Archive for the ‘ Gender Diversity ’ Category

On the Detention of Trans People

“… in a way that is not inconsistent with one’s gender identity.”

Remember that phrase.  It’s going to simplify something that might otherwise seem like a complicated issue.

So this British comedian walks into Toronto’s Pearson International Airport.

Some of you have heard this one before…

The treatment of trans people (particularly trans women) in detention facilities, in the correctional system and in border security has come under re-examination recently, following the story of 25-year old Avery Edison.  The British comedian had overstayed her student visa during a previous visit to Canada, and so upon her return, she was detained by the Canadian Border Services Agency (CBSA).  That would all be unremarkable, if not for the fact that she is trans… which means that CBSA did not feel they had a space to accommodate her, and instead sent her to spend the night in a mens’ prison.

This led to a backlash against CBSA (and to a degree also Correctional Services Canada, which has a similar policy to CBSA and which provided the prison facility).  By evening, it was being reported that Avery was being moved to the Vanier Centre for Women.  She has since returned to the U.K. (and has talked about the experience on a few occasions).

But although Edison’s situation has been resolved, her experience leaves unanswered questions about how trans people are handled in correctional and detention systems.  And since her situation, two other incidents have brought the issue back to media attention.

A Human Rights Law Point of Note

Human rights law with regard to trans people is still in a state of flux.  In the discussion about Avery’s situation, people pointed to Toby’s Act, a trans human rights law that had been passed in the Province of Ontario, and claimed that the detention was a violation of that law.  But even though Edison’s detention happened in Toronto, Toby’s Act does not apply.  The Canadian Border Services Agency (CBSA) — like Correctional Services Canada (CSC) and the RCMP — is a federal agency, and therefore subject to federal legislation.

On the other hand, Randall Garrison’s federal trans human rights bill, C-279 — which passed in Parliament and is awaiting approval by the Senate — would apply… but it hasn’t received Royal Assent as of yet.  A similar but more comprehensive bill (Bill Siksay’s C-389) passed in the previous Parliament, but died before receiving Senate approval, when an election was called.  C-279 would apply to federal institutions, while most peoples’ employment, housing and access-to-service situations remain provincial in jurisdiction.  And to be fair, even if Bill C-279 had been given Royal Assent, it would still likely take CBSA, CSC and other federal agencies some time to bring their policies in line to be consistent with it.

However, they have had since at least 2011 to realize that there would eventually need to be a policy change, and have not done anything (including other previous issues at the border alone, in 2013).  A trans human rights law will inevitably pass, whether in this session or in the next Parliament.  The time to plan for and begin that change is now.

Housing of Trans Inmates and Detainees

Correctional and detention facilities currently house trans people (and people who were born with intersex medical conditions) according to the configuration of their genitalia — if you have a penis, you’re housed with males, and if you have a vagina, you’re housed with females.   This policy is also accompanied by a lot of gender essentialism, invalidation, misgendering and antagonism, both from hostile staff and from other detainees or inmates.  And although some will minimize this as inconsequential or as mere expressions of free speech, the lived experience of it is in fact one of deliberate and sustained hostility and dehumanization.

This housing policy can create a cyclical problem in which trans people are housed contrary to their gender identities because of their genitalia, but are also then denied access to medical care like genital reassignment surgery (GRS), which would (by extension) be a crucial step toward obtaining more appropriate housing.  In the U.S., a 14-year-long series of lawsuits pertaining to access to medical services continues, following the appeal of the most recent verdict in Michelle Kosilek’s favour.  In Canada, a human rights complaint had resolved the issue in trans peoples’ favour in 2001, but a 2010 directive from the Harper government instructed CSC to stop funding GRS surgeries, anyway.  The post-2001 policy is still on CSC’s website, but it’s unclear what the actual practice currently is.

Of course, there are two larger issues outside of this vicious circle.  The first is that “trans” covers a diversity of people.  Trans can signify a biological transition from one’s birth sex to their identified sex (which treads into medical territory, and refers to the people most commonly thought of), or a need to live between genders or independent of gender somehow (mostly through various modes of gender expression, but also sometimes involving some medical transition) — or some combination of those two characteristics.  [NB: the reason I use "trans" terminology, in fact, is to demonstrate that I'm referring to a diversity of people who are not easily defined under a single label]  For trans people who need surgery, there is often an anxiety and dysphoria that can make it a substantial and urgent need — but not all trans people experience that dysphoria or require surgery.

That leads to the second larger issue — that a person shouldn’t have to undergo major surgery/ies in order to be entitled to the same human rights and dignity as their peers.

And everyday practice does not always align with policy, for that matter. In American prisons, there have been cases where housing was sometimes not even determined by genitalia or identification documents — even though those are the policies — but by a subjective visual assessment of a person’s gender.  And sometimes, they have been completely wrong.  It has certainly led to trans women being housed with men even if they have had genital reassignment surgery.  Canadian prisons may have a better track record in this regard (although Avery Edison had a female gender marker on her ID), but it really depends on the employees empowered to make judgment calls.  We’ll return to that point.

Identity Documents

Part of what discourages institutions like CBSA and CSC from addressing trans accommodations is the fact that identity documents further confuse the issue.

Most provinces have policies requiring surgery and a doctor’s examination of genitals before gender markers can be updated — something that brings up human rights issues, especially when one considers that a genital reassignment surgery requirement is also a form of sterilization, essentially barring trans people from future procreation.  If that sounds like stretching to you, it’s worth remembering that at one time, some countries consciously codified this into their laws.

This surgery requirement creates hardships, however.  As not everyone medically transitions and/or proceeds to surgery, this results in incongruent identification.  For those who do transition medically, the process is at minimum a year (recommended by the current medical standards of care set by WPATH), but more often takes several, especially when there are barriers in accessing medical care, financial issues and other challenges.  During this time, incongruent identification opens people up to disenfranchisement, discrimination and even violence.

For this reason, some provinces have been revising their policies.  This is an important step to allowing trans people to participate in society, but in the interim, it also creates a situation in which identity documents are inconsistent from province to province.

In terms of border security, they’re even less consistent from country to country.  Some provinces (and some U.S. states) do not allow trans people to change the gender marker on their identification ever (regardless of surgical status).  A few nations are now starting to include the option of third gender markers (such as “X” for “not specified”).

And even when policies of accommodation exist, sometimes the steps to get there are amazingly inscrutable — witness this handy flow chart spanning three pages, outlining the steps a trans person needs to go through to obtain a gender-congruent passport, in Canada.

Consequently, identification documents can’t — at this point in time, at least — provide any definitive guidance on how trans people should be housed in correctional or detention situations.

(Trigger warning: there is some general discussion about rape and the fear of potential rape situations below)

“… in a way that is not inconsistent with one’s gender identity.”

Entities like CBSA and CSC are often afraid to look at changing their policies on trans people because it seems too daunting a task — and the complexities of identification certainly reinforce this impression.  Often, the idea of housing a woman who has a penis with other women also brings up the spectre of rape in womens’ institutions, and so correctional systems can be loath to considering change.

It is unreasonable to assume that women who have penises are automatically potential sex predators.  On the other hand, it is also unreasonable to require that all women with penises be accommodated in general female populations.  What’s missing is context, and a reasonable assessment of the risk that any individual (because predators exist in any characteristic population, even among cis women) poses to others.  A woman with a history of violence is justifiably going to be viewed differently from one who overstayed her visa.  An individual’s history must absolutely be taken into account.  Accommodation as one’s identified gender is an ideal situation, but violence, predation and other factors in detained individuals’ histories certainly has to be considered.

And yet, the solution is far easier than one might expect.  Housing trans people “in a way that is not inconsistent with their gender identity” allows for situation-relative options, while still providing dignity for trans people and safety for all concerned.  Accommodations for a trans woman might be a female facility, a trans- or LGBT-focused facility, short-term isolation or semi-isolation, or some other alternative.  No one solution fits all — for example, a trans-focused wing might still deny people access to programs that are available to other inmates and which they would otherwise qualify for — so a final decision is inevitably context-dependent.  Individual histories and risk assessments can be taken into account.  Individuals can be moved according to the varying levels of risk they both pose and are potentially subject to from other inmates (the latter seems to often be forgotten when discussing housing of trans people).  And yet a trans woman’s identity as a woman can still be respected.

One’s gender identity can be determined through a combination of factors, starting with a person’s own self-identification, and verified through supporting information, such as the individual’s gender expression, their identification (if updated), the name that they are currently using (i.e. if found on a piece of mail or correspondence on their cell phone), a letter from their doctor, or other supporting information.  There should be some flexibility, because hard-specifying particular forms of verification can be problematic: for example, not everyone can afford to update their legal identity information; also, requiring a letter from a doctor can create an institutional barrier to being accorded one’s human rights.

An individual’s own wishes should also be taken into account.   For example, some trans men are uncomfortable with the idea of being housed with males in detention and correctional systems.  And some trans people do not identify as either gender.

Although there may not be a hard-and-fast rule for every situation, housing trans people “in a way that is not inconsistent with their gender identity” provides a respectable base from which to start, within the context of nearly any given situation.

It’s More Than Housing

It’s absolutely crucial that staff receive training on professional communication with and treatment of transgender and gender nonconforming inmates.  They also need to be aware of intersex conditions enough to respect individuals who may not identify as trans, but still not neatly fit into binary housing defined by physical sex.

Police forces have begun to revise their policies surrounding strip searches of trans people, so that they’re searched by a person of their identified gender, or else they can opt for a “split search,” with one male and one female officer.  This is because strip searches of trans women by male officers has historically resulted in abuse, and resulted in a 2006 ruling asserting trans peoples’ right to dignity.

