The Myth of “Special Rights”

(Originally written for GayCalgary Magazine, and adapted in response to “When Some Are More Equal Than Others“)

Recent years have seen a regression with regards to the concept of human rights.  Most often, this push-back is in response to legislation that would protect lesbian, gay, bisexual and / or trans people, and is often accompanied by claims of infringement on freedom of speech, and / or that human rights legislation grants “special rights” to protected classes.

Complaints about “special rights” often look like the response to the Canadian trans rights Bill C-389 made at Timothy Bloedow’s Christian Governance, by John Newnham:

“So someone assaulted allegedly over being a transvestite is considered more valuable in law than a plain ordinary victim of domestic violence or hit and run.”

And ironically, in the course of making this claim, writers will often simultaneously say that equality would be best achieved by not naming classes in legislation, while at the same time making a case as to why they feel the class in question shouldn’t be entitled to equal rights under the law.

Asserting dignity and equality for all in employment, housing et al is not a radical idea.  If it were possible to write legislation that was honored in that spirit, I think we would all be happy to do so.  Unfortunately, the reality is that at home and around the world, societies’ practices are largely focused on who they want to exclude from human rights.  With the advent of trans rights Bill C-389, we’re seeing a number of religious right commentators demanding that trans people should be excluded from rights legislation because of unfounded (and historically familiar, when one remembers racial segregation) fears about washrooms.  Elsewhere, 79 nations voted specifically to exclude sexual orientation from a UN resolution condemning executions based on prejudice.  Unfortunately, it becomes necessary for government to send a signal that it is not acceptable to make decisions that would marginalize or exclude people on the basis of these characteristics.

Of course, when categories are included in rights legislation, they are meant to work both ways.  For example, sexual orientation ideally protects one from discrimination because they’re straight as much as it protects them because they’re gay.  The intent is simply that orientation should not be the basis of decisions on hiring and firing, availability of residences and resources, or whether or not to do violence on someone.  If it seems to protect a specific subset of that, that’s because that kind of discrimination in its extreme form is almost exclusively levelled at that subset.  And if such a disparity exists, then it illustrates exactly why the legislation is necessary in the first place.

Canadian Human Rights legislation also provides a key means of balancing rights conflicts by taking into account context, and giving a caveat for “undue hardship:

The term “undue hardship” refers to the limit of an employer’s capacity to accommodate without experiencing an unreasonable amount of difficulty. Employers are obligated to provide accommodation “up to the point of undue hardship.” This means an employer is not expected to provide accommodation if doing so would bring about unreasonable difficulties based on health, safety, and/or financial considerations.

There is no precise legal definition of undue hardship, nor is there a standard formula for determining undue hardship. Each situation is unique and should be evaluated individually. Undue hardship usually occurs when an employer cannot sustain the economic or efficiency costs of the accommodation.

Generally, some hardship can be expected in meeting the duty to accommodate. Employers are required to carefully review all options before they decide that accommodation would cause undue hardship. It is not enough to claim undue hardship based on an assumption or an opinion. To prove undue hardship, employers have to provide evidence.

Despite the portrayal by the far right as elevating trans people above the average Canadian, Bill C-389’s proposed protections apply to both trans and non-trans people alike based their on gender identity and expression – in fact, this is an added advantage of the legislation, in that it finally encodes in law that women can’t be discriminated against for being too masculine, or men for being to effeminate.

Often without protective rights legislation, it becomes common for people to excuse discrimination — even hatred that leads to violence or murder, such as the tragedies we remember at the Transgender Day of Remembrance, commemorated on November 20th of every year — as being somehow justified, thereby devaluing the lives of the victims.

Human rights legislation does not elevate some classes of people above others, but instead affirms that it is wrong to base prejudicial actions on characteristics which are commonly met with prejudice.  In an ideal world, of course, we would all realize that all are created equal, but it doesn’t happen that way in practical reality.  So the reminders have to be codified into law… because there is always disagreement about who should be treated fairly and what the limit to fairness should be.

The net result, then, is that bills like C-389 do not seek to make some people “more equal” so much as to address the current state of being “less than” to a point that critically impedes life for entire groups of citizens.

