The lawyer for a B.C. nurse facing a disciplinary hearing over her gender-related online comments told the regulatory body its decision could mean “disaster” for the standing of the nursing profession.
Final arguments for Amy Hamm were heard by a B.C. College of Nurses and Midwives (BCCNM) discipline committee panel on March 18 and 19. The college started its investigation in November 2020, and the disciplinary hearing began in 2022.
‘Disaster’ for Nursing Profession
Ms. Hamm’s lawyer, Lisa Bildy, said that if the disciplinary panel rules against the nurse, it would be “a disaster for the standing of the nursing profession” in the public eye.“It would suggest that the institution is incapable of the political neutrality required to govern the profession in the public interest,” she said.
The lawyer also questioned whether it was reasonable to assume that anything said by someone belonging to a regulatory body is “fair game for regulation.”
If an individual wants to speak about a controversial topic in the public square, “as a regulated professional, apparently no one can know what you do for a living,” Ms. Bildy said.
She cited the case of Leah McInnes, a Saskatchewan nurse who was accused of spreading misinformation. In that case, the Saskatchewan nurses college discipline committee determined that its investigation committee should not have referred her case for discipline.
Nurse Designation Adds Credibility: College
Representatives for the BCCNM argued that Ms. Hamm’s comments were “discriminatory and derogatory” to transgender people and violated the standards of the nursing profession.Barbara Findlay began her opening comments by asking the panel to engage in an exercise of imagination, walking them through a fictitious scenario. It involved a masculine-looking woman repeatedly being misgendered by airport staff. Then she asked the panel to imagine how that could apply to a transgender person as well.
Ms. Bildy later criticized this exercise of imagination.
“Ms. Findlay’s little thought exercise was interesting but as you know the panel has to decide cases on the facts before it, not on fantasy and an imaginary litigant,” she said. “If the facts were strong enough against Ms. Hamm, Ms. Findlay wouldn’t have to make them up.”
The college focused on the fact that Ms. Hamm made her “discriminatory” comments while identifying herself as a nurse.
“Designation as a nurse is there for the purpose of adding credibility and it does add credibility to her statement,” Ms. Findlay said. “The public expects that if something is said by somebody who identifies herself as a nurse, that is going to be something accepted by the regulated profession of which she is.”
Ms. Findlay went on to say that “the college is not saying what the respondent can and cannot say” as a private individual, and that the concern arises when statements that are “discriminatory or derogatory” to trans people are made by a nurse.
She also said that Ms. Hamm’s freedom of speech “must yield” when her comments cause harm.
The college cited the Waterloo School Board case where former teacher Carolyn Burjoski was silenced during a school board meeting after raising concerns about content in books available to students. The school board chair stopped Ms. Burjoski’s presentation, saying she was violating the Ontario Human Rights Act with her language.
“The court said the decision was ultimately about Burjoski’s choice of words which were, in the opinion of the board, derogatory, and contrary to its bylaws, the objectives of the Education Act, and potentially the Human Rights Code, as gender identity and expression are both explicitly listed as protected grounds under both the Education Act and the Human Rights Code,” she said.
Ms. Burjoski has filed a leave to appeal the judicial review decision.
“I think it is abhorrent that trans people have not had proper follow-up surgical care in Canada and I’m so grateful that Smith wants to make that better, at least in her province,” she said.
