunal, Micheline Montreuil alleges that the Canadian Forces discriminated against him on the grounds of sex and a perception that he was disabled, contrary to sections 3 and 7 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6.
[2] This complaint was heard over a number of months, from October 2006 to December 2007. This case was reserved on December 21, 2007. On February 9, 2008, the Member's mandate expired. The Chairperson of the Tribunal extended the Member's mandate in three of the four cases before him at the time. His mandate in this case was not extended. It appears that the Chairperson's decision not to extend the Member's mandate in this case was the subject of an application for judicial review from the respondent.
[3] On December 23, 2008, the Honourable Madam Justice Hansen of the Federal Court allowed the application for judicial review. She gave her reasons in a judgment dated January 7, 2009. In her reasons for judgment, she found that the Chairperson's decision was unreasonable in several respects. She pointed out that the Chairperson had failed to consider the interests of the parties in the case at bar. The case was therefore referred back to the Chairperson for reconsideration. On February 19, 2009, the Member's mandate was extended until August 19, 2009, so that he could make a determination in the present case.
[4] It should be noted that the member who heard the complaint in the case at bar was never informed by the Tribunal about the judicial review proceedings before the Federal Court. However, as a precaution, he kept in his office all material filed in the hearing of this case-submitted documents, transcripts-as well as his own personal notes from the hearing. This decision is therefore made on the basis of a complete record that includes material filed at the hearing, transcripts and the Member's hearing notes.
[5] The hearing of this matter took 97 days to complete. A number of interim decisions were made in the proceedings. More than 20,000 pages of transcripts were filed. Fifteen factual witnesses and four expert witnesses were heard.
[6] The factual witnesses were Micheline Montreuil, complainant; Daniel Trudel, Hélène Trudel and André Gravel, acquaintances of the complainant; Dr. Serge Côté, psychiatrist; Dr. Rolland Tremblay, endocrinologist; Maj. Pierre Labonté (formerly Captain Labonté), personnel selection officer; Col. Ronald Fletcher; Warrant Officer Jean-Marc Dumais, physician assistant; Dr. Darlene Newnham, recruiting medical officer; Dr. D. B. Collins, recruiting medical officer; Dr. Randy Boddam, Canadian Forces psychiatrist; Dr. Diane Watson, psychiatrist; Dr. Christiane Dufour, psychologist; and Josh Pankhurst, Department of National Defence clerk.
[7] The expert witnesses were Dr. Pierre Assalian, psychiatrist; Dr. Edouard Beltrami, psychiatrist; Dr. Richard Karmel, psychologist; and Daniel Hébert, actuary.
[8] In the case at bar, the complainant represented herself. The respondent was represented by the Attorney General of Canada. The Canadian Human Rights Commission (the Commission) was actively involved throughout the hearing of the complaint.
II. Complaint [9] On the complaint form dated December 17, 2002, Micheline Montreuil states that he applied for enrolment in the Canadian Forces in June 1999. The complaint indicates that Micheline Montreuil had already applied twice before, in April 1974 and June 1997.
[10] As for the first application for enrolment, Micheline Montreuil states in the complaint that he was unable to start the officer course. As for the second application for enrolment, Micheline Montreuil states that he voluntarily asked to leave the Canadian Forces for two reasons: first, because of a conflict with his employer at the time, Collège François-Xavier-Garneau, he was too behind in his training; and second, he was about to begin a sex reassignment process and did not want that to interfere with the normal course of his training and career in the Canadian Forces.
[11] Micheline Montreuil's complaint indicates that he applied for enrolment in the Canadian Forces again in June 1999. As part of the enrolment process, Micheline Montreuil states in his complaint that he underwent two medical examinations and attended an interview at the end of which it was recommended that Micheline Montreuil continue with the enrolment process to return to the Canadian Forces.
[12] The complaint indicates that, between October 13 and 25, 1999, six experts in their fields, including Dr. Serge Côté, psychiatrist, gave their professional opinions about him in writing. The complaint also indicates that, on October 26, 1999, Dr. Roland Tremblay, endocrinologist, gave the Canadian Forces his professional medical opinion on Micheline Montreuil's sex reassignment.