Questioning Aspiration and Motivation

Although rooted in enlightened concepts that were described as “natural rights,” human rights were revisited following the Second World War, in the wake of attempting to understand the first incidence in the Western World in which a democracy granted power to and collaborated with a destructive regime which targeted specific classes of its own citizens.  Prior to the rise of Nazi Germany, it wasn’t really thought that something like the Universal Declaration of Human Rights was even necessary; afterward, nations understandably wanted to avoid ever taking the same path of fear, terror and hatred that they had witnessed on the international stage.

But even at its genesis, the modern human rights discussion was troubled by disagreements as to whether rights should encompass political and civil rights only, or also include economic and social rights as well.  Dissenters felt that economic and social aspects were aspirational rather than intrinsic — much like arguments heard today, in which some will challenge the right of people who they broadly and without care for circumstance characterize as “lazy” to various forms of social assistance.  In this way, human rights have gradually and unjustly become seen as a socialist threat to capitalism, in a world where the memory of Nazi Germany is fading, but the increasing scarcity of wealth has come into stark focus.

Added to this has been the struggle that some have with seeing rights for LGBT people specifically as a civil rights struggle.  Some prefer to pick and choose who should be eligible for recognized equal rights, often trying to distinguish between birth characteristics and what they characterize as being choices.  And even at that, many fail, refusing to recognize gender variant people born with an intersex condition like Androgen Insensitivity Syndrome or Congenital Adrenal Hyperplasia (witness the ongoing troubles in sport facing Caster Semenya and Santhi Soundarajan), or expecting rights guarantees to safeguard their faith, while opposing the rights of those from another faith.   Choice invalidation also gives an out to prejudiced people for whom things like colour become an indicator that triggers presumptions about one’s motivations, culture, lifestyle, behaviours and tendencies.  Doing this, they become blind to their prejudice because they’ve seduced themselves into believing that what they’re reacting to is not really the trait itself, when they’re acting on the unspoken and often inaccurate smorgasbord of inventions that go with it.

From a decolonial perspective, the concept of human rights is actually flawed.  Legislation granting rights is prescriptive, and retains focus on disparate classes rather than dismantling borders and territories altogether — a colonial response to colonial thinking.  Decolonialism assumes value and inalienable rights for everyone, which should not be deprived on any irrational basis (the term “irrational” leaves open a proviso that allows the judicial system to step in when someone has violated legal and ethical standards).  Prescriptivism is a limited solution to a complex problem.

That said, without an entire reframing of law to eliminate colonial mechanisms used to sanction oppression (or better but perhaps less possible, a societal changing of hearts and minds), human rights legislation remains the necessary evil, to prevent hysteria and hatred from escalating to deliberate marginalization, terror and eventually genocide.

Genocide in 2010

Mr Bahati’s Anti-Homosexuality Bill stipulates the death penalty for repeated same-sex relations and life imprisonment for all other homosexual acts. A person in authority who fails to report an offender to the police within 24 hours will face 3 years in jail. Likewise, the promotion of homosexuality carries a sentence of 5 to 7 years in jail.

Tragically, we’ve seen a dramatic surge in hatred toward LGBT people specifically because they’re lesbian, gay, bisexual or trans, most visibly in Uganda.  When Exodus International board member Don Schmirer, historical revisionist Scott Lively and ex-gay “counsellor” Caleb Brundidge travelled to Kampala to fan the flames of anti-gay sentiment in February of 2009, American far-right evangelical groups saw an opportunity.  Uganda had been a key area where funding has been targeted to address the spread of HIV worldwide, and many of these programs, including PEPFAR, have faced special limitations to make non-governmental organizations that assist people like sex workers ineligible for funding.  By stirring up anti-gay hysteria and pushing for laws like Uganda’s Anti-Homosexuality Bill (which would also criminalize organizations that advocate for LGBT people), evangelicals found an opportunity to have virtually exclusive access to the billions of dollars in AIDS relief funds — not for condoms, but to proselytize in the guise of abstinence-only education.  It is possible that the death penalty was an unintended consequence, although what little response there has been from American evangelical leaders now to condemn the bill has been weak and half-hearted.  In the process, the Ugandan government found it a way to unite their people against a common enemy, and religious extremists like Martin Ssempa seized upon it by burning condoms, subjecting congregations to graphic depictions of anal sex, and conflating homosexuality with pornographic scatophilia in slideshows designed to regularly whip the public into raging mob mentality.  While one local newspaper has been publishing photos of alleged gay people and inciting the public to burn or hang them, the Anti-Homosexuality Bill is once again inching toward government passage.