Correctional and border security institutions need to adopt similar policies, and to also ban gratuitous searches or physical examinations of transgender inmates and those with intersex conditions solely for determining their genital status.  If the need for a genital examination arises outside of a necessary strip search scenario, it should be conducted by medical professionals, with the understanding that the option to be examined by a medical professional of ones identified gender should still apply.

Rape and Torture Were Not the Penalty

People who are incarcerated in the correctional system are usually not given a lot of sympathy, and people detained by border and immigration services have been increasingly seen with the same kind of negativity (or at best, ambivalence).  It’s important to remember that regardless of what a person has done, they’re still entitled to due process and the same rights and dignity of others in the correctional system.  We certainly don’t sentence people to prison rape, for example.  As soon as a person is targeted for specifically additional treatment because of who they are, that quickly becomes cruel and unusual punishment.  And it’s important for social movements to care about all of those within their constituencies — even those who make mistakes.

In the case of trans people in detention situations or worse, that cruel and unusual punishment starts with constant hostility and antagonism pertaining to their gender identities.  Pronouns and names become weapons, and that is simply the start.  Trans women housed in male facilities also become very obvious targets for potential rape.  This is significant, and it can be argued that by consciously and deliberately housing trans women with men, the Canadian government may in fact be institutionally sanctioning that rape.

Institutions usually try to reduce this risk of rape by keeping trans people in administrative segregation — a nicer way of saying “solitary confinement.”  This removes social interaction almost entirely, it is psychologically devastating, and the United Nations asserts that over 15 consecutive days of solitary confinement classifies as torture.  For trans women, solitary confinement is sometimes the full length of their incarceration.

Avery Edison’s story and those that have followed reveal not only a problem with housing by CBSA and CSC, but also a severe education issue among staff in both the border and correctional systems. Both can be remedied… it’s just a question of whether institutions want to do so.

The Difficulties in Remembering Rosa

RosaRibutIn the early morning hours of November 24th, the body of a possibly trans person was found in Edmonton, Alberta.

I say “possibly trans” because it’s unclear how this person identified, and to my knowledge, no one in the trans community has met them or would be able to shed light on who they were.  And unfortunately, for this reason, I need to open with the following preamble:

The victim has been identified by the Edmonton Police Service as Jon Syah Ribut.  However, she also used the names Rose, Rosa and Dido. In the Edmonton Journal, Paula Simons noted that  “… it’s not clear whether Ribut saw himself as transgender — or as a gay man who sometimes liked to cross-dress — or as something else altogether….” Although Simons (a journalist who is is trans-aware and trans-positive) uses male names and pronouns, it’s clear that she’s conflicted about it and knows that more information is needed.  I will be using a female name and pronouns instead, but want to stress that both Simons and I are making a guess, and either of us could just as easily be wrong.

Rosa Ribut died of blunt force trauma, and 20-year-old Marcel Cristian Niculae has been charged in her death.  There is no further information being given yet as to what happened or what the motive might have been.

Ribut, 35, was an Indonesian citizen who came to Canada in 2012 under the Temporary Foreign Worker program.  She had been working at a 7-Eleven in that capacity (presenting as male), but had also taken up working evenings as a female-presenting escort.

Canada’s Temporary Foreign Worker (TFW) program allows employers to bring in foreign workers and employ them for below minimum wage, with fewer regulations governing employer obligations to staff.  Temporary foreign workers are not eligible for public health care coverage or other social programs, and lose their residency if they quit their jobs, the net result of which is a more vulnerable and dependent workforce.  While there is no indication that the TFW program was used to bring her to Canada for sex work, a temporary worker employed at a 7-Eleven convenience store wouldn’t have had it very easy making ends meet on that income alone.

Ribut was from Indonesia, where “warias” (often characterized as males born with female souls — it’s not known if Ribut identified in this way) had once been traditionally respected.  However, trans people in Indonesia have been increasingly ostracized and have also faced challenges to their legal status over the years.  More recently, trans women have been targeted by vice raids that conflate trans people with sex workers, regardless of whether they are or not. In some parts of the country, the Muslim group Islam Defenders Front (FPI) have waged a cultural campaign against trans people, intimidating advocates and forcing the closure of trans and LGBT functions, while the National Police have been reluctant to intervene.

While it’s possible that Rosa Ribut was targeted for violence because of her gender, certainly the marginalization that sex workers experience made her vulnerable to the attack, and her escorting work is thought to be a contributing factor to the events of her murder.  December 17th is the International Day to End Violence Against Sex Workers, and the murder of Rosa Ribut is a tragic reminder of the brutality that sex workers sometimes face.  Trans people have a similar memorial in November of every year, but it should also be recognized how people of intersecting minority characteristics (trans status, sex work, race and / or the poverty-classed) can experience a disproportionately high amount of hatred, violence and risk.

Little about Rosa is known, other than details culled from her Facebook page (now offline).  According to the Edmonton Journal:

“His friends called him Rosa or Rose or Dido. For them, he posted pictures of himself enjoying the Edmonton winter — frolicking in the snow at the legislature grounds, shopping on trendy 104th Street. People tend to curate their Facebook pages to put the happiest gloss on our lives. But certainly, nothing in Ribut’s Facebook timeline suggests he was in Edmonton under duress. He joked online that he was a snow princess, who’d come here to find his snow prince…”

More details will likely follow in the coming months.

Janice Raymond, and Healing Old Wounds

This post is a personal reflection on Janice Raymond’s visit to Vancouver during a memorial for the victims of the massacre of women at L’École Polytechnique, which took place in Montreal 24 years ago.  For an overview of the controversy, why Janice Raymond’s presence (as well as some other aspects of that day’s program) drew anger from trans and sex work communities, and the different facets to that situation, please refer to my article at Rabble.  What follows is my personal reflection, recorded separately.

This blog post was originally going to be something very different, a personal recollection of how Janice Raymond’s writings had personally impacted me, how to heal from that, and the larger question of how to heal the old wounds that exist between trans and womens’ movements (a question that has been heavy on my mind over the past while).  After the publication of my article about her appearance at a memorial in Vancouver, the response to that article showed me that the former is something I don’t have the luxury of time to dwell on just yet, and the latter question is clearly more urgent.

A few of the responses accused me of having an agenda when I wrote the piece, Memorial draws controversy over invitation of speaker Janice Raymond, probably because I (as acknowledged in my bio at the end) have a trans history, myself.  In all honesty, my aim in writing it was to dig into a rather complex situation, be as objective as possible, and present several different points of view in a way that was true to the speakers and independent of myself.  Along the way, it meant examining a number of things, including the histories of Janice Raymond and the event sponsor that invited her, Vancouver Rape Relief (VRR); the use of the tragic memorial to promote a sex work abolition agenda that some felt was unrelated to the tragedy being commemorated; the trans and sex work communities’ response, and the complexities of responding while also not intruding on the larger context of a memorial.  If there was any take-away that I wanted readers to have, it would be to ask questions that might lead to the aforementioned healing.  A good journalist leaves the end response up to the reader, though, and the response I heard was unexpected.

What I didn’t expect was the visceral reaction that readers would have both to quotations of Raymond’s writing, and to the event sponsor’s policy on trans women.  To me, those things had been long-known issues.  Raymond’s book was first published in 1979, and the way it and her paper “Technology on the Social and Ethical Aspects of Transsexual Surgery“ were used to cut health care funding and close gender clinics are a matter of public record (although while looking for a link, I discovered that those events of the 1980s are better remembered by trans bloggers than by anyone else.  There are few, if any, people who are considered more controversial to the trans community than Janice Raymond.

Regarding the exemption of trans women from VRR’s primary services, I’d heard about this sporadically for years, and Vancouverites were still periodically tweeting upset about it before it was announced that VRR would be inviting Raymond to speak there.  So to me, this also seemed a long-known and ongoing concern: that while VRR will ensure that anyone facing an urgent emergency will be helped by referring them elsewhere, VRR will not provide the core of their services (shelter, counseling) to trans women. This exclusion can be traced all the way back to the 12-year Nixon v RR legal dispute, in which the Vancouver Rape Relief collective won the right to choose who could be a member and participant in the collective, even if that selection was made out of the belief that trans women aren’t women.

What I gleaned from interviewing VRR’s Hilla Kerner was the encouraging information that the views of the collective vary quite a bit on trans issues.  When I asked her about the exclusion, she sounded possibly regretful, perhaps uncomfortably embarrassed, and trying to rationalize the exclusion in a way that sounds reasonable if you don’t think about it too much:

“I’ll say it the other way.  There will not be a situation that someone is not safe in calling us, in which we would not help them to get safe.  It has nothing to do with who we are or what we do. It’s a basic human compassion.  To all people.  On the other hand, our core service is based on peer counseling and consciousness-raising and we’re only going to work with people, in this case, with women-born-women, who share the same experience.  And I think that transgender people who this model is appealing to them and want to have what we have, I think that the rationale from that will be that if you want to operate a consciousness raising / peer counseling -based service, probably a service that is designed by a transgender and operated by transgender and support and offer the peer counseling to other transgender who have a similar journey in life… because it’s a concept of consciousness-raising in a peer counseling context.”

But to Rabble readers, apparently, the exclusion of trans women from VRR services was a mostly new and shocking piece of information.

And that’s the first problem with wanting to heal a division of this sort, when that old division is still being allowed to persist in the form of policy.  Healing starts with talking about an issue, but if that issue is entrenched in current policy, doing so sometimes threatens to reopen old wounds.  Yet talk we must… and ask questions.