[13] It appears from the complaint that Lieutenant-Commander Collins, a recruitment medical officer at Canadian Forces Base Borden, later asked a number of questions on Micheline Montreuil's partial physical transformation, in a letter dated December 10, 1999. In a letter dated December 20, 1999, Doctor Côté, psychiatrist, gave the Canadian Forces a second professional medical opinion on Micheline Montreuil's sex reassignment and recommended that Micheline Montreuil be enlisted in the Canadian Forces as a woman, despite his partial transformation, since Doctor Côté believed that the incomplete transformation was beneficial for Micheline Montreuil.
[14] In his complaint, Micheline Montreuil states that he sent Doctor Côté's letter to Lieutenant-Commander Collins. In an accompanying letter to Lieutenant-Commander Collins, Micheline Montreuil states that he was a normal, right-minded person, he had no intention of undergoing any surgery whatsoever in the coming years, he would no longer need hormone treatments, and he wished to meet the Canadian Forces psychiatrist and other members of the Canadian Forces so that they could examine him in person and he could answer their questions in person, so that their opinions would be based on facts rather than assumptions or theory.
[15] The complaint indicates that, in a letter to Micheline Montreuil on March 9, 2000, Lieutenant-Commander Collins asked a very specific question on Micheline Montreuil's physical transformation, requesting that his physician confirm that no additional treatments related to his sexual identity were required. In his reply to Lieutenant-Commander Collins, Micheline Montreuil repeated that he would cease all hormone treatments within two months, with a view to returning to the Canadian Forces. Moreover, the complaint indicates that, on March 15, 2000, Dr. Roland Tremblay, endocrinologist, gave his medical opinion to the Canadian Forces on Micheline Montreuil's sex reassignment, stating that stopping hormonal therapy compromises or simply stops a transsexual person's development.
[16] According to the complaint, on May 17, 2000, Lieutenant-Commander Collins requested that Micheline Montreuil's psychiatrist provide a professional diagnosis of the complainant's need for psychotherapy and medical support regarding his sexual identity in the 30 years to follow. The complaint indicates that, on November 22, 2001, Dr. Roland Tremblay gave his professional medical opinion a third time regarding Micheline Montreuil's sex reassignment and recommended that the complainant be enlisted in the Canadian Forces as woman. The complaint also indicates that, on November 24, 2001, Dr. Serge Côté, psychiatrist, gave his professional medical opinion a third time regarding the sex reassignment and recommended that Micheline Montreuil be enlisted in the Canadian Forces as a woman.
[17] It appears from the complaint that, in a letter to Micheline Montreuil on January 7, 2002, Lieutenant-General Couture explained the Common Enrolment Medical Standard and the role of G (geographical) and O (occupational) factors in selecting applicants, explained that an applicant for enrolment in the Canadian Forces must meet the Common Enrolment Medical Standard of G2 and O2, and explained that the only way for Micheline Montreuil to be classified in medical category G2 would be to show that there was no ongoing or future monitoring or treatment associated with his diagnosed medical condition. According to the complaint, Lieutenant-General Couture states in his letter that hormonal therapy constitutes ongoing treatment that calls for classification in category G3 or higher. According to the complaint, hormonal therapy had been stopped as of February 2001.
[18] The complaint indicates that, on March 7, 2002, Micheline Montreuil asked Lieut.(N.) A. Dieryckx to initiate a review of his medical condition and, in a letter dated April 23, 2002, Micheline Montreuil asked Doctor Newnham, recruiting medical officer, to review his medical condition.
[19] According to the complaint, in a letter dated April 25, 2002, Lieutenant Wright, recruiting medical officer, informed Micheline Montreuil that the Director of Medical Policy (DMedPol) was upholding the same medical restrictions even though all hormone treatments had ended more than one year earlier, no medical attention had been received for over one year and the complainant had submitted new medical reports dated November 2001.
