Posts Tagged ‘ human rights ’

On conscience-based medical exemptions

The College of Physicians and Surgeons of Ontario is currently reviewing its Human Rights Code policy on conscience-based exemptions for medical professionals, and their effect on access to medical services.

This review was sparked by a number of news reports of doctors in Ontario and Alberta refusing to prescribe birth control because of their religious beliefs. In some of those cases, patients were refused in clinics where there was only one doctor on duty.

Concurrently, south of the border, the United States Supreme Court ruled in favour of a corporation’s right to deny medical insurance to its employees when doing so would violate the owners’ religious beliefs — a case that was specifically about access to contraception. The Hobby Lobby case has been followed by several new attempts to widen the exemption, and calls to extend it to other sectors and in ways that would allow businesses to refuse service to LGBT people.

These events reflect a major shift in the way that conscience rights are being seen and applied in North America.  It is my hope that the experiences of trans* people in Alberta with conscience-based medical exemptions might provide some insights for those considering a conscience policy review in Ontario.

Alberta has had a policy for some time which allows a doctor to refuse to prescribe treatments that violate their religious beliefs in non-emergency situations. However, they are required to state that the refusal is because of their religious beliefs, and to provide a timely referral for patients to someone who will provide care, so that patients still receive service and experience a minimum of undue hardship (although to be fair, having to jump through referral hoops can be considered an undue hardship of itself, especially when one factors in the difficulties in scheduling time off from work and other real life concerns).  Ontario’s policy is similar, though not identical.

Alberta’s policy was created to protect medical professionals from having to participate in any situation that might lead to an abortion.  But in the past year, there has been an upsurge of discussion about the need for a religious or conscience-based exemption in every sector and every practice.  Access to birth control is one of the pivotal issues in play in that discussion, although it is not the only one.

As an advocate for transsexual and transgender people, I’ve needed to assist a great number of people over the years who’ve been denied medical services because they’re trans* under Alberta’s conscience exemption policy.  Sometimes people have even been denied services for things like urinary tract infections, routine checkups and cases of the flu.  To be fair, the conscience exemption is not the only factor: denials are sometimes made by doctors who say they’ve never been trained in trans* health — although this complaint is made not only in regard to trans-specific health concerns, nor does there appear to be a willingness to learn from many of those doing the refusing.

Most often, trans* people who are refused care are also not provided a referral to anyone else.  This exploits the public’s unfamiliarity with this part of the law, and that they’re entitled to a referral.  It is certainly not every medical professional who refuses to assist, but it occurs frequently enough that the trans* community has had to try to keep a list of “trans-friendly” doctors — a list that is constantly plagued by doctors no longer being able to accept new patients, or making changes in their practice or habits.  I’m always happy to add doctors to the list, with the only requirement be that they adhere to the WPATH Standards of Care (which is also the policy of Alberta Health Services).  Two years ago, someone obtained a copy of our records and stormed into the offices of several listed clinics in Calgary, raising a ruckus about doctors’ willingness to treat trans* patients, and this resulted in several requests to be removed from our list.

Although commentators sometimes note theoretical possibilities like a Jehovah’s Witness practitioner denying blood transfusions, I can say from experience that conscience policies already can and do result in people being denied access to the care they need… and are not always given “timely” alternatives.

I am sensitive to a person’s right to opt out of something because their conscience, and not just a religious-based conscience.  However, in practical experience, exemptions tend to be abused, and marginalized people pay the heaviest price.  If there is to be a conscience-based exception to medical care, a province also needs to have a much better way of coordinating timely and accessible care alternatives, and better enforce the responsibility to provide those alternatives.  In Alberta, this is difficult, since there is no centralized means of communicating with medical professionals and provide some forms of training after they’re already in the field, short of making laws — so strengthening things at a policy level proves difficult.

With the recent shift of thinking among the religious right toward making provinces “abortion-free” and denying access to previously uncontroversial things like birth control, this issue will worsen in coming years.  If there is to be a conscience-based exemption to medical care, provinces need to seek a solution to the policy quandaries this creates now.  For example, if a walk-in clinic’s only physician on duty  will not prescribe contraception, then it’s worth investigating what responsibility the clinic should have in providing a doctor who will, and in a manner that suits the patient’s needs, rather than the doctor’s.

Or what responsibility the province is taking upon itself by sanctioning health care exemptions.

(Crossposted to Rabble.ca)

Could Canada’s Anti-Sex Work Bill C-36 Also Stifle LGBT Speech?

Slightly over a week ago, Canada introduced legislation to replace the anti-prostitution laws that had been struck down by the Supreme Court of Canada.

The Conservative government has been trying to race Bill C-36 through both the House and the Senate simultaneously, at breakneck speed.  But the text of the bill has raised questions about its constitutionality.  Sex workers, mainstream media and even many Nordic model proponents and abolitionists agree that it places sex workers in even greater danger than the previous laws did.