Part of what led me to believe that the exclusionary policy would not be shocking was that VRR’s website still documents some of its members’, supporters’ and like-minded activists’ past views toward trans people, such as Sheila Jeffreys’ assertions that “from a feminist perspective… transsexualism should be seen as a violation of human rights,” and compared the availability of genital reassignment surgery to lobotomy, which trans people should be saved from, for their own sake: “The mutilation of healthy bodies and the subjection of such bodies to dangerous and life-threatening continuing treatment violates such people’s rights to live with dignity in the body into which they were born.”  There is one essay on the website which talks about building bridges (while retaining the systemic exclusion, of course), but relies on one trans woman’s assertion that: “Well, let’s be clear on one thing from the start. As to M to F transsexuals, we can never be real women,” and “demanding equal treatment is not acceptable or productive…”

Most of those documents date from around 2000 to 2002, after the B.C. Supreme Court’s ruling in Nixon v. RR, but before the Supreme Court of Canada refused to hear the case (thus making the last ruling stand).  With websites, things often get posted and forgotten, only to need questioning years later.

Times have changed, and so has our collective understanding of trans people and trans issues.  It’s time to question these old attitudes, but that requires unearthing them again.  That’s not an easy thing to do, apparently, without having the reaction turn to anger, instead of resolution and healing… which take much more mutual effort.  But I believe that the focus needs to be kept on the latter as much as possible.

Perhaps before we can heal the rifts between collective movements, we need to try to heal the way we talk about them.  And each other.  As one interested party, I’m still trying to find what that way is.

The question comes at a time when something being called “trans-exclusionary radical feminism” (TERF), a fringe offshoot of feminism largely inspired by Janice Raymond and Sheila Jeffreys, is attempting to make a comeback.  While adherents have reopened some of those old wounds elsewhere, the philosophy doesn’t really resonate with mainstream feminism, which understands that division and demonization have rarely been good ways to build movements; that oppression has always been a poor way to fight oppression.

More important to remember, of course, is that there are many areas where the forms of oppression we face overlap.  Misogyny is a significant portion of what makes up transphobia, for example, because it is the perceptively non-masculine aspect of trans people that the cis (non-trans) public most reacts to in hatred.  Although much of the TERF critique of trans politics centers upon the possibility that trans people may reinforce an oppressive gender binary, the truth is that trans people are demonized in the rest of society exactly because they call that binary into question, are uncertainly in-or-out of that binary, blur its edges and raise challenging questions about sex, gender and human existence.  These kinds of overlap are completely missed when a policy of exclusion assumes that poverty, inequity, vulnerability and rape are somehow irrevocably different experiences simply because one had been born or socialized as male.

But we need to strive for that healing, especially if social movements want to transcend their own self-imposed boundaries and bring about true lasting change.  Healing and building critical mass go hand in hand.  As long as activism requires thinking in terms of colonies (even if umbrella-like), rather than in terms of alliances and intersections — ownership, rather than solidarity — it will be forever fractured and expending its valuable energy on policing its boundaries and propagating oppression — not on dismantling it.

And when I say all of this, I’ve not forgotten the other aspect of VRR’s controversy, surrounding sex work.  If anything, the discussion about feminism, transfeminism and the old wounds from that conflict serves as a cautionary tale, to question one’s activism, lest it do damage to sex workers, and this entire situation be revisited again in another form, in another ten years.

Healing should be preferable by far, over anger and exclusion.

For a case in point, this entire discussion began within the context of a memorial for the victims of the massacre at L’École Polytechnique in Montreal 24 years ago.  It has to be one of the most vivid examples of sheer hatred on historic record, and was undertaken by a man who does not deserve to be named, and who specifically targeted women, claiming he was fighting feminism.  That action is a deep scar in the psyche of Canadian women (and women worldwide).

The most disturbing thing that could come out of the controversy of the past weekend is if the tragedy of the École Polytechnique massacre becomes forgotten, turned into an opportunity for three communities that should be natural allies — the womens’ movement, the sex workers’ rights movement, and the trans rights movement — to instead do violence to each other.

(Crossposted to Rabble.ca)

Guest Post: El Feministo’s Open Letter re: Janice Raymond at Vancouver’s Ecole Polytechnique Massacre Memorial

On November 30th, a “Montreal Massacre Memorial 2013” event is being held in Vancouver to remember the victims of the massacre at l’Ecole Polytechnique, and to seek ways to end violence against women.  It’d be the kind of thing I’d be happy to promote, if it weren’t poisoned with this: sponsor Vancouver Rape Relief (VRR) has invited Janice Raymond to provide a lecture entitled “Prostitution: Not a Job, not a Choice” — hijacking the very real and urgent problem of violence against women, to try to win support for the abolition of sex work.  Raymond also has a long history of transphobia which is well-detailed below (along with VRR’s own transphobic history), and resulted in a long and bitter rift between trans and feminist movements. — M

El Feministo posted the following letter at Babble, the message board at Rabble.ca:

—————————————–

18 November 2013

To Vancouver Public Library management and board, Vancouver Rape Relief management, collective, and board, and to members, donors, and volunteers with both organizations:

I am writing regarding Vancouver Rape Relief’s (VRR’s) intent to host Janice Raymond at their “Montreal Massacre Memorial 2013” event hosted by Vancouver Public Library (VPL) on Nov. 30, 2013. Ms. Raymond is to deliver a talk titled “Prostitution: Not a Job, not a Choice”. Further to Raymond’s controversial stance on prostitution, you are likely aware of Raymond’s notorious stance toward transgendered people, too. I am requesting that space be made available to both transgender communities and sex work communities to respond to Ms. Raymond when she speaks at VPL.

Ms. Raymond is infamous for suggesting that “medicalized transsexualism represents only one more aspect of patriarchal hegemony” and arguing that transgendered people should be morally mandated “out of existence”. She also wrote Technology on the Social and Ethical Aspects of Transsexual Surgery, for the US Government, which led to the elimination of US federal and state aid for indigent and imprisoned transsexual persons – legislation which some speculate facilitated the deaths of already-marginalized trans persons. Raymond’s opinions on prostitution are similarly controversial, and widely criticized: her testimony in Bedford v. Canada was judged not to be credible. Her promotion of the belief that “legalization or decriminalization of prostitution … promotes trafficking” has been widely debunked and policies based on this mistaken assumption (like the USA’s PEPFAR legislation, until it was struck down by the US Supreme Courthave been shown to have harmful effects.

Meanwhile, VRR’s negativity toward transgender people is well-documented in coverage of VRR’s dispute with Kim Nixon in the 1990s. However, you may not know that VRR continues to perpetuate this conflict, with VRR insinuating “real woman” discourse into UBC’s recent Take Back the Night event. VRR collective member (and de facto leader) Lee Lakeman’s recent defamation of Ms. Nixon in the form of public accusation of felony theft continues VRR’s aggression toward transgender people – a politics of exclusion reified into a praxis of hate (to this day, VRR argues that transgender is not an identity, but rather, say VRR, “it is really an insidious form of paralyzing liberalism which translates into ultraconservatism in action”). Moreover, VRR’s ideological bond with Raymond’s politics is reflected in VRR’s role as the home of the Canadian Association of Sexual Assault Centres (CASAC)authors of a 2013 statement which prioritizes the elimination of sex work over all other women’s issues.

Whereas VPL intends to host an event sponsored by VRR, featuring Raymond, I refer you to VPL’s policy, which “is responsible for working with its communities to create services that diverse communities identify as respectful, inclusive, and accessible” with specific regard to “sexual orientation, gender identity,” etc. In light of this policy, I am asking both VPL and VRR to ensure that Janice Raymond’s presence at VPL includes the voices of the communities that she and VRR excludes. I am appealing to the Library’s Diversity and Inclusion Statement (referenced above) as well as to theLibrary’s meeting room policy, which in turn refers to the BC Human Rights Code. I believe the latter’s clause on “discriminatory publication” applies to any statements made during this event.

To be clear, this is not an attempt to censor or censure VRR or Raymond. To the contrary, I invite VRR to step inclusively into the realm of civil society rather than continuing to privilege the purity of your particular voice at the expense of the people you exclude. Inviting a dialogue between Raymond and the people she speaks against so stridently would be a step toward dissipating the pain and harm that Raymond’s views have caused to so many people.

Finally, I would like to emphasize that this request is motivated by values promoting civic discourse in a vibrant public sphere. I respect VRR’s right and privilege to mount this event, but showcasing a speaker who many people believe to be guilty of hate speech is inconsistent with these values, both generally and as reflected in VPL’s policies.

Respectfully,

El Feministo

Reblog: A Statement of Trans-Inclusive Feminism and Womanism

This is how you decolonize activism.

A wide swath of people have demonstrated how to decolonize activism: not with negativity, but with constructivity.  The following is being reblogged from Feminists Fighting Transphobia, and you will need to follow the link to see the ever-increasing number of signatories who have signed on.  I did not take part in authoring this, but gladly lend whatever support I can — M.

A Statement of Trans-Inclusive Feminism and Womanism

We are proud to present a collective statement that is, to our knowledge (and we would love to be wrong about this) the first of its kind.  In this post you’ll find a statement of feminist solidarity with trans* rights, signed by nearly 100  feminists/womanists from at least eleven different countries [it's now 383 individuals and 17 organizations -- exactly 400! -- from at least 15 countries] who wish to affirm that feminism/womanism can and should be a home for trans* people as well as cis.  It has been signed by activists, bloggers, academics, and artists.  What we all have in common is the conviction that feminism should welcome trans* people, and that trans* people are essential to feminism’s mission to advocate for women and other people oppressed, exploited, and otherwise marginalized by patriarchal and misogynistic systems and people.