[20] The complaint also indicates that, in a letter dated May 15, 2002, Micheline Montreuil asked Lieutenant Wright to review his medical condition in light of all the changes that had occurred. According to the complaint, in a letter dated July 30, 2002, Lieutenant Wright informed Micheline Montreuil that the restrictions associated with the hormone treatments had been removed by the Director of Medical Policy (DMedPol), but the DMedPol had assigned a new medical limitation indicating that Micheline Montreuil had a chronic gender identity disorder that prevented him from returning to the Canadian Forces.
[21] Micheline Montreuil claims in his complaint that the letter dated May 17, 2000, from Lt.-Cmdr. D. B. Collins and the letter dated July 30, 2002, from Lieutenant Wright are acts of discrimination. More specifically, Micheline Montreuil focuses on two points in the complaint:
How could Lieutenant-Commander Collins, in his letter dated May 17, 2000, ask Micheline Montreuil's psychiatrist to provide a professional diagnosis on Micheline Montreuil's need for psychotherapy and medical attention regarding his sexual identity in the 30 years to follow, when no psychiatrist can guarantee 30 years of good and loyal service? How could Lieutenant Wright, in her letter dated July 30, 2002, state that Micheline Montreuil had a chronic gender identity disorder when all the assessments indicated otherwise?
[22] Moreover, Micheline Montreuil argues that the decisions of the Director of Medical Policy (DMedPol) are acts of discrimination, since they are contrary to professional opinions given by three different physicians who examined Micheline Montreuil on multiple occasions, that the opinions were not contradicted by any Canadian Forces physician who might have examined him, since the Canadian Forces were still refusing to have a Canadian Forces physician examine him, and that it was futile for Micheline Montreuil to submit new medical assessment reports because, according to the complaint, it was obvious from reading the letter dated July 30, 2002, that the Director of Medical Policy (DMedPol) would never grant a G2O2 classification.
III. Position of the parties [23] The positions of the parties in this case are, to say the least, diametrically opposed. The complainant, Micheline Montreuil, argues that this case deals essentially with discrimination, a position that the Commission supports. The respondent argues that the issue at hand is essentially of a medical nature, that Micheline Montreuil's medical condition is at the heart of this dispute. Micheline Montreuil places the discussion at a social or sociological level, while the respondent places it at a medical level.
[24] In the case at bar, Micheline Montreuil is biologically a man, but considers himself transgendered. He describes himself as a person with a body having characteristics of both sexes, for example, a pair of breasts and a penis. He claims to be in between the two sexes, male and female, and says that he wishes to join the Canadian Forces in that physical state.
[25] Micheline believes he is a victim of discrimination because of his gender or sex. For Micheline Montreuil, the crux of the dispute is the discrimination against him in the enrolment process. Micheline Montreuil argues that his application for enrolment in the Canadian Forces was rejected not for medical reasons, but mainly because he considers himself transgendered; therefore, the issue is one of discrimination on the basis of sex. He believes that the medical reasons are simply a way to cover up the discrimination and are in fact an excuse not to recruit him.
[26] Micheline Montreuil does not consider himself to be afflicted with a psychiatric problem such as a gender identity disorder or borderline personality disorder that would prevent him from serving in the Canadian Forces. Moreover, he believes that he has no medical condition that would prevent him from performing common tasks specific to the Canadian Forces and applicable to any member of the Forces.
[27] Micheline Montreuil further argues that the transformations that he has undergone, namely, breast enlargement, through the use of female hormones, and laser hair removal, were for aesthetic purposes only and in no way resulted from a desire to change his gender. Moreover, he emphasizes that the treatments were voluntary, not linked to any pathology, and simply aesthetic in nature, and that his decision to live in between the two sexes, but favouring the female sex, is a voluntary and social one.
[28] Micheline Montreuil claims that there is an anti-transgender policy in the Canadian Forces. He refers to the fact that persons with mental disorders tend not to be hired if such persons are generally thought to have employment limitations. Micheline Montreuil believes that, by adamantly classifying him as having a mental disorder, namely, gender dysphoria, the Canadian Forces are saying that they cannot recruit him.
[29] Micheline Montreuil believes that, in the Canadian Forces, medical issues are used to cover up transgender issues and discrimination. Micheline Montreuil believes that, upon closer examination, it is actually false to say that the Canadian Forces do not have a policy on transgendered persons. There is in fact a policy, and that policy is to exclude transgendered persons from employment by saying that they have a mental disorder. Micheline Montreuil believes that the respondent knowingly classified him in medical category G5 to be certain that he could not enrol in the Canadian Forces.