But is there also a poison pill within the legislation that could be used to stifle LGBT and sex-positive speech?

Firstly, here is what the dubiously-named “Bill C-36, the Protection of Communities and Exploited Persons Act” does:

  • It re-criminalizes communicating for the purpose of commercial sex.  While there is said to be an exemption for the sex worker themselves, that exemption only applies if the communication is not in a public place and/or not “where persons under the age of 18 can reasonably be expected to be present” (a minor doesn’t actually have to be present), and not in the presence of another sex worker under the age of 18 (one controversy has arisen because underage sex workers can be charged if they work together for safety).  The law had been struck down previously because it put sex workers in unsafe situations by limiting their ability to screen clients, and negotiate what they were willing and unwilling to do.
  • It re-criminalizes the “common bawdy-house,” defined as a place “for the practice of acts of indecency, a place that is kept or occupied or resorted to by one or more persons.” This criminalizes massage parlours and strip clubs, if commercial sex occurs on their premises, and also prevents sex workers from having their own (or collective) space away from home to meet with clients.  The bawdy-house law had been previously struck down because it prevented sex workers from working collectively indoors.
  • It re-criminalizes “living off the avails…” (as “receiving a material benefit that derives” from the sale of sex). It does provide an exemption (subject to interpretation) for some roommates, spouses and children who live with sex workers, provided that nothing can be construed as an exploitative situation and no drugs are provided to the sex worker.  This also criminalizes escort agencies, and it is unclear how liable referrers, drivers, bodyguards, associates and other business partners could be.  This had also been previously struck down because it prevented sex workers from working together or making business arrangements that improve their safety and circumstances.
  • It now officially criminalizes the purchase of sex.  This is new (previously, it had been legal but associated activities were illegal), and it’s because of this that people are claiming the law is based on the Nordic model of prostitution laws, which aim to end demand while supposedly not targeting sex workers themselves — but Canada’s law goes very clearly beyond that point in several ways.  While many are claiming that this law will inevitably be struck down as unconstitutional, the Harper government’s gambit strategy is to criminalize sex work, so that it is no longer legally relevant whether the laws make it unsafe.
  • Something else that is entirely new is that the law criminalizes advertising “sexual services.”  Newspapers and websites are legally liable if commercial sex advertisements are found within their publications, and consequences can include fines or imprisonment — again with an exemption for the sex workers themselves, provided it is not in a public place and/or “where persons under the age of 18 can reasonably be expected to be present….” Weirdly, it appears that the Internet may be defined as a place where persons under the age of 18 can be reasonably expected to be present, for the purposes of this bill.

“Sexual services” is not defined, and I have asked elsewhere if this term could eventually be stretched in such a way that it ultimately bans porn.  The bill contains extensive search and seizure powers that at the very least provides all the legal teeth that such a ban would need.  Others have also asked if the vague nature of this term could be used to target sexual health services, sex-positive counseling, sex toys and more.

If the phrase “where persons under the age of 18 can reasonably be expected to be present” is reminiscent of Russia’s “homosexual propaganda” law, that may be by design — Canada’s criminalization of sex work owes more to Russia’s anti-prostitution laws than to the Nordic model.

(If anyone is interested in background of these specifics, I have posts at Rabble.ca about what the bill explicitly does, and how the bill makes a seriously flawed and damaging conflation between sex work and human trafficking.)

The Poison Pill

The new criminalization of “sexual service” advertising, however, is especially concerning.  Given the way that print and online publications are to be held liable for commercial sex advertising, there are serious implications for Canadians’ freedom of speech.  Beyond the obvious loss of advertising revenues that an LGBT publication might endure, there could also be wider-spread censorship if that legal liability also extends to Internet Service Providers (ISPs), for any such advertisements that could be found on their networks.

The question is not as absurd as it sounds.  It was only last July that Conservative MP Joy Smith loudly cheered Britain’s new law which required ISPs to institute a content filtering system requiring Britons to opt in if they want to be able to access anything deemed to be obscene or pornographic.  At the time, she had promised to flag this for the party to make a top priority, she said she was absolutely certain that the Prime Minister would be interested in taking action, and then nothing else has ever been said publicly about it.  Meanwhile, Joy Smith has been the Harper Conservatives’ most vocal proponent of Bill C-36, and given many comments by her Conservative Party colleagues, it would seem that she also had a hand in drafting the bill and / or lobbying for it among Members of Parliament.  And the only groups that have been very happy with Bill C-36 have been a number of religious groups, who seem to be the only consultants that were listened to.

Filters have caused minor controversies in Canada before, such as when Tim Hortons had to apologize for blocking DailyXtra from WiFi users.  However, they’ve not improved very much, over time, and have never been applied in a global fashion.