If you are a blogger/writer/academic/educator/artist/activist/otherwise in a position to affect feminist or womanist discourse or action and you would like to sign on to this statement, let us know!  You can use the form on the contact page or you can email us at feministsfightingtransphobia1@gmail.com.  We’d love to hear from you. [NEW: You can also just sign right on in the comments, particularly if you're wanting to sign in a personal, rather than professional capacity--this will be much quicker and also easier on our moderators!]

Note: this blog in general and this post in particular are places where trans* people can come and find welcome and support from feminists.  For this reason, all comments are moderated for now, and hateful or abusive or bigoted discourse directed against marginalized groups or their members will not be approved.  It will either be deleted or it will be replaced with mockery of that discourse, depending on what the moderators feel like doing.  To be clear, transphobia, misgendering, racism, misogyny, slut-shaming, etc. are unwelcome.

We particularly welcome comments regarding ways in which feminists and womanists, both cis and trans*, can organize to demonstrate solidarity with and support and acceptance of trans people.  Reading the names of prominent feminists on statements of transphobia is heartbreaking to many of us, but as Joe Hill said, “Don’t mourn; organize!”

– Moderators

A Statement of Trans-Inclusive Feminism and Womanism

We, the undersigned trans* and cis scholars, writers, artists, and educators, want to publicly and openly affirm our commitment to a trans*-inclusive feminism and womanism.

There has been a noticeable increase in transphobic feminist activity this summer: the forthcoming book by Sheila Jeffreys from Routledge; the hostile and threatening anonymous letter sent to Dallas Denny after she and Dr. Jamison Green wrote to Routledge regarding their concerns about that book; and the recent widely circulated statement entitled “Forbidden Discourse: The Silencing of Feminist Critique of ‘Gender,’” signed by a number of prominent, and we regret to say, misguided, feminists have been particularly noticeable.  And all this is taking place in the climate of virulent mainstream transphobia that has emerged following the coverage of Chelsea Manning’s trial and subsequent statement regarding her gender identity, and the recent murders of young trans women of color, including Islan Nettles and Domonique Newburn, the latest targets in a long history of violence against trans women of color.  Given these events, it is important that we speak out in support of feminism and womanism that support trans* people.

We are committed to recognizing and respecting the complex construction of sexual/gender identity; to recognizing trans* women as women and including them in all women’s spaces; to recognizing trans* men as men and rejecting accounts of manhood that exclude them; to recognizing the existence of genderqueer, non-binary identifying people and accepting their humanity; to rigorous, thoughtful, nuanced research and analysis of gender, sex, and sexuality that accept trans* people as authorities on their own experiences and understands that the legitimacy of their lives is not up for debate; and to fighting the twin ideologies of transphobia and patriarchy in all their guises.

Transphobic feminism ignores the identification of many trans* and genderqueer people as feminists or womanists and many cis feminists/womanists with their trans* sisters, brothers, friends, and lovers; it is feminism that has too often rejected them, and not the reverse. It ignores the historical pressures placed by the medical profession on trans* people to conform to rigid gender stereotypes in order to be “gifted” the medical aid to which they as human beings are entitled.  By positing “woman” as a coherent, stable identity whose boundaries they are authorized to police, transphobic feminists reject the insights of intersectional analysis, subordinating all other identities to womanhood and all other oppressions to patriarchy.  They are refusing to acknowledge their own power and privilege.

We recognize that transphobic feminists have used violence and threats of violence against trans* people and their partners and we condemn such behavior.  We recognize that transphobic rhetoric has deeply harmful effects on trans* people’s real lives; witness CeCe MacDonald’s imprisonment in a facility for men.  We further recognize the particular harm transphobia causes to trans* people of color when it combines with racism, and the violence it encourages.

When feminists exclude trans* women from women’s shelters, trans* women are left vulnerable to the worst kinds of violent, abusive misogyny, whether in men’s shelters, on the streets, or in abusive homes.  When feminists demand that trans* women be excluded from women’s bathrooms and that genderqueer people choose a binary-marked bathroom, they make participation in the public sphere near-impossible, collaborate with a rigidity of gender identities that feminism has historically fought against, and erect yet another barrier to employment.  When feminists teach transphobia, they drive trans* students away from education and the opportunities it provides.

We also reject the notion that trans* activists’ critiques of transphobic bigotry “silence” anybody.  Criticism is not the same as silencing. We recognize that the recent emphasis on the so-called violent rhetoric and threats that transphobic feminists claim are coming from trans* women online ignores the 40+ – year history of violent and eliminationist rhetoric directed by prominent feminists against trans* women, trans* men, and genderqueer people.  It ignores the deliberate strategy of certain well-known anti-trans* feminists of engaging in gleeful and persistent harassment, baiting, and provocation of trans* people, particularly trans* women, in the hope of inciting angry responses, which are then utilized to paint a false portrayal of trans* women as oppressors and cis feminist women as victims. It ignores the public outing of trans* women that certain transphobic feminists have engaged in regardless of the damage it does to women’s lives and the danger in which it puts them.  And it relies upon the pernicious rhetoric of collective guilt, using any example of such violent rhetoric, no matter the source — and, just as much, the justified anger of any one trans* woman — to condemn all trans* women, and to justify their continued exclusion and the continued denial of their civil rights.

Whether we are cis, trans*, binary-identified, or genderqueer, we will not let feminist or womanist discourse regress or stagnate; we will push forward in our understandings of gender, sex, and sexuality across disciplines.  While we respect the great achievements and hard battles fought by activists in the 1960s and 1970s, we know that those activists are not infallible and that progress cannot stop with them if we hope to remain intellectually honest, moral, and politically effective.  Most importantly, we recognize that theories are not more important than real people’s real lives; we reject any theory of gender, sex, or sexuality that calls on us to sacrifice the needs of any subjugated or marginalized group.  People are more important than theory.

We are committed to making our classrooms, our writing, and our research inclusive of trans* people’s lives.

Signed by:

Individuals

Hailey K. Alves (blogger and transfeminist activist, Brazil)

Luma Andrade  (Federal University of Ceará, Brazil)

Leiliane Assunção (Federal University of the Rio Grande do Norte, Brazil)

Talia Bettcher (California State University, Los Angeles)

Lauren Beukes (novelist)

Lindsay Beyerstein (journalist)

Jamie “Skye” Bianco (New York University)

Hanne Blank (writer and historian)

Kate Bornstein (writer and activist)

danah boyd (Microsoft research and New York University)

Helen Boyd (author and activist)

Sarah Brown (LGBT+ Liberal Democrats)

Christine Burns (equalities consultant, blogger and campaigner)

Liliane Anderson Reis Caldeira (Federal University of Minas Gerais, Brazil)

Gloria Careaga (UNAM/National Autonomous University of Mexico)

Avedon Carol (activist and writer; Feminists Against Censorship)

Wendy Chapkis (University of Southern Maine) – “I don’t love the punch line ‘people are more important than theory.’  More to the point, it seems to me, is that feminist theories that fail to recognize the lived experiences and revolutionary potential of gender diversity are willfully inadequate.”

Jan Clausen (writer, MFAW faculty, Goddard College)

Darrah Cloud (playwright and screenwriter; Goddard College)

Alyson Cole (Queens College – CUNY)

Arrianna Marie Coleman (writer and activist)

Suzan Cooke (writer and photographer)

Sonia Onufer Correa  (feminist research associate at ABIA, co-chair of Sexuality Policy Watch)

Molly Crabapple (artist and writer)

Petra Davis (writer and activist)

Elizabeth Dearnley (University College London)

Jaqueline Gomes de Jesus (University of Brasilia, Brazil)

Sady Doyle (writer and blogger)

L. Timmel Duchamp (publisher, Aqueduct Press)

Flavia Dzodan (writer and media maker)

Reni Eddo-Lodge (writer and activist)

Finn Enke (University of Wisconsin, Madison)

Hugh English (Queens College – CUNY)

Jane Fae (writer and activist)

Roderick Ferguson (University of Minnesota)

Jill Filipovic (writer and blogger)

Rose Fox (editor and activist)

Jaclyn Friedman (author, activist, and executive director of Women, Action, & the Media)

Sasha Garwood (University College, London)

Jen Jack Gieseking (Bowdoin College)

Dominique Grisard (CUNY Graduate Center/Columbia University/University of Basel)

Deborah Gussman (Richard Stockton College of New Jersey)

Dr Sally Hines (University of Leeds)

Claire House (International Day Against Homophobia and Transphobia, Brazil)

Astrid Idlewild (editor, urban historian)

Sarah Hoem Iversen (Bergen University College, Norway)

Sarah Jaffe (columnist)

Roz Kaveney (author and critic)

Zahira Kelly (artist and writer)

Mikki Kendall (writer and occasional feminist)

Natacha Kennedy (Goldsmiths College, University of London)

Alison Kilkenny (journalist and activist)

Matthew Knip (Hunter College – CUNY)

Letícia Lanz (writer and psychoanalyst, Brazil)

April Lidinsky (Indiana University South Bend)

Erika Lin (George Mason University)

Marilee Lindemann (University of Maryland)

Heather Love (University of Pennsylvania)

Jessica W. Luther (writer and activist)

Jen Manion (Connecticut College)

Ruth McClelland-Nugent (Georgia Regents University Augusta)

Melissa McEwan (Editor-in-Chief, Shakesville)

Farah Mendlesohn (Anglia Ruskin University)

Mireille Miller-Young (University of California, Santa Barbara)

Lyndsey Moon (University of Roehampton and University of Warwick)

