Rolling up their shirt sleeves

Human Rights hearing looks at whether it's OK for bars to enforce different dress codes for men and women

A human rights tribunal will decide whether a dress code enforced by a Kamloops nightclub that bars men but not women from wearing muscle shirts is discriminatory.

The hearing at the Kamloops courthouse Wednesday morning featured elements of comic theatre early on when complainant Dorian Payne switched similar sleeveless shirts with his sister, Alisoun.

Payne's lawyer, Carey Linde, also introduced a series of women clad in sleeveless shirts the first with lace and narrow straps, another wearing more formal style with broader straps and a third in a plain muscle shirt, during cross-examination of a bar owner.

Each time he asked, "Does she have on a muscle shirt?"

But its conclusion became dramatic when an RCMP gang unit member made a surprise, and late, entry to ask for intervenor status, arguing the rules allow bars to keep out gang tattoos.

"This has huge implications for all primary liquor licence holders in B.C.," said RCMP gang unit member Const. Paul Christensen, wearing street clothes.

Tribunal member Marlene Tyshynski will rule later this year whether the Blue Grotto can apply a dress code that is identical for men and women, except when it comes to muscle shirts.

The incident arose in summer 2008 when Dorian and his sister were at the Blue Grotto downtown. Alisoun was allowed in wearing a muscle shirt while Dorian had on a long-sleeved shirt.

But nightclub staff asked Dorian to cover up or leave when he doffed his long-sleeved shirt to reveal a muscle shirt beneath. Owners at the hearing argued muscle shirts on men are intimidating to older clientele and sometimes reveal gang tattoos.

"What is the least bit intimidating about Mr. Payne?" asked Vancouver lawyer Linde about his client, a wiry and diminutive Dorian.

One of the Blue Grotto owners, Teri Willey, said she did not personally find Dorian Payne to be intimidating.

"(But) to some of our older patrons, yes."

Co-owner Kevin Willey said men wearing muscle shirts may present a problem when there are too many in the club.

"Not everyone is the same body size as this gentleman," he said of Dorian. "Our experience is that five or six walking around is trouble. We can't let one have it on and not the others."

The bar requires men who come in wearing a muscle shirt to pull on a t-shirt overtop, which it provides and allows patrons to take home. The bar also forbids showing of gang paraphernalia.

During cross-examination. Kevin Willey agreed with Dorian's lawyer that men and women both frequently have tattoos. But Willey noted those on women "don't say 'I support Hells Angels.' They don't say 'I support Independent Soliders.'"

Const. Christenson made a late application to ask for a continuation of the hearing so that provincial bar watch association and police could present evidence. He said they were not aware of the matter until late Wednesday morning.

"This is not something that will single out one individual," Christenson said of the muscle shirt decision, arguing it could have implications across B.C. because clubs may lose ability to demand covering up of gang tattoos.

"They (Bar Watch) want to fly a lawyer up here right away."

But Christenson's last-minute appearance and appeal to provide evidence came during closing submissions.

Tribunal member Tyshynski said ignorance is not an excuse for not following process of the tribunal. She denied the request for intervener status and ruled the hearing complete.

"It's unfair (to the complaintant) to be taken by surprise at the close of a hearing," she said.

Linde urged her to find Blue Grotto's rules are discrimination in service based on sex and against B.C.'s Human Rights Code.

"No one is taking issue it's appropriate for an establishment to have a dress code," he argued. "We have one dress code for men and another for women. That's inequality and discrimination based on gender."

The code does allow exemptions based on public decency.

Linde said Dorian's father, Laurie, once made a discrimination complaint to the tribunal. He objected to marketing efforts by bars that provided free drinks to women, but not men, on some evenings.

The complaint was not successful.

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