Posts Tagged ‘ transgender ’

“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

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

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

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

Some of you have heard this one before…

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

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

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

A Human Rights Law Point of Note

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

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

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

Housing of Trans Inmates and Detainees

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

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

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

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

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

Identity Documents

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It’s More Than Housing

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

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

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

Rape and Torture Were Not the Penalty

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

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

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

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

Reblog: A Statement of Trans-Inclusive Feminism and Womanism

This is how you decolonize activism.

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

A Statement of Trans-Inclusive Feminism and Womanism

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

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

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

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

– Moderators

A Statement of Trans-Inclusive Feminism and Womanism

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

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

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

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

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

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

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

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

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

Signed by:

Individuals

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

Luma Andrade  (Federal University of Ceará, Brazil)

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

Talia Bettcher (California State University, Los Angeles)

Lauren Beukes (novelist)

Lindsay Beyerstein (journalist)

Jamie “Skye” Bianco (New York University)

Hanne Blank (writer and historian)

Kate Bornstein (writer and activist)

danah boyd (Microsoft research and New York University)

Helen Boyd (author and activist)

Sarah Brown (LGBT+ Liberal Democrats)

Christine Burns (equalities consultant, blogger and campaigner)

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

Gloria Careaga (UNAM/National Autonomous University of Mexico)

Avedon Carol (activist and writer; Feminists Against Censorship)

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

Jan Clausen (writer, MFAW faculty, Goddard College)

Darrah Cloud (playwright and screenwriter; Goddard College)

Alyson Cole (Queens College – CUNY)

Arrianna Marie Coleman (writer and activist)

Suzan Cooke (writer and photographer)

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

Molly Crabapple (artist and writer)

Petra Davis (writer and activist)

Elizabeth Dearnley (University College London)

Jaqueline Gomes de Jesus (University of Brasilia, Brazil)

Sady Doyle (writer and blogger)

L. Timmel Duchamp (publisher, Aqueduct Press)

Flavia Dzodan (writer and media maker)

Reni Eddo-Lodge (writer and activist)

Finn Enke (University of Wisconsin, Madison)

Hugh English (Queens College – CUNY)

Jane Fae (writer and activist)

Roderick Ferguson (University of Minnesota)

Jill Filipovic (writer and blogger)

Rose Fox (editor and activist)

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

Sasha Garwood (University College, London)

Jen Jack Gieseking (Bowdoin College)

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

Deborah Gussman (Richard Stockton College of New Jersey)

Dr Sally Hines (University of Leeds)

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

Astrid Idlewild (editor, urban historian)

Sarah Hoem Iversen (Bergen University College, Norway)

Sarah Jaffe (columnist)

Roz Kaveney (author and critic)

Zahira Kelly (artist and writer)

Mikki Kendall (writer and occasional feminist)

Natacha Kennedy (Goldsmiths College, University of London)

Alison Kilkenny (journalist and activist)

Matthew Knip (Hunter College – CUNY)

Letícia Lanz (writer and psychoanalyst, Brazil)

April Lidinsky (Indiana University South Bend)

Erika Lin (George Mason University)

Marilee Lindemann (University of Maryland)

Heather Love (University of Pennsylvania)

Jessica W. Luther (writer and activist)

Jen Manion (Connecticut College)

Ruth McClelland-Nugent (Georgia Regents University Augusta)

Melissa McEwan (Editor-in-Chief, Shakesville)

Farah Mendlesohn (Anglia Ruskin University)

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

Lyndsey Moon (University of Roehampton and University of Warwick)

Surya Monro (University of Huddersfield)

Cheryl Morgan (publisher and blogger)

Kenne Mwikya (writer and activist, Nairobi)

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

Anne Ogborn (frightening sex change)

Sally Outen (performer and activist)

Ruth Pearce (University of Warwick)

Laurie Penny (journalist and activist)

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

Rachel Pollack (writer, Goddard College)

Claire Bond Potter (The New School for Public Engagement)

Nina Power (University of Roehampton)

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

Mark Rifkin (University of North Carolina – Greensboro)

Monica Roberts (Transgriot)

Dr. Judy Rohrer (Western Kentucky University)

Diana Salles (independent scholar)

Veronica Schanoes (Queens College – CUNY)

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

Donald M. Scott (Queens College – CUNY)

Lynne Segal (Birkbeck, University of London)

Julia Serano (author and activist)

Carrie D. Shanafelt (Grinnell College)