Surya Monro (University of Huddersfield)

Cheryl Morgan (publisher and blogger)

Kenne Mwikya (writer and activist, Nairobi)

Zenita Nicholson (Secretary on the Board of Trustees, Society Against Sexual Orientation Discrimination, Guyana)

Anne Ogborn (frightening sex change)

Sally Outen (performer and activist)

Ruth Pearce (University of Warwick)

Laurie Penny (journalist and activist)

Rosalind Petchesky (Hunter College and the Graduate Center, CUNY, and Sexuality Policy Watch)

Rachel Pollack (writer, Goddard College)

Claire Bond Potter (The New School for Public Engagement)

Nina Power (University of Roehampton)

Marina Riedel (Federal University of Rio Grande do Sul, Brazil)

Mark Rifkin (University of North Carolina – Greensboro)

Monica Roberts (Transgriot)

Dr. Judy Rohrer (Western Kentucky University)

Diana Salles (independent scholar)

Veronica Schanoes (Queens College – CUNY)

Sarah Schulman, in principle (College of Staten Island – CUNY)

Donald M. Scott (Queens College – CUNY)

Lynne Segal (Birkbeck, University of London)

Julia Serano (author and activist)

Carrie D. Shanafelt (Grinnell College)

Rebekah Sheldon (Indiana University-Purdue University-Indianapolis)

Barbara Simerka (Queens College – CUNY)

Gwendolyn Ann Smith (columnist and Transgender Day of Remembrance founder)

Kari Sperring (K L Maund) (writer and historian)

Zoe Stavri (writer and activist)

Tristan Taormino (Sex Out Loud Radio, New York, NY)

Jemma Tosh (University of Chester)

Viviane V. (Federal University of Bahia, Brazil)

Catherynne M. Valente (author)

Jessica Valenti (author and columnist)

Genevieve Valentine (writer)

Barbra Wangare (S.H.E and Transitioning Africa, Kenya)

Thijs Witty (University of Amsterdam, Netherlands)

Groups:

Bishkek Feminist Collective SQ (Kyrgyzstan, Central Asia)

House of Najafgarh (Najafgarh, India)

House of Kola Bhagan (Kolkatta, India)

Transgender Nation San Francisco

[See http://feministsfightingtransphobia.wordpress.com/2013/09/17/welcome-to-our-most-recent-signatories/ for our newest signatories, as of the end of the day on September 16, 2013]

[See http://feministsfightingtransphobia.wordpress.com/2013/09/18/six-hours-later-we-have-a-new-signatory-list/ for our newest signatories, as of the end of the day on September 17, 2013]

What LifeSiteNews’ attack on Pat Robertson says about religious freedom.

Last week, there was some curious notice given to American televangelist Pat Robertson, after he expressed support for transitioning trans people, and their access to sex reassignment surgery.  Less noticed was the backlash from other far-right groups over the same comments.  But it’s worth revisiting, because of what that backlash says about the far right’s battle cry over religious freedom.

It’s very common for far-right ideologues (who I try to distinguish from “Christians,” because they don’t speak for all Christians) to hide behind religious freedom, and cry censorship when they are called out for transphobic and homophobic comments.  It has created a public perception of there being a false dichotomy between LGBT human rights and religious belief / practice.  It also creates a weird conflation between holding people accountable, and “persecution.”

Personally, I’d rather that folks speak freely.  It’s much easier to challenge the content of what is being said, and demonstrate the authentically bigoted attitudes underlying far-right agendas.  We’ll probably never change the minds of the Fred Phelpses of the world, but their words and actions say a lot to society at large.

That’s probably why I keep coming back to LifeSiteNews.

LSN is a Canadian faux-news website under the aegis of Campaign Life Coalition (CLC), which is pretty unabashed about wanting to end or restrict abortion (with no exceptions), contraception, hormone therapy, in-vitro fertilization (IVF), feminism, organ donation, euthanasia, same-sex marriage, LGBT relationships of any type, LGBT parenting, cohabitation and divorce, and far more.  LSN has cheered on Russia’s highly punitive and violent legislation against LGBT people (Russian President Vladimir Putin appears to be a champion of religious freedom to LSN, of late), and continues to support organizations that foment anti-gay hatred in Africa, despite having been called out for doing so.  LSN has been known to deliberately omit important information, like when the website cheered on new anti-gay legislative proposals in Nigeria, while “forgetting” (despite reminders) that 14 Nigerian states already have the death penalty for LGBT people.  Other coverage will sometimes conflate homosexuality and pedophilia, or make a total ban on LGBT expression and advocacy sound like it’s protecting children from pornography.  But overall, LSN’s agendas are usually fairly nakedly obvious with just a little bit of examination.  So it often provides vivid examples to clearly demonstrate what the ideological far right wants to do.

CLC has also regularly used the LSN blog to attack Catholic organizations that don’t follow exactly the kind of path that CLC believes is proper and Catholic.  LSN has attempted to punitively police the Canadian Catholic Organization for Development and Peace, and was sued when they went after a Quebec priest who LSN portrayed as a “former homosexual prostitute” and a “so-called priest who supports abortion.” Recently, American and international Catholic hospitals, agencies and charities who provide (or support organizations that provide) access to birth control have come under fire.

LSN has even “clarified” the new Pope.  (But to be fair, LSN was not the only ideologue to do so).

Now, LSN is encouraging readers to swamp the Christian Broadcasting Network main switchboard with complaints about Pat Robertson, partly for saying that contraception is an acceptable way to provide assistance to impoverished people in Third World nations (specifically, Robertson showed some racism by referring to “Appalachian ragamuffins”), and partly for expressing support (for at least the third time) for sex reassignment surgery and the trans people who seek it.

LSN’s attempt to police Pat Robertson and American Evangelicals on these issues puts the lie to cries of religious persecution, censorship and infringement on religious freedom.  As the website and its contributing allies continue to play banhammer on Catholics For Choice, the National Catholic ReporterCatholic Relief Services, affirming churches, priests and congregations, and more, it shows no qualms about attempting to censure or silence the religious freedoms of other Catholics and of Protestants as well:

In addition to complaining that CRS was involved in distributing abortifacients and contraceptives, the clergy expressed dismay that the majority of CRS’ employees in the country are not Catholic and that it does its work apart from the local church.

“Maybe CRS’s participation in artificial-contraception-promotion programs is the reason that CRS mainly hires Protestants, who have no objection to family planning,” suggested Fr. Liva, SMM, Pastor at St. Thérèse Parish in Tamatave. “If CRS hired Catholics, some of those Catholics might object more strongly to CRS’s participation in that kind of thing.”

Back in January, LSN’s Managing Director Steve Jalsevac declared that affirmation of LGBT people in Catholic congregations, teachers’ unions, hospitals, universities and schools was something that needed to be dealt with “urgently and forcefully:

When the various Christian churches, not just the Catholics, are largely cleansed of this rejection of authentic Christian morality, then a power of faith will be unleashed that nothing can stop.

In fact, with this attack on Robertson and other insinuations about Evangelicals, LSN now appears to be trying to police who can and can’t be considered Christian.  This is also apparent in the website’s latest posturing over poll results which show that a majority of Catholics and a significant number of born-again Evangelicals still support the availability of abortion in at least some cases (let alone contraception), as well as calls to excommunicate legislators who support abortion access and LGBT human & marriage rights.

Granted, there has long been a hypocrisy in the religious freedom argument, with Evangelicals like Bryan Fischer and Pat Buchanan arguing against allowing religious observances of people of other faiths, like Muslims. But at this point, it should be obvious to all that for the people now attempting to define and drive what qualifies as “Christian,” the only religious freedom that matters is their own.

(Crossposted to The Bilerico Project)

“Sex by deception” and the shades of yes

A series of recent rulings (and the media circuses that have accompanied them) in the UK has raised questions about what is being termed “sex by deception” — that is, instances where people who are possibly trans are said to lie about their gender, in order to seduce another person.  In these cases, it’s often unclear whether the person in question is trans or if the gender representation is for other reasons, due to media ignoring questions of self-identification, using mixed pronouns and sensationally portraying people with phrases like “sex fraud woman who posed as a boy to seduce a girl.”  Even after a legal ruling is given, it’s still unclear in many of these instances who the defendant is, and how they identify — which at post-trial stage is an indictment of both media reporting and judicial clarity.

There have already been some previous thoughts expressed on the most recent ruling by Zoe O’Connell (who sifted through the legal text), Jane Fae, and others, and because of the near impossibility to determine what actually happened from a distance, I won’t even try to touch on any of the specifics of any of the specific cases.  I’ll be sticking to generalities only.

There are two key questions at the heart of the discussion.  The first is whether or not one’s gender identity is deception.  Obviously, I don’t believe that’s the case, and at this point in time, most people who have investigated trans phenomena have come to realize that it is deep and integral in at least some way, and far more substantive than what was previously commonly believed by the public at large.  And because this discussion has a question of validation at its root, it can be a very hot-button issue for trans people.

Gender vs. Sex

However, there is also a difference between one’s gender, which is an outward expression and socially constructed to a significant degree, and one’s physical sex.  In illustration, transsexed people typically transition between sexes to be true to themselves, while various other and often overlapping trans people live between genders or defy them in some way (that is to say, there are a couple sometimes differing but not mutually exclusive narratives that make up “trans*”).

When discussing whether deception takes place, there is sometimes a language breakdown that happens because one person is thinking about what a person’s gender identity is, while another is thinking about their genitalia.  For example, as someone who transitioned, I view the years before transition, when I was trying to pass as a man to meet others’ expectations, and trying to conform to my pre-transition body as the period of my life closest to being a “deception,” given that I had been consciously been putting on an act (24/7) during that period of my life.