If ISPs are legally liable for (or could be threatened with legal liability for) advertisements of sexual services found on their networks under the terms of C-36, then out of necessity and self-preservation, ISPs would need to institute a content filtering system, nationwide.  Unlike Britain’s, there may not be an opt-in alternative.  This would be doubly reinforced if pornography were deemed a “sexual service” (i.e. by acting as an intermediary) at some point.

Where this becomes especially a concern for free speech is that content filters are incredibly arbitrary, and any filter system designed to effectively intercept commercial sex advertising would inevitably be overly broad.

The result of the filters implemented in Britain has been a deliberately quiet reduction in access to a great many things:

“The filters block a wide variety of content, from hardcore porn to extremist political sites… those “porn blockers” have already proven to be ineffective, blocking plenty of harmless sites and failing to tell the difference between sex education forums and porn. In one case, a domestic abuse helpline was blocked as inappropriate material, while many actual porn sites are still accessible through the filters.”

Back in January, The Guardian‘s Laurie Penny asserted that blocking more than porn was both the intent and the inevitable consequence of the government’s content filtering initiative.  Casualties of the filter system had included “helplines like Childline and the NSPCC, domestic violence and suicide prevention services.”  The New Statesman reported in December that one ISP advertised that its filters would block gay and lesbian content:

“BT have since reworded this description to remove the ‘gay and lesbian’ reference, but given that their filtering is provided by an unnamed “third party supplier” it seems highly unlikely that the filter itself has changed overnight – merely the description.”

What is and isn’t allowed still can’t be determined except through trial and error.  The Cameron government had to draw up a whitelist to force-allow sites that have been noticed to have inadvertently run afoul of the censor.  But the scope of the filters has grown since its initial introduction to also include discussions deemed politically radical — an addition stated to be because of the possibility of the propagation of terrorism.

While a C-36 inspired filter system would operate differently because of what it’s intended to block — advertisements of sexual services, rather than pornography — that doesn’t mean that the filters would be any less clumsy.  While search terms like “escort” would be natural flags for a filter system, ISPs that are worried about legal repercussions would necessarily include a wider array of tags, to try to prevent anyone from getting around the filters.   Given the subjective nature of the term “sexual services,” something that’s open to wide interpretation, this could result in the “just in case” mentality, where businesses and individuals apply the rule in an overly broad way, to avoid any possible complaints or legal liabilities. And then there’s the problem of filtering images, which don’t of themselves have keywords other than the descriptions assigned to them.

Given the avid support that MP Joy Smith has shown to both C-36 and content filtering — as well as the Bill’s obvious pandering to far right groups that have called for a Canadian equivalent to a Russian-style “homosexual propaganda” law — it’s a reasonable question to ask.

Canadians concerned about this possibility can contact their MP (who can be determined through a search on the parl.gc.ca main page), and civilly but clearly ask for assurance that the ban on sexual service advertising in C-36 could not be used in this manner.  They’re also encouraged to find out more about what the bill does, and voice their opposition or their concerns about how this affects sex workers.  They should CC their message to Minister of Justice Peter MacKay, and if their Member of Parliament is a Conservative, they might also want to copy an interested member of the opposition, such as Françoise Boivin (NDP), Sean Casey (Lib.) or Elizabeth May (Greens).  This must be done quickly, however.

Bill C-36 will be voted on at Second Reading on Monday June 16th, after Question Period at 3:00pm.  From there, it could proceed to Third (and final) Reading, or to a committee stage for amendments (although it appears the Conservatives prefer to pass it as soon as possible).

(Crossposted to The Bilerico Project)

C-36: Conflating sex work with human trafficking

I recently asked whether the vague definition of “sexual services” and definition of the Internet as a public space could be used to make the anti-prostitution Bill C-36 ban pornography.  Regardless of how one feels about porn, such a thing would certainly require a debate, and it’s a question worth asking.

I also looked at the obvious aspects of C-36 that have sparked outrage from sex workers, and occasionally even from abolitionists.

There are further discussions as well — more concrete than speculation, but still under the surface of the legislation itself.

Conflating sex work with human trafficking

Anti-prostitution Bill C-36 explicitly puts sex work on the same footing as human trafficking and conflates the two in law.  Indeed, they have been consciously equated by Peter MacKay and by the bill’s proponents.

The rhetoric used when introducing the bill also does this, through employing a language that claims that people (particularly women) sell themselves or are sold as commodities, rather than simply selling a service.  Under this line of thinking, it is considered impossible that sex workers might retain any personal autonomy.

Human trafficking certainly exists, although not as frequently as it is often claimed (studies that claim high numbers of trafficking incidents often similarly conflate it with sex work). The fact that it happens less often does not mean that we should care less or believe that the occurrences of it are somehow less horrible — but it does justify recognizing when the scope of it has been unjustly stretched beyond what human trafficking actually is.

The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (or Trafficking Protocol) defines human trafficking as:

“The recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs….”