[30] The Canadian Human Rights Commission agrees with Micheline Montreuil's position. That said, the basic issue for the Commission is not the fact that Micheline Montreuil is transgendered or transsexual, but whether or not he is able to perform the work in the Canadian Forces for which he applied.
[31] The respondent, by contrast, argues that its refusal to enrol Micheline Montreuil is in no way discriminatory, but is based on his medical condition, which resulted in him failing to meet the Common Enrolment Medical Standard. The respondent's position is expressed clearly in a letter written by Lieutenant-General Couture to the Quebec regional manager of the Canadian Human Rights Commission on December 17, 2003.
[32] In his letter, Lieutenant-General Couture wrote that the respondent was justified in rejecting Micheline Montreuil's application for enrolment, because he did not meet the Common Enrolment Medical Standard. Lieutenant-General Couture believed that the respondent's decision was not motivated by prejudice against transsexuals or persons in transition, but by the medical condition with which Micheline Montreuil was diagnosed when he applied for enrolment. Lieutenant-General Couture pointed out that the respondent had given Micheline Montreuil a number of opportunities to show that he met the Common Enrolment Medical Standard, but the complainant had not provided that assurance. For the Canadian Forces, Micheline Montreuil's medical condition is at the heart of this dispute.
IV. Issues [33] In his complaint, Micheline Montreuil points out two issues that he believes must be decided by the Tribunal:
How could Lieutenant-Commander Collins, in his letter dated May 17, 2000, ask Micheline Montreuil's psychiatrist to provide a professional diagnosis on Micheline Montreuil's need for psychotherapy and medical attention regarding his sexual identity in the 30 years to follow, when no psychiatrist can guarantee 30 years of good and loyal service? How could Lieutenant Wright, in her letter dated July 30, 2002, state that Micheline Montreuil had a chronic gender identity disorder when all the assessments indicated otherwise?
[34] In addition to those two issues, it is important for the Tribunal to consider a third, which the respondent believes to be the nexus of this case:
(3) Were the Canadian Forces justified in placing a medical limitation on the enrolment of Micheline Montreuil in the Canadian Forces?
[35] Moreover, it appears that those questions are for the most part included in the questions asked of the experts in this matter, namely, Doctor Assalian:
On the basis of the documentation provided by Micheline Montreuil, were the Canadian Forces justified in assigning a medical employment limitation for gender identity disorder? On the basis of the interview of Mr. Montreuil on May 18, 2006, and Mr. Montreuil's MMPI-2 psychological assessment report by Dr. Richard Karmel, psychologist, should Mr. Montreuil be assigned a medical employment limitation for gender identity disorder?
and Doctor Beltrami:
Would the medical information provided by Mr. Montreuil, especially the reports Doctors Lehoux, Tremblay and Côté, have allowed the Canadian Forces to conclude that Micheline Montreuil had a medical condition that could compromise his work in the Canadian Forces? Can a person confirm that he will not require medical attention or psychotherapy in the 30 years to follow?
[36] As well, in oral argument, counsel for the Commission stated the main issue that the Tribunal must decide in the following way:
Did the situation of persons who are transsexual, transgendered, in transition or between the two play a role in the decision of the Canadian Forces to reject Micheline Montreuil's application for enrolment?
[37] To answer those questions, one must examine Micheline Montreuil's personal life and military background, the concepts of transgendered and transsexual and their relationship with the TTT realm, the various assessments produced in the case at bar on whether or not Micheline Montreuil had a gender identity disorder or personality disorder, and the various assessments by members of the respondent regarding Micheline Montreuil's application for enrolment. First, however, it is important to set out the legal framework within which all that information must be analyzed.
V. Legal framework [38] In his complaint, Micheline Montreuil alleges that he was subjected to discrimination under sections 3 and 7 of the Canadian Human Rights Act, supra. The sections read as follows:
3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted.