But the other key question at the heart of things is the nature of consent.  And that is why my own thoughts on this are a bit more complex and nuanced.

Consent

Before I came out and started transition, there were very few safe spaces for trans people, where I could interact with people without fear and hiding.  One was the BDSM community, which has a strict and very discerning stance on what constitutes consent.

Note: it’s always nebulous to call something “the _____ perspective,” and individual opinions and nuances may vary, but this is a general consensus as I learned it: consent by kink standards should come from people who are of the age of majority (legal reasons), without coercion, influence, imbalance or obligation (mixed legal and ethical reasons), and with clear prior communication by both parties about what is being consented to (ethical reasons).  [It may seem odd to some readers, but it actually is possible to resolve social justice perspectives with the power exchange that happens in BDSM -- it is a major detour from this subject, however, so I'll simply be focusing on consent here, and hope that this discussion simply helps to illustrate this point]

It’s a level of consent that many heteronormative couples don’t strive for or even think about. That standard can call into question consent that is given because one feels that it’s their marital duty. It certainly calls into question sex while intoxicated, or where there is an obviously disparate question of power / authority to manipulate, or many other situations in which someone makes an exception to engage in a sex act that they otherwise wouldn’t normally consent to.  The starstruck “he’s not my type, but oh gosh, he’s the President” rationale could raise questions about ethical consent, in some kink circles.

So having sex and failing to disclose one’s sex certainly enters a grey area when this standard of consent is applied. Note that I didn’t say that consent is automatically invalidated.

Legal vs. Ethical

When I started talking about kink perspectives on consent, I brought up a blend of legal and ethical considerations.  It’s important to recognize that whether something is ethical can be an entirely different question from whether it is legal.

It is usually legal, for example, to deceive a partner about one’s marital status, age, past history (including legal convictions), sexual orientation, medical and mental health (including lying about having had a vasectomy, a deception that can result in pregnancy), religious affiliation, wealth / connections, and – heh – prowess.  Some of them are much more serious than others.  Many of them are not typically interpreted in general society to automatically invalidate consent on a legal level, although there may be contexts where legalities are questionable.  And although some cause harm, privacy is often seen as more important in a legal context, depending on how much harm is involved. None of those are very ethical on the surface, but they rarely become legal questions, unless there are extenuating circumstances — such as if the person consenting is under the age of majority, if the person becomes pregnant, and / or if the person initiates lies about being in their peer group.  That’s because law prefers to deal with absolutes, and many of these questions are context-dependent.

Failure to disclose HIV status is a bit more difficult, although it is still not an apt comparison to non-disclosure of trans status: there is no possibility of developing lifelong consequences just because a partner is trans. Either way, people with HIV can be (and most often are) responsible, and take ethical steps to avoid passing the virus on.  The U.K. — where the specific legal cases that started this debate have taken place — recognizes this in law, and doesn’t automatically determine HIV status to invalidate consent.

Gender panic, on the other hand, is seen as the sole exception.

[Edit: okay, possibly next-to-sole exception.  I nearly forgot that Britain has another unusual precedent in R. v Brown, in which the House of Lords ruled that people cannot legally consent to violence, except through legal activities (i.e. surgery).  There have since been rulings that lesser forms of pain -- such as branding -- can be consented to, but it's unclear if these rulings overturn R. v Brown.  Either way, the possible existence of a second exception where consent is automatically invalidated changes this context only slightly.]

Shades of Yes

In issues of both legal and ethical consent, there are varying degrees that have to be recognized.  Legal discussions most often parse consent by verbalization:

  • express,
  • deemed, or
  • implied consent.

And if one of those are met, then the question becomes whether that consent was revoked, or if there was a context-sensitive circumstance which would reasonably invalidate that consent.

Ethical discussions parse consent by the motivation of the person who consents:

  1. fully mutual (where both partners are fully empowered and participating for mutual pleasure – the obvious ideal),
  2. generous (in which one sees neither pleasure nor betterment in the experience, but is not in a position of disempowerment, and participates solely out of a desire to fulfill another),
  3. transactive (a situation in which someone might consent to sex in order to advance their finances or position, but is not significantly from a perspective of disempowerment — can include some sex work, depending if it’s engaged in more from a perspective of opportunity than of necessity),
  4. survival-motivated (a situation that is transactive, but comes from deeper marginalization, and will likely only maintain that disempowered status quo – sex work can also be included here, such as the most commonly thought-of survival sex work),
  5. impaired (drugs, alcohol, and it’s also arguably possible to include things like crappy self-image, when it’s inferred by the consenter rather than exploited by their partner),
  6. inadequately communicated (as in deception by omission or unintended deception),
  7. obligated (a person is a bit more under another’s power; fulfilling one’s “wifely duty” might fall in this category if there are profound negative elements being endured in the process),
  8. coerced / by willful deception, or
  9. forced.

Each of us will draw the dividing line between ethical and unethical consent differently, and sometimes with weird jumps (i.e. heteronormative couples might see obligation as a perfectly fine motivation, but transactive sex not).  I’ve ranked them based on how much autonomy the person consenting retains, and the degree of equal power between partners during the negotiation (which can be different from the power exchange afterward — this is drawing from the BDSM principle, after all).

As much as consent can be divided up and rated, of course, “no” is still “no.”  What this is designed to do is give some clearer ideas about when “yes” actually should be considered “no,” or at least be reassessed.

Legal Exceptionalism

Legally speaking, there is an instance in which I could see consent being legally invalidated, or at least where the question would become very murky: if the trans individual bared their genitals and expected their partner to interact with them, without it having been previously discussed.  In the incidents in the U.K. that sparked this discussion — including the most recent precedent-setting one — that did not happen.  The discovery of the person’s trans status did not happen until some time after the sex.

Given this, we’re allowed to be all over the map on where we think this question falls ethically, but we have to recognize that on a legal level, this is pure trans exceptionalism.  With the number of things that aren’t automatically considered deception and don’t instantly invalidate consent, it is pure gender exceptionalism — fuelled by a combination of homophobia, transphobia and possibly also misogyny — behind the decisions to convict.  British courts have been setting precedents that are very different than the conclusions I’d come to, certainly.

The U.K. precedent also sets up a legal question as to whether a trans person is always automatically defined by their genitalia (or even by their genital history), rather than their gender identity.  In a way, the precedent implies that in the eyes of the court, trans people are committing fraud, just by existing.

There’s also a greater concern.  There has often been an apparent vindictiveness evident in the media coverage surrounding some of the “sex by deception” cases — often driven by family members, but also incentivized by the profitability of sensationalism.  Given that transphobic animus can often stop at nothing (including lying) to hurt and demonize, does this precedent then put the burden of proof on the trans person to demonstrate that they had disclosed their trans status?  And if so, does this create an opportunity for transphobes to exploit the criminal justice system to punish people they find morally objectionable?

How does one prove that they disclosed to a partner that they’re trans, in a one-said / other-said scenario? Given that judgments in these cases often go to whoever is deemed more believable and about whom fewer aspersions have been cast, this opens up a whole lot of legal vulnerability.

At this point, it’s worth saying something about post-act regret.  The trans panic defense and the deception claim may even be related at times, and parcel to something I have seen happen: the after-the-fact change of mind, regret, guilt and homophobia that can set in after a consensual sexual encounter, which sometimes then get turned against their playmate in the form of violence and retribution.  The person suddenly blames a trans individual for “trying to make them gay,” and is overwhelmed with guilt for having enjoyed a sexual encounter.  I’ve experienced being on the receiving side of that, though luckily not as seriously as others have.  If the legal system provides a new form of retribution for post-act regret, then trans people have become subject to a new kind of violence.

In any case, the legal question has become seriously complicated in the U.K.

Ethical Questions

Regarding whether there is an ethical imperative to disclose, with the distinctions above to ground us, we have to ask a few questions.

What are the hardships of disclosure?  At what moment is a trans person supposed to disclose?

The reality is that disclosure is often far more negatively consequential to a trans person than a cis partner: trans people are often subject to hate and even brutality for being open about being trans or having a trans history.  There is never a good moment to disclose.  There may not even be a consistently ideal time to, since context changes everything.  Individual value judgments also factor into the question.

What if it is the cis person who initiates discussion, with hopes of leading toward sex? What if the discussion happens in a public area, with a reasonable expectation of harm if one discloses? What if the cis person is pushy or even coercive?

How much right to privacy should one have from an intimate partner, and are there circumstances when privacy might take precedence?

Who has to disclose?  If the sexually-active person in question is post-operative, is there still an obligation to disclose a trans history?

What if the person is pre-transition and they’re still struggling with it and in self-denial?  (One of the jarring questions couples face when one partner comes out as trans is why it wasn’t disclosed sooner:  often, this dredges up an extended timeline of when the person knew they were different, when they decided to try to live according to the dictates of their body and birth assignment, when they came to self-acceptance, when they realized they would someday need to transition, and when they finally came out.)

What if the sex in question doesn’t involve a partner’s penis or vagina? If the person in question is providing oral sex and their pants stay on, does it really matter what’s in their trousers?  Is there a value judgment to be made between a one-night stand and a reasonable expectation of a longer-term sexual relationship?

Does having genitalia contrary to what is believed (or assumed) substantively change the act of sex? Does it necessarily change a person’s sexual orientation? How does one define or quantify the harm?

Open-Ended As It Should Be?

There are dozens of questions that affect the question of ethical consent.  I’m not going to have any one single answer for that would apply in absolutely every situation… nor do I think that it’s possible to have any absolute one-size-fits-all rule.