Human trafficking doesn’t always include border migration, and the exploitation isn’t always about the selling and buying of sex, but the consistent elements are that one person ends up controlling another, via unethically-obtained consent or no consent at all, for the purposes of exploitation.

These circumstances sometimes do occur with sex work, but they aren’t inherent to it.  Sex work does not always have elements of coercion, of control, or of vulnerability. Sex work actually includes a variety of trades, including street work, escorting, stripping, lap dancing, professional domination, massage, survival sex, porn, and more, making it difficult to generalize about it in an absolute fashion.

The Harper government (and supportive media) has had to paint sex workers, advocates and organizations as rare outliers, in order to maintain the illusion that sex work is always exploitative. A great many sex workers have a considerable degree of personal autonomy and independence.  However, those who are in exploitative circumstances are always those who are disproportionately visible, because they will justifiably make contact, seek help and make themselves visible. Unfortunately, this means that the dire circumstances experienced by those who do seek escape become interpreted as being representative of sex work as a whole.

Worse, using the term “human trafficking” interchangeably with sex work actually confuses the issue significantly, diverting funds and energy away from where it’s needed and toward combating legitimate sex work as well.  This makes it impossible to get clear and realistically comparative data, and reallocates funding away from effective anti-trafficking initiatives.  It undermines the fight against trafficking and tarnishes the organizations that try to do the needed work, making it much harder to address actual human trafficking.  And it has allowed far right moralists who are more interested in controlling peoples’ sexual habits seductively hijack the dialogue that once considered womens’ autonomy and choice to be important.

Under Bill C-36, for example, the emphasis is placed on exit services.  But victims of human trafficking have specific (and often urgent) needs that go far beyond exiting sex work.  These start with citizenship: far too often, the response to a trafficked person in Canada is to rescue them from an exploitative situation, and then deport them to the very same conditions that made them vulnerable to exploitation.  Certainly, without citizenship, access to other social services and the tools they need to begin lives free of exploitation becomes difficult or impossible.

And while sexual exploitation justifiably triggers anger and requires remedy, human trafficking also involves far more than sexual exploitation.  It is believed that there are nearly 21 million trafficked persons, worldwide, according to an estimate by the International Labour Organization.  Of these, 4.5 million are victims of sexual trafficking.  The issue of persons exploited for sexual labour is urgent, yes.  But it does not encompass the whole problem of human trafficking.  The approach of Bill C-36 allows the public to believe that we’ve addressed everything that matters.

The embarrassing fall of Somaly Mam — who resigned after questions were raised about her autobiography, tactics and alleged coaching of shocking stories about sex trafficking — should provide a strong cautionary tale about how we can sometimes react to the issue by willingly disregarding or failing to check key facts.

If sex workers did not have to feel targeted by authorities or ashamed to reveal who they were, they could in fact become key allies in detecting and identifying where and when sexual trafficking occurs.  Besides…

“Kung said the employees were required to share rooms in two five-bedroom homes owned by their boss, Tony Van Den Bosch.

“They had no privacy in the house. The owner would come in and out as he pleased and would enter people’s rooms,” Kung said.

“In addition, Kung said, the workers were asked to pay rent once at the beginning of the month, and an additional $200 “tip” on top of their monthly rent in the middle of the month, for the double-bunked rooms.

“… The employer also regularly asked the workers from Mexico for their passports and would hold them for periods of time, alleged Kung.

“Two of them were fired and sent back to Mexico after raising concerns about their working and living conditions. Two of them actually fled in the middle of the night one night because they were so afraid…”

How is sex work inherently always incontrovertibly equivalent to human trafficking, but the Harper government’s Temporary Foreign Worker (TFW) program not?

The paternal infantilization of women and the idealized rescue of exit services.

Bill C-36 assumes that everyone engaging in sex work is a victim. By doing so, this government ignores the experiences of people who choose to engage in sex work.  Unless there is direct force or coercion involved (which is procuring, something that was still illegal before this law was introduced), there are two intersecting factors that motivate people to engage in sex work: poverty and opportunity.  The balance between each will vary per person.

While promising to invest money in exit services, the same government fails to address one key driver — poverty — and completely disregards the other as non-existent.

Between driving wages down with anti-union policies, the Temporary Foreign Worker (TFW) program, cuts to the public sector, refusing to address economic and gender disparities…  the Harper government is a major driver of that poverty. If the choice is to earn as much in two weeks working at a McJob as one could earn in a few nights doing sex work, then that’s not really much of a choice, is it?

Certainly, there’s no talk about addressing job opportunities and wages that would provide a reasonable alternative.  Despite the stigmas, danger and even criminalization, sex work is one of the few ways that people might have to escape oppressive economic circumstances.

And by taking away any ability to work in visible spaces or safe spaces, the Harper Conservatives are driving the industry underground, creating vulnerabilities. The only thing that the government is offering is funding for exit programs.  Leave or else.  This bill does everything possible to ensure that exiting sex work is the only option.