7. It is a discriminatory practice, directly or indirectly,
a) to refuse to employ or continue to employ any individual, or
b) in the course of employment, to differentiate adversely in relation to an employee,
on a prohibited ground of discrimination.
[39] In this case, a connection must be made between those provisions and certain subsections of section 15 of the Canadian Human Rights Act, supra, and section 33 of the National Defence Act, R.S.C. 1985, c. N-5.
Canadian Human Rights Act
15. (1) It is not a discriminatory practice if (a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement.
15. (2) For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupational requirement and for any practice mentioned in paragraph (1)(g) to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.
15. (9) Subsection (2) is subject to the principle of universality of service under which members of the Canadian Forces must at all times and under any circumstances perform any functions that they may be required to perform.
National Defence Act
33. (1) The regular force, all units and other elements thereof and all officers and non-commissioned members thereof are at all times liable to perform any lawful duty.
[40] Liability to perform any lawful duty is described in more detail in the documents on the principle of universality of service, which applies to all members on exercise and any person applying for a position in the Canadian Forces.
[41] In the case of discrimination, it is not necessary that potential discrimination be the sole or overriding reason for a decision. It is sufficient that the discrimination be one basis for the decision (Holden v. Canadian National Railway Company, (1991) 14 C.H.R.R. D/12, para. 7 (F.C.A.)).
[42] That said, it is obvious that, in society, discrimination is often practised in a subtle manner. In fact, there are rarely cases where one can show by direct evidence that a person has been a victim of discrimination (Basi v. Canadian National Railway Company (No. 1), (1988) 9 C.H.R.R. D/5029, para 38474 (C.H.R.T.)). Rather, according to settled case law, a tribunal must consider all of the circumstances to determine if there exists the subtle scent of discrimination. In so doing, it may rely on circumstantial evidence.
[43] Finally, it is settled case law that an intention to discriminate against a person is not necessary for discrimination to occur (Ontario (Human Rights Commission) v. Simpsons Sears Ltd., [1985] 2 S.C.R. 536, para 28, para 14).
[44] As for discrimination against transsexual individuals, the decision of this Tribunal in Kavanagh v. Canada (Attorney General), (2001) 41 C.H.R.R. D/119 (C.H.R.T.) removed all doubt that discrimination on the basis of transsexualism is discrimination on the basis of sex or gender, as well as discrimination on the basis of disability. That position has been adopted by a number of other tribunals (Ferris v. Office and Technical Employees Union, Local 15, (1999) 36 C.H.R.R. D/329 (B.C.H.R.T.), Mamela v. Vancouver Lesbian Connection, (1999) 36 C.H.R.R. D/318 (B.C.H.R.T.), Sheridan v. Sanctuary Investments Ltd, (1999) 33 C.H.R.R. D/467).
[45] As for evidence, it is settled case law that the burden rests on the complainant to establish a prima facie case of discrimination. A prima facie case is one that covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent. That said, as in any civil proceeding, the burden of substantiating such allegations rests on the complainant (Ontario (Human Rights Commission) v. Simpson-Sears Ltd., supra, para 28).
[46] Once a prima facie case of discrimination has been established, it is up to the respondent to provide a reasonable explanation for the allegedly discriminatory behaviour. If such an explanation is given, the complainant must show that it is but a pretext, and the respondent's behaviour was in fact discriminatory (Basi v. Canadian National Railway Company (No. 1), supra).
[47] As for the prima facie evidence that must be shown in the case at bar, Micheline Montreuil stated in oral argument that it all boiled down to the following: The Canadian Forces rejected the complainant because he considered himself a transgendered person and/or a person in transition and because he allegedly failed to provide the assurance that he would not require medical attention in the 30 years to follow. That is a prima facie case of discrimination on the basis of sex and a perceived disability contrary to section 7 of the Canadian Human Rights Act. Moreover, Micheline Montreuil states that the Canadian Forces have not shown that recruiting him would impose undue hardship, as set out in section 15(2) of the Act and in the jurisprudence of the Supreme Court of Canada.
[48] The respondent argues that the issue at the heart of the prima facie evidence is Micheline Montreuil's credibility: Micheline Montreuil's position is not credible and he has not met the test for prima facie evidence, so one cannot believe the allegations he has made.