But I do want people to understand the complexities, and how that question differs from the one of legal consent.

Intersex Conditions within the Transsexual Brain / Why “Born This Way” Is Not the Point

A bit of point and counterpoint here, to provoke some thought.

I thought this portion of a lecture given by Robert Sapolsky at Stanford University, given in 2010, would be worth posting for folks who found this blog recently, and/or aren’t familiar with some of the medical discoveriess since the late 1990s.  It gives a very quick overview of some of the developments that have been happening in studying transsexualism.

This comes via Transadvocate, and h/t Zoe Brain.

As a counterpoint, I was going to link to an article I wrote called Why “Born This Way” Is Not the Point, only to discover I’ve apparently never archived it on this blog (either that, or I’ve written so much that I’ve lost the ability to keep track of it all).  So here it is.

Why “Born This Way” Is Not the Point

In her anthem coming soon to an ear near you, Lady Gaga asserts that whether “black, white, beige, chola descent” or “gay, straight or bi / lesbian, transgendered life,” we should all be proud, because we’re just “Born This Way.”  The song was unquestionably well-intended, but there is a danger in basing the acceptance and validity on whether or not characteristics can be attributed to an inborn trait.

“Born This Way” is the inevitable product of an ongoing debate where legitimacy hinges on whether or not something is biological and intrinsic, or perceived to be a life choice.  For those of us who are trans or queer, the far right version of the birth versus choice narrative claims that we are trans, lesbian or gay purely by choice. Underscoring this is the implication that if something is based on choice, then it is not something the right needs to accept or respect.  From the perspective of someone who is part of both the trans and larger lesbian / gay / bisexual / trans (LGBT) community, I understand when we react to this debate to point out that we never chose to be as we are, and that it’s not something we can switch on or off like a light.  But doing so misses the point entirely.

There is certainly reasonable precedent to believe that biology is a factor in shaping LGBT people.  In the case of transsexuals, a growing volume of science since the mid 1990s has demonstrated frequent and repeatable higher-than-typical occurrences between some genetic characteristics and transsexuality.  Brain structure studies have yielded results in which transsexuals’ brains far more often resembled those of their identified gender than their birth sex, even though there is still wide-ranging debate on how much difference that really causes between men and women.  And research into phenomena like phantom limb syndrome has uncovered the likelihood of the brain having a “body map,” which has been proposed as an explanation as to why transsexuals strongly believe that their birthed sexual characteristics aren’t what they’re supposed to be.

Yet something that bothers me (and isn’t mentioned much in the quest for biological legitimacy) is that clear proof of a biological origin would not only fail to convince those who hate LGBT people, it is also not the holy grail it’s made out to be.

There is ongoing debate about how much of human behaviour stems from biology, how much from conditioning and socialized expectations, and how much from choice.  It’s probably not a good idea to dismiss any of the three.  Although they are vastly different from being LGBT, Bipolar disorder and some forms of autism have been demonstrated to have some form of biological causation or linkage, so there are certainly precedents.  So we play the opposite response: “it’s genetic.”  Well, maybe it is, at least in part, but neither chosen lifestyles nor biologically-driven identities of themselves validate or disqualify value in a human being.  In the long run, we might not exactly be comfortable with the implication of imparting all things biologically-connected with legitimacy.  Imagine a finding in which pedophilia is shown have some genetic trigger.  Certainly, many predators describe a compulsion they feel is intrinsic and beyond their control, so it’s not unthinkable that there could be a biological component.  But it would be repulsive to excuse the molestation of children for this sort of reason.  And at that point, consistency fails.

So biological causation only proves that we exist.  We cannot depend on it for rights or to change hearts and minds.  We cannot rely on it to find pride in our lives.  It’s fascinating, marginally validating, but it does not provide the standard against which we measure ourselves as humans.  Biological predestination is a poor measure of who is entitled to human rights or whether or not someone has a legitimate right to be.  We recognize that people deserve respect, freedom, access to employment and services, and to be treated as equals regardless of any disability, poverty, class, body image, level of education, faith and several other factors that are not inherently predetermined.  The “choice invalidation” argument seeks to undermine far more than the acceptance of LGBT people.  Discrimination does not occur purely because of the colour of someone’s skin — rather, colour is one of many indicators that are used to trigger presumptions about an individual’s culture, lifestyle, behaviours and tendencies.  You hear this excuse all the time: “I have nothing against them, but you know what they’re like….”  Prejudiced people are blind to their prejudice because they’ve seduced themselves into believing that what they’re reacting to are associated choices and not really the trait itself, when they’re acting on the unspoken and often inaccurate smorgasbord of inventions that go with it.  When we insist on biological validation, we are playing along with an ideology that makes soft excuses for bigotry, rather than confronting the impulse to discriminate.

And for that matter, how much of the “born this way” argument boils down to people feeling like they have to make excuses and seek societal forgiveness for existing, rather than pointing the finger back at bigotry?

The concept of human rights, of course, was supposed to address the extent to which hatred between diverse human communities manifested.  Human rights legislation was a response to the dramatic and horrific manifestation of hatred during the mass genocide that occurred in Nazi Germany — but it also recognized that mass extermination is not a new phenomenon, and that modern society cannot be fooled into believing that it would never occur again.  The principle is that all people should be treated as equals, but we know from experience that if we leave it up to everyone’s discretion, enormous imbalances happen.  Even with human rights legislation, there are glaringly different ways that privileged and non-privileged classes are treated.  So human rights legislation is structured in a way that identifies various classes that should not be used as bases to include or exclude — to accept or to hate — people.  The classes are, of themselves, neutral (for example, “race” covers white people as much as anyone else), so contrary to another modern myth, there are no “special rights.”  It becomes the role of the judiciary to balance the rights of the minority with the rights of the majority.  In an ideal world, of course, we would all realize that all are created equal, but in practical reality, 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.  At the furthest extreme, without rights legislation requiring the legal system to take occurrences seriously, it becomes common for people to excuse violence or murder of minorities as being somehow justified or inconsequential, thereby devaluing the lives of the victims.

At some point, we need to realize that risk-conscious, responsible, respectful and genuinely consensual behaviour need to be the standards by which we measure people — by their actions, rather than any assumptions associated with any traits… even those that are not necessarily intrinsic, genetically-determined ones.

C-279: To amend or not to amend?

… aaaaaaaaaaaaaaaaaaaaaaaaaaand we still don’t know what Bill C-279 is going to be when it’s voted on at Third Reading.

The bill, which proposes to add trans people to human rights legislation, had an hour of debate at report stage.  Randall Garrison requested that amendments be added to the bill, and the Speaker decided that they should be debated and voted on by the House, prior to Third Reading.  This was the first hour of that, with a second to follow.  Consequently, we still didn’t get any yes / no answer on whether those changes would be made.  Garrison anticipates that the changes are needed in order to have enough multi-party support to pass the bill.

For folks confused by mention that there are nine amendments, that means that the text of the bill is amended in nine places.  What it accomplishes is to drop “gender expression,” to define “gender identity” (details and my take on those changes here), and to correct it by adding some classes that have already been added to existing legislation since Bill Siksay first composed the text of this bill (“marital status, family status, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered”).

Interestingly, the Parliamentary Secretary to the Minister of Justice (Robert Goguen) and two other Conservative MPs (Dan Albas and David Anderson) cite four examples to claim that inclusion is not necessary.  They all avoided talking about outcomes, by using phrasing like “the court dealt with the complaint[s] using the ground of sex.”  There is a reason for this, because one was ultimately decided against a trans woman in the B.C. Court of Appeal (Nixon v. RR), and another may have been arbitrarily ignored by a direct order from the Harper Government (Kavanagh v. Correctional Services of Canada)… although there’s some uncertainty about what policy is actually being practiced in the correctional system, right now.  Ironically, half of the Conservatives’ own examples actually demonstrate why clarity is needed.

Several commentators referred to the testimony of representatives of the Canadian Human Rights Commission and the Canadian Human Rights Tribunal, acknowledging that technically, transsexuals were already read into existing legislation.  Randall Garrison correctly notes that they (particularly Ian Fine) did so reluctantly, while also stating that clarification would be helpful.

MP Anderson kept falsely characterizing the bill as “expanding the definition of sexual orientation to gender expression and to gender identity.”  Anderson (who showed up to be part part of the attempt to filibuster the committee proceedings, despite the fact that he was not a voting member of the committee) had his speech cut short by the end of session, and he will be continuing when debate resumes.

Highlights and lowlights of the debate can be found in the Hansard (audio, starting after 4:30), but here are some excerpts:

Randall Garrison:

… As we have just heard, the package of amendments is quite complex, but it really only does two things. Nine amendments are required because of the complexity of legal drafting, but again, only two things are happening here.

The first is that the bill adds the definition of “gender identity”, which we just heard the Speaker read out in the House. The second is that the term “gender expression” is removed from the bill.

I hope this reassures those members who wanted a somewhat narrower bill, a bill that was somewhat easier to explain in public, and a bill that might rule out some of the more extreme concerns or fears that some people had. I believe that if we approve these amendments, we will have that bill in front of us.

There were some concerns about “gender expression” being less well defined in law and that this would somehow open the gates to abusive practices on the basis of the gender identity bill. I will be very frank and talk about the main one of those, which was the concern that somehow people could use this bill to gain illegitimate access to public bathrooms and change rooms in order to commit what would always be criminal acts of assault.

I contacted the jurisdictions in the United States that have had these provisions in place for a very long time. Four of those did reply, those being California, Iowa, Colorado and the state of Washington. All of them reported the same thing: there have been no instances in any of those states of attempts to use the protections for transgendered people for illegal or illegitimate purposes—no incidents, zero, none.