The rescue industry

The Conservatives have pledged $20 million toward exit programs and enforcement.  It’s not known how much of that money will go to increased policing costs.

Exit programs are one area where a person really has to wonder how a law is going to be used.  Will law enforcement be used to push people into exit programs?  Will there be coercion or obligation to participate in them?  Will access to assistance or public services be conditional upon participating in an exit program?  If a person does not want to participate in an exit program, will the penalty be charges for things they would not have otherwise been punished for?  Will participation in exit programs be the only way a sex worker can avoid losing custody or visitation of their children?  Will religious institutions (similar to or allied with those who advised the bill, even) be administering these exit programs, and will proselytization be a part of the exit strategy?

Some of these questions sound appalling or absurd, but there are certainly precedents south of the border where these became the consequence of anti-prostitution laws which push exit programs.

A matter of advice

In crafting Bill C-36, there was a clear reliance by the Harper government on the advice of far right religious organizations like REAL Women of Canada and the Evangelical Fellowship of Canada, and virtually no weight given to the people directly impacted by the legislation.

One of the organizations that stands to benefit from the $20 million that the Harper Conservatives have pledged to invest in exit programs is [free-them], which describes itself as an anti-trafficking organization.  But the organization appears to have a moralist slant that extends beyond that mandate.  When MP Joy Smith (who the organization describes as “Free-Them’s ally in fighting human trafficking”) issued a statement in support of Britain’s mandatory porn opt-in policy, [free-them] was quick to follow up with a similar statement:

“Children need to be protected from pornographic images that over time can desensitize our youth and create a false sense of sexual reality, and even lure children into a situation of exploitation that no child should ever experience. As Prime Minister Cameron clearly states, this regulation is not banning legal pornography, but rather increasing an extra level of security and protection from pornography getting into the hands and viewership of youth and children that should not be exposed to this. As adults, we have a responsibility to the young generations growing up to protect and defend children and youth…”

If it’s difficult to conflate human trafficking with all of sex work, then it’s even harder to equate it with the entirety of pornography.  Exploitation does happen in porn, yes, but in this case, there is also a highly visible contingent of participants who have been obviously not trafficked, and have relative personal autonomy.

The longer one follows the threads of Bill C-36, the clearer it becomes that it is far less about exploitation, and far more about legislating a specific moral vision.  And in the process, the issue of trafficking itself has become hijacked.

Footnote: While I had never set out to become an activist for sex workers’ rights, I’ve come to believe that the freer and more empowered a sex worker is, the less opportunity exists for exploitation, and the more opportunity there is to escape it if it happens. Criminalization achieves the opposite effect.

(crossposted to Rabble.ca.  Concerned about progressive media in Canada? Support rabble.ca)

Bill C-36, the Protection of Communities and Exploited Persons Act: an overview

I recently asked whether the vague definition of “sexual services” and definition of the Internet as a public space could be used to make the anti-prostitution Bill C-36 ban pornography somehow.  Regardless of how one feels about porn, such a thing would certainly require a debate, and it’s a question worth asking.

That is, however, speculative.  The bill itself contains many clearer aspects that have sparked outrage from sex workers, and occasionally even from abolitionists, as well (though the objections vary).

The Canadian government’s public consultation on sex work — which sex worker advocates felt had been slanted to try to sell the “Nordic Model” of anti-prostitution law — was reported to have shown that a majority of Canadians want the selling of sex to be legal for the sake of the people who engage in it, but a mix (slight majority) of Canadians support criminalizing the buying of sex.

Apparently Justice Minister Peter MacKay decided that meant that Canadians wanted sex work criminalized in such a way that sex workers wouldn’t always be technically charged, but it would be otherwise made totally impossible to work legally and safely.  Rather than honour the safety concerns raised by the Supreme Court of Canada, the Harper government has actually exacerbated the situation in hopes of forcing sex workers into exit programs.

“The purchase and sale of sex has never been illegal in Canada,” MacKay said explicitly. “That changes today.”

It is, of course, the government’s hope that by completely criminalizing sex work, the Supreme Court of Canada’s argument — that anti-prostitution laws do harm to sex workers by preventing them from working safely — becomes irrelevant.  Courts never concern themselves with whether circumstances are made safe enough to commit a crime.  And that’s why it has decided to criminalize the buying of sex in addition to re-criminalizing everything that was struck down (with a few narrow exemptions for sex workers themselves)… and throw in some new restrictions for good measure.

(It’s alleged that an unpublished Ipsos Reid poll reportedly contradicts this government position, but the results of that poll are being withheld)

Pivot Legal Society has condemned the bill:

“This cynical, dystopic model does not resolve the problems found by the Court in Bedford to be unconstitutional, and adds new ones such as the prohibition on advertising. The Charter rights engaged by this proposed law include life, liberty, security of the person, freedom of expression and equality. Arguably all are breached.