[49] As for recruiting, two decisions have defined the tests that must guide tribunals in determining whether or not there is a prima facie case of discrimination. In Shakes v. Rex Pak Ltd. (1981) 3 C.H.R.R. D/1001, para 8918, it was established that the complainant had to prove that he possessed the qualifications required for the position for which he was applying, he was not hired, and a person no more qualified than he, but lacking the distinguishing feature that is the gravamen of the human rights complaint, was given the position.
[50] In addition, in Israeli v. Canadian Human Rights Commission (1983) 4 C.H.R.R. D/1616, para 8918 (C.H.R.T.), it was established that, when a person possessing the required qualifications is not hired and the employer continues to seek a qualified candidate, the complainant must show that he belongs to a designated group under the Act, he applied and was qualified for a position that the employer wished to fill, his application was rejected even though he was qualified, and the employer continued seeking applicants with the complainant's qualifications.
[51] Case law subsequent to Shakes and Israeli specifies the scope of those decisions and the tests defined therein. According to those cases, neither of the two tests should be applied rigidly or arbitrarily in every hiring case, and the tribunal must consider the circumstances of each case to determine if the application of either test, in whole or in part, is appropriate (Montreuil v. National Bank of Canada, (2004) C.H.R.T. 7).
[52] Applying the Israeli test, Mr. Hadjis writes in Montreuil v. National Bank of Canada, supra, that once the complainant has established that he was qualified for the desired position, and assuming that a prima facie case has been proven in all other requisite respects (emphasis added), it falls to the employer, in its explanation, to demonstrate that the complainant was overqualified for the job and that the refusal to hire him was justified as a result.
[53] With respect to this case, the Tribunal has learned of two Tribunal decisions in matters involving the complainant. The first, Montreuil v. National Bank of Canada, supra, deals with a complaint filed by Micheline Montreuil who alleges that the respondent, the National Bank of Canada, refused to hire her because she was a transsexual person. In that decision, it was not disputed that, as a preoperative transgendered person, Micheline Montreuil belonged to a group that cannot be discriminated against on the basis of sex, pursuant to section 3 of the Canadian Human Rights Act. In Montreuil v. National Bank of Canada, Mr. Hadjis found that, in light of the evidence before him, the Israeli test had been met and a prima facie case had been established. In the end, he found that the explanations provided by the respondent for not hiring Micheline Montreuil revealed discriminatory behaviour on the part of the respondent.
[54] The Tribunal notes that, in the decision by Mr. Hadjis, it states that Micheline Montreuil claims on the complaint form that she is a transsexual person who dresses as a woman and who was, at the time (in 1998), in a period of transition to become a woman. Mr. Hadjis then refers to Micheline Montreuil as a transgendered person. The Tribunal also notes that Micheline Montreuil's state of being a transsexual or transgendered person was not at issue in that case, the parties appearing to have acknowledged that Micheline Montreuil was a transsexual or transgendered person.
[55] With respect to that decision, even more important is the fact that Micheline Montreuil's credibility was not questioned, which is not the case in this matter, where Micheline Montreuil's credibility and allegations against the respondent are of utmost importance in determining the outcome.
[56] The second decision of this Tribunal regarding Micheline Montreuil is Montreuil v. Canadian Forces Grievance Board (2007 C.H.R.T. 53). That decision was ultimately upheld by the Federal Court (Canada (Attorney General) v. Montreuil, 2009 FC 60). In that second Montreuil decision, the Tribunal found that there was a subtle scent of discrimination in the respondent's decision not to offer Micheline Montreuil a grievance officer position.
[57] In the decision rendered by Mr. Doucet in that case, it states that when Micheline Montreuil talks about discrimination on the basis of sex, he refers to certain characteristics tied to gender identity or appearance which are such that she does not find herself, in his own words, in a situation that could be described as ordinary. Between what he describes as a normal man or a normal woman, there is the transsexual or transgendered realm. In the decision, Micheline Montreuil states that, between the transvestites and the transsexuals, there are transgendered people, that is, individuals who, like him, choose to live in the clothing of the other sex all of the time. He goes on to state that persons in that group may also opt for certain minor surgical operations to change certain aspects of their appearance, but they will not undergo a complete surgical transformation.
