DBM is collection of theory, politics and advocacy for trans, LGBT, sex and gender minorities, and their place in a decolonial world. From Alberta-based writer Mercedes Allen and guests.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Questioning Aspiration and Motivation

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

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

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

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

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

Genocide in 2010

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

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

And again, we remember why human rights are necessary.

Free Speech, Incitement and Harassment

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

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

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

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

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

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

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

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

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

Bill C-389 Status Update

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

(diaried at Pam’s House Blend)

The Conservative government has ordered Correctional Services Canada to halt all medical coverage for gender reassignment surgery. The change took effect immediately, on Friday November 19th.

“The courts have ruled that CSC must provide essential medical services to inmates. However, we do not believe that sex change surgery is an essential medical service or that Canadian taxpayers should pay for sex change surgery for criminals,” Public Safety Minister Vic Toews told QMI Agency.

Even so, regardless of what they may have been convicted of, inmates are entitled to essential medical treatment.  A 2001 Canadian Human Rights Tribunal decision, backed up by a 2003 federal court ruling, required that GRS be considered essential medical treatment.  So the Conservative government is in direct violation of what it has already been ordered to fund. The 2003 National Post article is no longer online, but is archived at Prisonjustice.ca:

NATIONAL POST
Janice Tibbetts
Friday, February 07, 2003

OTTAWA – Canada’s federal prisons will be forced to allow sex-change surgery for transsexual inmates as a result of a court ruling that concluded a blanket ban is discriminatory.

“If the medical opinion is that sex reassignment surgery is an essential service for a particular inmate, it follows that it should be paid for by Correctional Services Canada, as would any other essential medical service,” wrote Madam Justice Carolyn Layden-Stevenson of the Federal Court of Canada.

Corrections Canada will revise its policy because of the decision, spokeswoman Michele Pilon-Santilli said.

But she warned that sex-change operations will not be available for all transsexual inmates.

The decision upholds a 2001 decision from the Canadian Human Rights Tribunal in the case of Synthia Kavanagh.

The tribunal said that it was discriminatory for prisons to have a blanket ban on sex-change operations but not on “non-essential” services such as the removal of tattoos.

The Corrections and Conditional Release Act requires prisons to provide essential health care to inmates.

…

The timing of this is curious, considering it coincides with a wave of religious right opposition to Bill C-389, which would extend equal rights to trans people.  One has to wonder if the intent is to exploit Canadians’ lack of sympathy for convicts in order to show off a faux worst case scenario of “we’re going to have to pay for sex changes for murderers and rapists if we give them rights.”

“CSC is legislatively mandated to provide every inmate with essential health care and reasonable access to non-essential mental health care that will contribute to the inmate’s rehabilitation and successful reintegration into the community,” said CSC spokeswoman Sara Parkes.

Of course, what could better facilitate a transsexual person’s reintegration into the community than helping align their physical sex with their identity if they need it? Although we tend to think of the extreme of murderers and sex offenders when we think of inmates, the majority of those convicted are there because of a poverty issue or come from an environment of poverty that made it easy to slide into crime.  I fail to see how releasing someone into society with an inevitable poverty issue (having to self-fund GRS) is going to help them avoid reoffending.

Currently, CSC houses inmates according to the genitalia they have.  Amazingly, CSC fails to see how this might make someone particularly vulnerable to the problem of prison rape.  One quarter to half of trans inmates are not taking hormone therapy or denied access to it.

(Crossposted to The Bilerico Project)

The following reprises the earlier article, Why “Sex Change” Surgery is Medically Necessary:

Read more

(The following is a guest post from Jan Lukas Buterman, who spoke at the Calgary Transgender Day of Remembrance.  Readers of this blog might remember him as the substitute teacher who was fired from a publicly-funded Catholic school district… which felt so strongly about the issue that they put it in writing.  He is also a co-founder and chair of the Trans Equality Society of Alberta, and a member of the Centre for Organising and Public Education (COPE), “an emerging coalition of academics, educators, activists and organizers interested in promoting positive social, political and economic change and building community.” — Mercedes)

Today is a memorial. And at a memorial I’d like to focus on the memories of the people we’ve lost. I’d like to speak of the amazing lives of those who lived and loved and died by the hand of others. I’d like to speak of the thousands of little ways each of us survives the evils of genocide against our community, but I can’t.

I can’t … and I. Am. Angry.

I am angry that in the past week I’ve seen transphobic statements suggesting that including gender identity and gender expression in the Criminal Code of Canada will result in fictional crimes in mythical bathrooms.

I’m angry that in the past month I’ve heard a massive outcry at the tragedy of suicide by gay youth, yet hardly a mention of the vast numbers of death by suicide for gender-variant youth.

I’m angry that in the past year I’ve heard misgendering and misidentification from educated and erudite people making claims to some sort of higher moral ground because they have jobs and I don’t, or they have a religion that I don’t, or they have a penis that I don’t.

At what point do we as a nation and a society realise that when Canada speaks of having rights and freedoms for ALL people, all people includes gender-variant people?

I would like to suggest to you as a nation and as a society we get to the point where we actually include ALL people under the notion of all people when we refuse to be seduced by the siren call of stealth and anonymity.

We’re told over and over again that if we would just behave ourselves, we’ll get what we need … eventually. If we just keep quiet about this or that, everything will work out for the best. If we keep a stiff upper lip, cross our legs and think of the Queen, the show will carry on.

Most assuredly, the show WILL carry on. The show will carry on without us: our existence deliberately erased for something as simple as being “too complex” for a good soundbite or something as challenging as being too likely to cause other people discomfort if “they” only knew. We become a dirty little secret, we become the skeleton in the family closet, firmly locked away to gather dust until all is long turned to ashes, hidden and unknown.