“This is not the “Nordic” approach, nor is it a Canadian variation on the “Nordic” approach. It is an unconstitutional variation of our broken laws that impose more danger, more criminalization, and fewer safe options, contrary to the requirement of the Supreme Court of Canada to address these dangerous and ineffective laws.

“This made in Canada model will lead to continued epidemic of violence against sex workers in Canada…”

What the bill does:

1) Sellers are not criminalized or targeted… except when they are.

It’s claimed that Bill C-36, the Protection of Communities and Exploited Persons Act targets buyers of sex but doesn’t target those who sell it.  That is incorrect.  Sex workers can absolutely be charged:

  • if they work in the presence of sex workers under 18 years of age — even if they’re under 18, themselves;
  • if they work at home where children reside, if it’s asserted that the children are being negatively affected (and what about having to go visit grandma all the time… is that a negative effect?) — more on this in a moment; and
  • if they communicate in “a place where persons under the age of 18 can reasonably be expected to be present,” stop traffic, etc. (the penalty for this could be up to five years in prison)

The mixed signals on charging sex workers opens up some ability for law enforcement to use the potential for charges (and the lack of clarity on what is legal) to manipulate people.  This could result in the threatening of charges in order to intimidate a person into incriminating themselves or incriminating others (perhaps even falsely, in order to escape trouble).  This lack of clarity could also be used to scare people into pleading guilty (regardless of whether it’s true) to seeming lesser charges, in order to escape risking more frightening legal possibilities.

Regardless of the exemptions included in the bill, there are still institutional barriers to keep sex workers from receiving assistance from police or communicating with them with confidence.  For example, the search and seizure powers make no exemption for sex workers themselves.  Even if they can’t be charged for advertising their own services, what’s to stop police from seizing their computers and targeting their current and past clients in one fell swoop?  It’s incredibly naive to think that the rapport between law enforcement and sex workers would be improved in any way by this law.

Could the legislation affect access to social services as well, if those services aren’t specifically exit-related? Or custody of children?  Even if a sex worker cannot be charged for advertising sexual services in a particular situation, might it still violate a lease by being classified as a criminal act?  The implications are uncertain.

2) Communication.

The law against “communicating for the purpose of…” — which put sex workers in unsafe situations by limiting their ability to screen clients and negotiate — is back, and is actually made more restrictive by applying it to “a public place, or in any place open to public view, that is or is next to a place where persons under the age of 18 can reasonably be expected to be present.” That last part is key: a minor doesn’t actually have to be present, there only needs to be an undefined reasonable expectation (and it will be up to the courts how widely that can be interpreted).  Your car could be a public place.

In the case of sex workers who have children, even if their children can be kept unaware of their parent’s pursuits and are never present when they see clients, does their home become a “public place?”

It’s still never safe for buyers to communicate to buy sex, but where does it become safe for a sex worker to communicate to sell sex? If they can only communicate from home and without the use of the Internet or public spaces, well, that certainly complicates things.  Bill C-36 distinguishes itself by targeting indoor sex work so that it becomes impossible to engage in safely, even if you’re the sex worker who is supposed to be exempt from the law.

A bar is still a public place, but it’s not “a place where persons under the age of 18 can reasonably be expected to be present.”  So it’s legal-ish or closer to legal-ish, and the penalties for anyone caught are smaller. So now, the Harper government has made sex workers safer by pushing them into darkened spaces with clients who have been drinking.

But at the same time, there is a disincentive for bar owners to allow sex workers to communicate on their premises, for fear that it could be claimed that the bar or management might be materially benefiting from the presence of sex workers in some way (i.e. increased sales and patronage).  So then there is a constant harassment of anyone in a bar who is suspected of being a sex worker.

By tactical reasoning like this, it becomes a strategic minefield in which people are forced to take more chances, and place themselves in the spaces of people they wouldn’t normally trust, simply because those people are likewise willing to take the risk of associating with them.

Communication can’t be understated.  If one can’t take the time to negotiate clearly, has to speak in code to avoid detection, and has to resort to an imply / infer scenario, then it makes it impossible to screen clients to see how agitated they might be, creates an automatic mutual distrust between workers and dates, and makes it hard to set limits about what types of sexual act one is or isn’t willing to perform.  This was a key issue at the heart of the Superior Court of Ontario and Supreme Court of Canada rulings that originally struck down the three anti-prostitution laws replaced by this bill.

3) The Bawdy-house rules.

The ban on “common bawdy-houses” is back, with the bawdy-house defined as a place “for the practice of acts of indecency, a place that is kept or occupied or resorted to by one or more persons.”

This targets massage parlours (if sex is exchanged) and strip clubs (if sex is exchanged).  Additionally, if a sex worker keeps a separate address to work from, it’s considered a bawdy-house. So now by law, sex workers can only work from their homes.  Because it’s oh so much safer for everyone to know where you live.