[58] The Tribunal notes that, in that case, Micheline Montreuil's particular condition was not at issue, the respondent having acknowledged that discrimination on the basis of being transgendered is considered discrimination on the basis of sex. The Tribunal took as fact Micheline Montreuil's description of herself, that is, that he was transgendered. It appears from Mr. Doucet's decision that Micheline Montreuil's credibility was not at issue. It is quite otherwise in the case at bar.
VI. Contextual factors [59] Before I address the factors at the root of this matter, such as the possibility that Micheline Montreuil has a sexual identity disorder and a borderline personality disorder, the issue of whether or not Micheline Montreuil met the Common Enrolment Medical Standard, and whether or not the medical employment limitation assigned to Micheline Montreuil and the requirement of a 30-year guarantee were justified, it is important to analyze relevant contextual factors to thoroughly understand the case at bar. Those factors involve Micheline Montreuil's personal life, military enrolment requirements and Micheline Montreuil's military background.
A. Micheline Montreuil's personal life [60] At birth, Micheline Montreuil was registered with the État civil du Québec under the name of Joseph Yves Pierre Papineau Montreuil. In November 2002, the Quebec Court of Appeal allowed a change of name application submitted by Micheline Montreuil. The Court authorized the addition of the given name Micheline to the other given names on his birth certificate (Montreuil v. Directeur de l'État civil, [2002] R.J.Q. 2911 (C.A.)).
[61] Micheline Montreuil testified that he initiated the name change procedure in October 1997 but had already been using the given name Micheline before that, starting in 1986. He acknowledged that that was not brought to the attention of the Canadian Forces in his application for enrolment, submitted in 1995. Micheline Montreuil also testified that he considered himself in part a transgendered person in 1997 and that he became officially transgendered on May 13, 1998.
[62] Micheline Montreuil explained in his testimony that he initiated a name change in 1997 to add the given name Micheline to his existing given names so that he could use the given name Micheline on his driver's licence, so that his driver's licence would match his credit cards and make it easier to travel abroad as Micheline Montreuil. Micheline Montreuil also testified that he had been travelling as a woman since 1994 and that he had given lectures in the United States as a transgendered person in 1997, when he was a member of the Reserve Force. Micheline Montreuil stated in his testimony that that was never brought to the attention of the Canadian Forces, as the Canadian Forces had never asked the question.
[63] The development of Micheline Montreuil's identity is described in detail on the website created, according to the evidence, by Micheline Montreuil in late 2001 or early 2002. The information at that website was therefore not known by the Canadian Forces when they dealt with Micheline Montreuil's application for enrolment. However, the evidence reveals that Doctor Assalian and his team visited Micheline Montreuil's website after they interviewed Micheline Montreuil on May 18, 2006.
(i) Micheline Montreuil's website [64] Micheline Montreuil's website is divided into a number of sections. Although the evidence indicates that it was created after Micheline Montreuil's application for enrolment was rejected by the Canadian Forces, the information on the website remains relevant to this case, in that Micheline Montreuil describes his own development.
[65] Micheline Montreuil stated in his testimony that the developmental path described on his website is neither that of a transvestite, who would never regularly appear as such in public, work as a woman or regularly assume a female identity, nor that of a transsexual person, since the path of a transsexual is faster and more violent. He claimed that his website describes the development of a transgendered person.
[66] Micheline Montreuil's website includes a section entitled Micheline the Transgender. That section contains the following headings: Why am I become a transgender? [sic] How am I become a transgender? [sic] From transvestite to transsexual.
[67] Under Micheline the Transgender, Micheline Montreuil states that she has a dual personality. As for the question Why am I become a transgender? Micheline Montreuil says that that is probably the only question to which she has no logical or certain answer. She goes on to say that the only response that comes to mind is that she felt deep within himself a desire to live differently and that her appearance was not the way she wanted it to be. She states that one person may prefer the city while another prefers the country, one person may want children while another does not and, lik