History fascinates me. History brings us lessons about the oppressed and the oppressor. If we know where to look, history also shows us a great deal by its absence—a silencing that leaves faint echoes only in the dark corners where people are easily convinced not to tread. For it is said that history is written by the victors, and this is most certainly true—just look at which atrocities are or are not mentioned in your schoolbooks. For fun, try comparing histories written from the perspective of different peoples or of different nations, and see how much of that history is set in stone versus how much of that history is mutable, changing from perspective to perspective, from age to age.

Where are trans people in this history?

I suggest to you that in this time and this place including trans people in the grand narratives—our histories, our understanding of our origins—have, for the most part, been erased. And as horrifying as the thought of shadowy figures editing out any reference to the lives or influence of anyone who might be constructed as “different” is, far more horrifying is the way that we ourselves work to erase our own existence.

Let me shift slightly here, because I believe this is an incredibly important point but also one that is deeply personal and painful for each of us, and I don’t want the minutae of our inner thoughts to overwhelm what I’m trying to say. Instead, I’d like to share with you a different experience that I believe is germane to my point but is perhaps also enough “different” or separate from most of our collective experiences to be able to better illustrate my meaning.

In 2001, I was diagnosed with invasive ductal carcinoma in situ, a condition commonly known as “breast cancer.” Breast cancer comes in several ‘flavours’, so to speak, but mine was among the most common. When I was diagnosed, I was living as a woman. Indeed, being somewhat on the thicker side from time to time, I still hadn’t figured out one rather important aspect of self, that of being not-a-woman. [Actually, I've had other severe health problems to contend with much of my life and so in fairness, I've usually been far more focused on staying alive rather than much deep inner reflection on why I was or was not quite like the other girls—I assure you, for most of those years I wasn't much like any of my peers, whether male or female].

In any case, I ended up doing chemo for several months as part of an international research study. The cancer hospital in Edmonton has a number of amazing support services but I found one of those support services in particular deeply troubling: as a patient, I felt there was a significant push for women to take workshops to learn how to style and wear a wig, as well as how to put on facial makeup that would create a less chemo-tinged fleshtone and re-draw eyebrows that had fallen out. These practices were in addition to encouraging women to obtain breast prosthetics (if they hadn’t undergone breast reconstruction).

I didn’t take any of these workshops.

At first, the reason was simple enough: I’m terribly allergic to many of the materials found in makeup so even when my immune system isn’t flatlined by chemo these aren’t products I want anywhere near me. Likewise, I have the same problem with some of the materials used to construct wigs.

Now, let me explain that some people take to chemo rather well and bounce back pretty quickly. I, unfortunately, am not one of those people. During my chemo regime and for many months thereafter, my waking day was somewhere between four to six hours; the rest was lost to exhausted sleep.

During those handful of waking hours, I was far too tired to do much beyond thinking. One of the things I thought about—a lot—was the way women were encouraged to wear wigs and makeup and prosthetics. The way they were encouraged to erase the fact that they were different, erase the fact that they were undergoing treatment, erase the fact that there are far more than a handful of people living with breast cancer even in a city of only a million people.

No doubt the wigs and makeup makes people feel better—who doesn’t want to look their best even when they feel their worst?

But erasing this part of our existence—erasing the fact that we were women with breast cancer—served several purposes beyond helping women feel better about themselves during a painful and difficult treatment. Erasing our experience and our existence helped a lot of other people feel better—they didn’t have to be confronted with the ugly reality of impending death by their family members, neighbours, or colleagues “looking” ill.

Most frightening of all, erasing our experience and our existence made it incredibly difficult to form community—for all I knew, every third woman on my block was undergoing chemotherapy for breast cancer at the same time that I was, but unless I ran into any of those women at the hospital, I’d have no way of knowing we shared this bond.

We were a community of survivors but each of us were an island unto ourselves.

And that brings us back to, well, US. Trans-identified people. Gender-variant people. People who are “different.” People who other people have decided to label as “not normal.” During the Transgender Day of Remembrance, we take time to remember the names of some of those whom we have lost: specifically, those we have lost through murder. We reflect on the horror that goes with the ultimate silence of death.

But as I said, I am angry. I am angry that despite having assurances in Canada’s Charter of Rights and Freedoms that “the rights and freedoms referred to in it are guaranteed equally to male and female persons” [Charter, S. 28], those of us gathered here today are well aware that the silencing we remember during the Transgender Day of Remembrance is but a single facet of silencing.

Trans people are silenced through many means: through coercion, threats and violence. Even more banal is the day to day silencing involved in trying to navigate the myriad levels of authority for name changes, documentation and identification changes, and access to many of the rights of citizenship that most non-trans identified people never have cause to think about.

If I dare to dream, the dream is that we can differ, and we need not beg to differ. That we can reach out and grasp our rights as citizens without the interference of equivocation and obfuscation by people who have no more reason to know or care what’s in our pants than the person next door. But to see that dream realised, we need to stand and speak. We need to move beyond surviving in hidden corners, we need to speak louder than the echoes left by reverberating, painful silence. We need to build bridges between our islands.

The siren call of stealth and anonymity is seductive, but the danger of erasing ourselves through stealth and anonymity is the danger of each remaining on our island only until we are booted off by the next council’s vote.

Martin Luther King Jr. once said that “Our lives begin to end the day we become silent about things that matter.” I ask you to find ways to break silence, to speak even when not spoken to. To find a solution to silencing by speaking out, until we are not single voices scattered across the nation but a society of many harmonies.

Thank you.