BC College of Nurses and Midwives v. Amy Hamm

The Justice Centre is defending Amy Hamm, a Vancouver-area nurse, in an investigation by the BC College of Nurses and Midwives (BCCNM), after complaints were filed against her because of her “gender critical” views and her sponsorship of an advertising billboard expressing support for famed children’s author, J.K. Rowling. Ms. Hamm, a single mother of young children, is facing calls for her to be permanently removed from her career in nursing for expressing her opinion on an important issue currently being debated in the public square.

Gender critical feminists typically profess that transgender people have the right to live their lives with dignity and without harassment, but that identification as trans does not equate to literally changing sex. Conflating sex (a biological classification) with self-identified gender (a social construct) poses a risk to women’s rights, particularly in settings where natal women have an expectation of same-sex privacy and protection, such as women’s prisons, changerooms, and rape shelters. Women’s sports are another area where the implications of the biology-versus-gender debate have real impact, gender critics note.

In December of 2019, Harry Potter author, J.K. Rowling, spoke up on Twitter in defense of a British woman, Maya Forstater, whose employment contract was terminated because she, too, expressed gender critical views. Following her tweet, Ms. Rowling was accused of “transphobia”, denounced by many celebrities—including some of those who were made wealthy by her books—and suffered a deluge of vile social media abuse. Ms. Rowling ultimately wrote a piece to explain why she was an ardent defender of women’s rights, and how that in no way meant that she was “transphobic”.

In response to the tempest over Ms. Rowling, nurse Amy Hamm co-sponsored the installation of a Vancouver billboard ad in September 2020, which simply proclaimed “I ♥ JK Rowling”. Ms. Hamm’s sponsorship of the billboard was referenced in a CBC article, in which she was quoted as saying, “Women’s rights are important and we need to stand up for them and it’s not transphobic to do so.” After a city councillor condemned the billboard on Twitter the advertising company quickly took steps to replace it. During the 30 hours the billboard was up, it was defaced by opponents throwing paint.

Shortly thereafter, a self-proclaimed “social justice activist” complained to the BCCNM that Amy Hamm’s alleged “transphobia” made her unsuited to her career as a nurse and called for Ms. Hamm’s removal from her current and future nursing positions. A second anonymous complaint was also submitted to the College, which accused Ms. Hamm of “promoting and stoking hate speech towards trans and gender‐diverse communities”.

Meanwhile in the UK, Ms. Forstater’s case at the employment tribunal was initially lost on the basis that her gender critical perspective— essentially that biological sex is real, important, immutable, and not to be conflated with gender identity—was not a protected belief. The tribunal had found that gender critical beliefs were “not worthy of respect in a democratic society.” Ms. Forstater appealed the decision, and last month was vindicated by a judge who ruled that Ms. Forstater’s gender critical beliefs, which were widely shared, including by respected academics, and which did not seek to destroy the rights of trans persons but only to protect the rights of biological females, were entitled to protection under the UK Equality Act.

In Ms. Hamm’s case, the College could have screened out the complaints on the basis that they were vexatious, frivolous, or made in bad faith. Instead, the matter was referred to the BCCNM Inquiry Committee for further investigation. A 332-page report, much of which is comprised of tweets and articles by Ms. Hamm, was provided to Committee, which is now considering the matter. The Justice Centre also presented detailed submissions to the Committee on Ms. Hamm’s behalf, arguing that professional misconduct must not be permitted to be redefined to include speaking unpopular truths, and that to do so is to undermine the very foundations of a free and democratic society. Furthermore, the Justice Centre submitted, the College is tasked with keeping patients safe and regulating the profession in the public interest, and not with giving social justice activists a tool for ‘cancelling’ people with whom they do not agree.

At this stage, the matter may either be dismissed or proceed to a disciplinary hearing if Ms. Hamm does not agree to any proposed “consensual resolution” terms. The Justice Centre and Ms. Hamm are concerned that activists are now weaponizing the professional regulatory regime to intimidate opponents and punish opinions outside of a narrow orthodoxy, thrusting professionals into a stressful and often lengthy disciplinary ordeal which they are told they may not discuss. In this case, there are no patient complaints, and no confidential medical records in issue—just activists expressing “concern” that Ms. Hamm’s views should prohibit her from a career as a nurse. In the view of the Justice Centre, the public has a right to know that regulatory bodies are vulnerable to this abuse, and that there has been a recent rise in politically motivated complaints across Canada against professionals who express opinions contrary to the accepted narrative, whether that be gender critical views or opposition to lockdowns.

Professional governing bodies are created by statute and are therefore subject to the Charter of Rights and Freedoms. The Justice Centre’s submissions defend the right of health professionals to express their opinions on matters of policy in the public square and argue that everyone is entitled to freedom of thought, belief, opinion, and expression, as guaranteed by the Charter—including health professionals. The Justice Centre noted that attempting to have a nurse professionally disciplined for her opinions and commentary on matters of public interest amounts to bullying and should not be encouraged by the College.

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