Of course, one can imagine the condemnation that’s going to be heaped upon sex working mothers who work under the same roof that their children live under, regardless of whether the kids are ever actually present when anything is happening.  But the law actually pushes them to do that.

Sex workers sometimes share a separate address, or prefer to work in places like massage parlours or strip clubs, so they can work together for mutual safety.  Under this law, that’s not a legal option.

4) What constitutes a material benefit from the sale of sex?

“Living off the avails…” returns as “receiving a material benefit that derives” from the sale of sex. It does provide an exemption (subject to interpretation) for some people who live with sex workers, provided that nothing can be construed as an exploitative situation and no drugs are provided to the sex worker:

“… evidence that a person lives with or is habitually in the company of a person who offers or provides sexual services for consideration is, in the absence of evidence to the contrary, proof that the person received a financial or other material benefit from those services…” except “in the context of a legitimate living arrangement with the person from whose sexual services the benefit is derived…”

How that will be interpreted remains to be seen.  It’s not entirely clear if this provision targets assisting arrangements from referrers, drivers, bodyguards, associates and other business partners, if something beneficial (not necessarily cash) is exchanged.  The Justice Minister says it’s up to interpretation of whether the associate is exploitative in any way.  Sometimes, the practical application of something like this is to arrest all, use the law to maximum advantage, and let the courts worry about whether or not a situation is exploitative, after the fact.

Escort agencies, massage parlours (if sex is exchanged) and strip clubs (if sex is exchanged) are all banned by this provision, with a potential sentence of up to 10 years in prison.

5) The new ban on all advertising of sexual services

This bill reaches further than anything previous, by banning all advertising of sexual services.  Anyone who knowingly provides a space in which to advertise (whether in newspapers, online message boards, websites, or any other form of media) can face fines or imprisonment.

Beyond the obvious questions about freedom of speech, this raises other questions.  How much legal responsibility does an Internet service Provider (ISP) shoulder if sexual service advertising is accessed through its networks?  What steps does it need to do to avoid legal action, and how engaged will ISPs need to become in tracking such advertising?  Does this raise questions for other areas of privacy and freedom of speech for Canadians?  When I asked if C-36 might ban porn, one of the lines of reasoning was that the threat of legal action could push ISPs into instituting arbitrary and overly broad content filters, just to be safe.

And finally, is the Internet a public place? MacKay explicitly referred to online advertising, so that would seem to mean that it is interpreted that way in the law.  And while it’s said that sex workers would not be charged for advertising their own services, if the Internet is widely interpreted as a public place “where persons under the age of 18 can reasonably be expected to be present,” that exemption for them might not apply to Internet advertising.

It could almost end up working like entrapment.

Tomorrow: Conflating sex work and human trafficking

(crossposted to Rabble.ca DentedBlueMercedes.  Concerned about progressive media in Canada? Support rabble.ca)

Could anti-prostitution Bill C-36 also ban porn?

One of the concerns that has been raised about Bill C-36 is that “sexual services” is not defined.

Terri Jean Bedford, one of the plaintiffs in the case that overturned the previous anti-prostitution laws, has raised this question a number of times, without receiving an answer.  A professional dominatrix’s job, after all, involves fulfilling a fantasy, and may not include any actual sex acts at all.  Does sex have to happen in order for there to have been a “sexual service?” Where is that line drawn?

It’s because of this vague nature of the terminology that some are asking if the wording could also inadvertently ban advertising and / or paying for sex toys or the services of a sex therapist.  Advertising sexual health services could also come into question.

Is porn a “sexual service?”

Is a sexual service exchanged via pornography?  It could be argued that porn acts as an intermediary, at least, so it might be a question that is subject to the interpretation of whichever judge happens to hear it.

There are people at both ends of the political spectrum who oppose pornography and would be amenable to a ban on it — from the right usually because of concerns about morality, and from the left often because of concerns about the portrayal of women and the possibility that it contributes to rape culture.  There are also opponents at both ends of the political spectrum as well, and for the purposes of this question, it is up to readers how they feel about the prospect of such a ban.  However, people of all political stripes would hopefully agree that such a sweeping form of censorship should at least require a lengthy debate.

Under the original terms of the bill, concerns about advertising sex already treads into the realm of censorship and freedom of speech.  If that is coupled with flawed and vague terminology, it’s reasonable to ask how far beyond the original intent that could be taken.

If the bill could be used to ban porn (and that question might remain entirely speculative until something actually does wind its way through the court system), all it would take is for someone wanting to close their local porn shop to try to sue them for — or push for them to be charged with — advertising sexual services.  There’s no guarantee that anyone would succeed at that, but the possibility that it might is a question worth asking.

Key mechanisms in C-36

There are mechanisms within the bill that would certainly assist such a use of the law.