And again, we remember why human rights are necessary.

Free Speech, Incitement and Harassment

It is not unusual for the far right to complain that granting rights to LGBT people will infringe upon their freedom of speech.  Usually, it will be cases like the ruling by the Alberta Human Rights Commission against Rev. Stephen Boissoin (since overturned) that people will point to, or occasionally legal actions against more fringe people like Bill “anal warts” Whatcott.

Speech is a nebulous thing to try to regulate, and will always need a context to determine when enough harm occurs that it has gone beyond “hurting feelings” (as some minimize hate speech to being) to causing incitement or real damage. And if it needs context, then there will never be any legal absolutes that will definitively solve the issue.

That said, there are some types of speech that are commonly recognized to be harmful, regardless of where people stand on the issue:

Incitement – Directly encouraging violence upon a person. Even many free speech proponents realize that our society can’t just allow someone to shout outright, repeatedly and relentlessly, that “we need to take up arms and kill all _______s,” especially in an environment where “_______s” are unpopular, and the person is likely to have others take the speaker seriously enough to actually attempt to do so. And if someone does incite others to commit acts of violence, those proponents can often understand making them a party to the crime, in terms of conspiracy-related charges, etc.

So when does it become incitement? The Protocols of the Elders of Zion never actually state within their covers that violence should be done to Jews, but the passages whip up such fear and hatred that many times throughout history, violence became the most logical conclusion.

The same could be asked of the anti-gay sentiment bandied around today. Individually, statements that fear monger or pontificate about LGBT people are just statements — even quoting Leviticus 20:13. Cumulatively, though, the environment makes it likely that someone’s going to get hurt… or else bullied enough that queer kids start taking their own lives in large numbers. Something’s broken, and yet the statements that drive it are intangible enough that it becomes difficult to know where that line should have been drawn.

That’s the problem with the Boissoin decisions. Did it become incitement? Within a couple weeks of Boissoin’s letter being published, there actually was a violent attack, and it was felt by the AHRC — but not felt by the appellate court — that the letter helped to create an environment where that attack became likely to happen.

Harassment – Something else our court recognizes is harassment, and again, context is everything. If someone tells their co-worker once that they think homosexuality is a sin, well, that could be justified under freedom of speech. But stating it multiple times, every time he or she passes their desk, in every email they send, in any conversation spoken loudly with others while near that co-worker, making an environment where it becomes very difficult and very unfriendly very fast and impossible to function… that’s “expressing an opinion,” but it’s also clear harassment. But what about activity that’s in between? Incidental conversation where it’s unclear if there was any intent… Context. And for those who might state that even the extreme case is justifiable, swap out “homosexuality is a sin” for “all religious leaders are pedophiles,” and they might feel differently.

Hate speech is never free. It drives minorities underground, into hiding, into fear and shame, it becomes an impediment to fulfilling their dreams or even just going out to the grocery store. While freedom of speech is something definitely worth valuing, if proponents seek total unrestrained speech in law, then they need a clear solution to mitigate this effect. And leaving it up to “personal responsibility” is just not good enough, because people are just not that responsible — as witnessed by our entire code of laws.

Bill C-389 Status Update

Trans rights Bill C-389 should be coming up for Third Reading and final vote before Canada’s Parliament, possibly in early December.  After that, it proceeds to the Senate, which is usually a rubber-stamp (although some are concerned that C-389 may become an exception).  Now, more than ever, it is important for our allies, parents, friends, co-workers and people who actually know real trans people to contact their Members of Parliament, express support, and inform about what trans people are actually like.

(diaried at Pam’s House Blend)

  1. Oh Bog, the appalling ignorance and entitlement in the comments to that Sun article!

  1. December 29th, 2010

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