There have been concerns on the other side from members of the transgendered community or those who have gender variant expressions that they wish to carry out. To them I would say that this is a somewhat narrower bill, but we believe that it preserves the essence of the protections we are seeking here, which is that transgendered and gender variant persons should have the same rights as all other Canadians.

If these amendments are adopted, it would be a somewhat narrower bill than that passed by the previous Parliament.

I have to take a moment to pay tribute to former MP Bill Siksay, who brought that bill forward through the minority Parliament. However, the bill died on the order paper of the Senate as a result of an election call.

If we approve these amendments and we go on to adopt this bill, what is it that we would actually be doing here? I am arguing that we are simply completing the Canadian human rights agenda. This bill would create no special rights, no additional rights and no unusual rights, but would simply provide the same rights, no more and no less, to transgendered and gender variant Canadians.

Another argument against the bill has been that it is not necessary to have it, that somehow people are already protected in Canada. I have a legal answer to that, and then I have a practical answer to it.

The legal answer is that we heard from the Canadian Human Rights Commission in committee that it would be very useful to clarify the law by having this explicit mention of transgendered rights in the Canadian Human Rights Act and in the hate crime section of the Criminal Code. It is true that in the past the Human Rights Commission and the tribunal have decided cases involving transgendered Canadians on the basis of sex discrimination; however, as they have pointed out, that is no guarantee that all future cases would meet the test of sex discrimination. Therefore, in order to make sure that all the possible issues that might arise are covered, it would be better to have an explicit statement in both the Canadian Human Rights Act and in the hate crime section of the Criminal Code….

Robert Goguen (Parliamentary Secretary to the Minister of Justice):

… As I have said, the ground of sex is already in the act and has been used to address instances of discrimination against this group. The addition of gender identity is therefore unnecessary.

However, if its addition is not purely symbolic, as the sponsor tells us it is not, then we would ask ourselves this. If this ground were to be added to the Canadian Human Rights Act, what sorts of new complaints of discrimination will be brought before the Canadian Human Rights Commission and Tribunal? How will employers know what kinds of workplace behaviour and expression would be prohibited? The answers to these questions are not clear to me and they are questions that we should carefully consider…

Irwin Cotler:

… As I mentioned with respect to the exclusion of “gender expression”, it was initially my preference that both terms remain in the bill. Again, I am cognizant of the possibility that even in the absence of “gender expression”, the term “gender identity” might, through case law and through an appreciation of travaux préparatoires, eventually come to encompass part or all that would have been protected by the former.

… To start, they [opposing Conservatives] came with their own amendments, including a handful that only reinforced the status quo formula of “sex” and “disability”. Then there was a frivolous amendment exempting official Canadian sports authorities from the provisions of the bill, as if to contain some fictional mass of men trying to compete in women’s sports, and vice versa. Finally, there was an out-of-context amendment that sought to ensure that no part of the Canadian Human Rights Act could infringe upon the rights of aboriginal peoples. While I firmly believe that we should only enact legislation that is mindful of the rights of Canada’s aboriginal peoples, I found there was no reason to codify this specific protection into the act, as the charter supersedes any statutory act, which is clearly set forth in section 52 of the Constitution Act. It appeared that this, too, was a diversionary item…

Kennedy Stewart:

… Passing the bill into law would be an important step forward for Canadians expressing themselves as transgendered. Trans people have regularly been shown that they are denied things that we all take for granted, such as adequate access to health care and housing, the ability to obtain or change identification documents, access to washrooms and other gender stations, as well as very fundamental rights such as the ability to exercise the right to vote and to acquire and maintain meaningful employment…

… We need to do this in the spirit of the anti-bullying pink shirt day that we are seeing here in Canada. Wearing a pink shirt is a good thing. It shows that Canadians care. However, this is an opportunity to actually do something concrete, to change the laws of our country to make sure that people who are facing discrimination are no longer discriminated against, or if they are, that they have remedy within our legal system, whether it is the Canadian Human Rights Act or the Criminal Code, in order to make sure that they obtain justice and are able to pursue their lives as they see fit.

What we need to take into account also is how the trans community is suffering under the current circumstances. Worldwide since 1970, 717 trans people have been reported as murdered. However, this of course is a severe undercount, because many countries do not collect adequate statistics in this area, nor do they correctly record violence against the trans community….

Dan Albas:

… By adding the proposed definition for the term “gender identity” in Bill C-279′s preamble, it remains unclear what situations it would cover and how the Canadian Human Rights Tribunal, or the criminal courts and the sentencing judges, would interpret these terms. This gives rise to the potential for subjective interpretations. These interpretations do not provide clarity nor certainty. In the absence of having greater certainty and a clear definition, it is important to recognize that existing laws already do apply to discrimination against transsexuals…

Mylène Freeman:

… Dr. Shuvo Ghosh, who is a trailblazer in this field is a pediatrician, a developmental-behavioural pediatrician to be specific, and an assistant professor at McGill University and at the Montreal Children’s Hospital, noticed that he was seeing more and more transgendered children and decided that he would open a clinic to specifically support their needs. It is the first one of its kind, in fact. I am very happy and proud that it is in my province of Quebec and so close to my home in Montreal.

Dr. Ghosh wrote me this letter to share with the House:

 (quoting) To the Honourable Members of the 41st Parliament of Canada:

Last year when Bill C-389 passed its third reading in the House of Commons, many questioned the wisdom of enshrining “gender identity” or “gender expression” in the Canadian Human Rights Act and whether this was redundant given that “sex” is already protected. With the NDP’s Private Member Bill on Gender Identity now up for debate, these questions are once again being raised. As a paediatrician who cares for gender non-conforming children, adolescents and their families who are part of the roughly 1-2% of all Canadians with differences in their gender expression, I would like to highlight the main reasons why this issue is crucial for Canadian society.

While “gender identity” and “sex” are related terms, they are no synonymous. The most obvious example of this dichotomy is in children born with medical intersex conditions who identify more with one gender of another, or rarely, neither or both; but their physical sexual characteristics frequently do not correspond with their identity. Are we to conclude, then, that they fall outside the protection of the Human Rights Act because their “sex” is indeterminate or incongruent with their behaviour? Youth with any variation in their gender identity…have been shown, in numerous studies and in various clinical databases, to be the group most vulnerable to extreme and violent bullying, depression, anxiety, and suicidal thoughts.

Adolescents with gender variance are 14 times more likely to attempt suicide than any other sub-group of teens, including other recognized and protected vulnerable populations. They are also the most likely to be rejected by peers and family members, and often lacking even any legal recourse to simply “be” who they are, frequently enter a spiral of self-harm that can lead to substance abuse and alcoholism. This heartbreaking distress is seen and reported even in children as young as 4 years old who simply recognize that their gender identity does not correspond with their anatomic sex, and have asked their parents to help them die. So many families of gender variant kids experience severe discrimination, societal rejection, and serious psycho-social difficulty. This translates to higher levels of divorce, greater school and emotional problems in siblings, and severe marginalization. These families need their children to be recognized, included and protected, just as any family does.

Isn’t it fair for Canada to stand up and to stand together, to say that our most vulnerable children and teens deserve to be specifically protected for the very characteristic that makes them vulnerable? Do we as a nation not have the responsibility to enshrine gender identity in the Canadian Human Rights Act? It is imperative. The medical evidence supports it; and these young Canadians, slipping through the cracks of our society, deserve to have their tears of loneliness and rejection wiped away so that instead of living and dying in fear, they may grow up to share and contribute to this wonderful country in which we are so privileged to live… (still quoting)

David Anderson (Parliamentary Secretary to the Minister of Natural Resources and for the Canadian Wheat Board):

… The desperate attempt, I would say, by member for Esquimalt—Juan de Fuca to amend the bill shows that the bill itself is not adequate. The bill is just not up to the level it needs to be in order for anyone to support it in this House. The amendments to the act as proposed by Bill C-279 are largely symbolic and vague, and I would say that they risk introducing confusion to the law. I would suggest as well that the amendments he is making do not add anything to it.

The bill is not properly designed to remedy the supposed social problem that it is aimed at addressing, and I would argue that it is largely unnecessary as well. For those reasons and a couple of others, I will be opposing Bill C-279.

… I understand that the member is now starting to try to put definition into some of these things because he is afraid he is going to lose the bill, and I think that he should lose it. Expanding the definition of sexual orientation to gender expression and to gender identity in the Canadian Human Rights Act and the Criminal Code makes who and what is being protected even less clear than it is. If the member’s purpose was to clarify the existing grounds, which I would maintain is unnecessary, he could have proposed adding an appropriate definition to the Canadian Human Rights Act. He did not do that. He has come back lately with an attempt to do that, but it was not his intention at the beginning.

… I would suggest that even with the definition he is trying to add today, he probably is still thinking that hopefully the courts and the human rights commissions will define it. However, I would argue that it is inadequate for a legislator to proceed in this way.

If our role is to bring laws forward, they should be brought forward with enough content that the courts and commissions are not the ones who are defining what those bills are and what they say. I believe that is inappropriate. It is an abdication of our parliamentary responsibility to pass laws that would leave us in a situation like that. For parliamentarians to leave new and undefined terms to the courts and human rights tribunals, I would argue, is risky and irresponsible.

I also want to point out—and I think this is probably something that the member hopes will happen—that when the courts rule on these grounds, they usually assume that the old language was inadequate and that they should make new and broader interpretations and that such broader interpretations must be sought…

Previous records or notes:

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