The bill includes search and seizure powers for materials that are “obscene, a crime comic, child pornography, a voyeuristic recording or an advertisement of sexual services.”  To be fair, all of those items besides “advertisement of sexual services” are already listed in the Criminal Code as materials that can be seized, currently.  But aside from the obviously important proscription of child pornography, none of those other things are characteristically illegal to buy or possess anymore (in the case of voyeuristic recordings, their actionability hinges upon how the recording is obtained), and so we don’t see searches and seizure of pornography, except through some federal departments like the Canada Border Services Agency, which simply confiscates material.  However, this law does ban advertisement of sexual services outright, so there would be greater enforceability.

Additionally, for the purposes of this law at least, the Internet is considered “a public place, or in any place open to public view, that is or is next to a place where persons under the age of 18 can reasonably be expected to be present” — or at least the Harper government sees this phrasing as the best mechanism to include online advertising.

With both the search-and-seizure powers and definition to include online media in the bill, even if it turned out that porn was not legally interpreted as a sexual service, C-36 still provides the structural basis needed to build an anti-porn law, with a minimal amount of effort required.

Soft censorship and stealth

Bill C-36 would allow the Harper Conservatives to institute a ban on porn without appearing to be pro-censorship.  A significant portion of the Conservative base uses freedom of speech as a rallying point, especially when it comes to divisive speech, tabloid-style and gotcha journalism, and hateful (though not necessarily legally hate) speech.  Even calling out hateful speech or non-legal consequences for speech can interpreted as censorship by this contingent.  So if the government wanted to establish a ban, it would probably need to be done by stealth, and look like an accident.

Regardless of how broadly “sexual services” is defined, the ban on advertising could conceivably be used to pressure Internet service providers (ISPs) to institute a content filter system much like MP Joy Smith had been calling for, only months ago.  That is, if ISPs are threatened with the possibility being held legally accountable for any ads obtained through their networks, a content filter then appears to be the path of least resistance.  And no matter how specific ISP programmers might try to be, content filters have a tendency to be arbitrary, overly broad, and filter unintended content, just to be safe.  Even if a solid ban cannot be accomplished, soft censorship would remain possible.

Where persons under the age of 18 can reasonably be expected to be present: the legal tactic

The eerie phrasing of “a place where persons under the age of 18 can reasonably be expected to be present” first raised this question in my mind, because it sounds very much like the legal tactic used in Russia’s law banning all “homosexual propaganda” (that is, anything that portrays LGBT people positively — and I’m not speaking hyperbolically when I say that).  When that law passed, the Canadian and American religious right applauded the move, and began debating ways to bring such a law to North America.  Although it could be a haphazard trek from point A to B, each win that occurs in between provides red meat to key elements of the social Conservative base, and injects legislation into the bedrooms of the nation.

“Protective” Custody

The way that trans people are housed in detention and correctional settings has come to attention recently, after British comedian Avery Edison was detained by the Canadian Border Services Agency (CBSA) for having previously overstayed her visa — and then she was initially sent to a mens’ prison while the issue was sorted out.  After an outcry. Ms. Edison was moved to a female facility, but a number of other experiences that trans people have had with CBSA and Correctional Services Canada (CSC) have also come to light.

On Friday, I’d posted an article discussing some of the issues that come into play regarding housing in detention and corrections facilities, as well as a starting point toward a better solution. Hours later, news surfaced of yet another serious housing incident.

Katlynn Griffith was taken to a the Ottawa-Carleton Detention Centre, and placed in a holding cell with four men.  She asked to be moved because of concerns for her safety, so she was moved to protective custody.  In this case, “protective custody” means that she shared a cell with two accused male sex offenders.

She was finally transferred to a womens’ section of the jail the following morning.  CBC reports:

Baxter said while in custody, Griffith was subjected to homophobic slurs from inmates and requests to perform sexual acts and was allegedly referred to as ‘it’ by guards.

The Cracked Crystal Ball II calls this an act of aggression on the part of the guards:

The only way this makes sense is if the guards believe that their role is to mete out arbitrary punishment over and above what incarceration already is.

How often does this have to continue to happen before CSC and CBSA admit that there’s a problem?

Reprising from Friday’s article:

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…

Extensive discussion at the link.

On the Detention of Trans People

(This article has been updated with information newly disclosed in a report by Global News — Mercedes, 24April14)

“… 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 the actual practice under the Harper government has been to ignore the policy and deny GRS, which the government insists is not essential (contrary to the medical consensus).  The Conservative government does so via a distortion of the “real life test” (RLE, better known as “real life experience”) recommended by the WPATH Standards of Care (SoC).  The SoC requires living as ones identified gender for one year in the community, and the government considers that RLE suspended when a person is incarcerated (contrary to WPATH’s intent).  This “suspension” of the RLE also opens up the possibility of ignoring an inmate’s attempt to transition, or denying things like hormone therapy, although it’s not certain if this is occurring.  Prisoners’ Legal Services, based in B.C., is fighting to change CSC’s interpretation of the RLE.

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.

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