Rebekah Sheldon (Indiana University-Purdue University-Indianapolis)

Barbara Simerka (Queens College – CUNY)

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

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

Zoe Stavri (writer and activist)

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

Jemma Tosh (University of Chester)

Viviane V. (Federal University of Bahia, Brazil)

Catherynne M. Valente (author)

Jessica Valenti (author and columnist)

Genevieve Valentine (writer)

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

Thijs Witty (University of Amsterdam, Netherlands)

Groups:

Bishkek Feminist Collective SQ (Kyrgyzstan, Central Asia)

House of Najafgarh (Najafgarh, India)

House of Kola Bhagan (Kolkatta, India)

Transgender Nation San Francisco

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

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

“Sex by deception” and the shades of yes

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

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

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

Gender vs. Sex

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

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

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

Consent

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

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

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

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

Legal vs. Ethical

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

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

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

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

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

Shades of Yes

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

  • express,
  • deemed, or
  • implied consent.

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

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

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

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

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

Legal Exceptionalism

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

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

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

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

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

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

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

Ethical Questions

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

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

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

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

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

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

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

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

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

Open-Ended As It Should Be?

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

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

Facts about trans youth

[Updated to add this absolutely excellent TED Talk by Norman Spack:]

(Previously published in March 2012, and archived here for when it might be needed as reference)

Several in the Canadian media and the general public have become interested in trans youth.  It’s probably inevitable that many opinions and emotions have circulated as a result.  I’m concerned that some of the attention surrounding trans youth and kids is distorted by the (perhaps unintentional) omission of some important distinctions.

The medical profession has long recognized that gender dysphoria often first occurs in youth and childhood, and formalized this in the Diagnostic and Statistical Manual (DSM-III) in 1980 with a specific diagnosis for adolescents.  Treatment at that time often took the form of aversion-type therapies, but because these seemed to result in increased distress and self-harm (and not unusually transition in adulthood, anyway) it became necessary for that treatment to be rethought.  As years passed, it became increasingly obvious that when there is a strong gender identity issue, undergoing puberty to become a sex that one does not feel is appropriate to them can have a tremendous negative toll on a youth’s emotional well-being.  That puberty is also accompanied by major body changes, some of which could be impossible to overcome in adulthood, if that person inevitably transitions.

It’s important to recognize that the process for trans youth that I’m speaking of is not “sex change” and surgery.  This is often the conclusion that people jump to, but the reality is that newer treatments merely delay puberty until it is certain whether further changes like hormone therapy must be undertaken… typically after age 14.  German singer Kim Petras is thought to be the first youth to have undergone surgery at the age of 16, in 2009.  Since then, a youth in the U.K. has done so as well, and there was an unconfirmed rumour that someone in Europe had full GRS at age 14, but surgery at this age is very rare, if it occurs.    By the time this decision is made, a teen has typically had several years of living as their identified gender to determine if the decision is right for them.

Youth transition does not start simply because a child wants to crossdress on occasion or because they like dolls or trucks.  It happens when there is a strong and persistent identification that clearly indicates that there is something deeper than the usual experimentation phase which most kids go through.   If a child or youth exhibits a clear and persistent identification to express themselves as a gender contrary to their birth sex, in an obvious 24/7 manner, then arrangements are made to allow the child to live accordingly.  Although this social transition and accommodation in schools is gleaning much of the attention, the fact is that accommodation is really not a new phenomenon.

What is new is the use of puberty-delaying drugs, which is credited as having been pioneered by Dr. Norman Spack, at the Children’s Hospital Gender Management Services Clinic in Boston, in 2007.  If accommodation proves to be an appropriate way to alleviate emotional distress, parents and doctors might then consider pharmacologically delaying the effects of testosterone or estrogen which would otherwise typically trigger puberty.  Even at this stage, everything is reversible, in the event that a youth changes their mind.  It isn’t until hormone therapies are started that changes occur, and that generally happens after there has been much time to consider the consequences, and the youth is able to make a mature and informed decision.

This process is undertaken carefully, with a desire to approach things in a balanced way that neither encourages someone to follow a path if they don’t need to, nor waits until a self-destructive event occurs to prove necessity.  Even so, Dr. Spack states that nearly a quarter of his patients have already engaged in serious self-harm before coming to him.

As these stories break, it is sometimes alleged that parents and medical professionals are participating some kind of agenda which might influence youth to become trans.  Yet the objective of transition is to do what is necessary in order for a person to be at peace with themselves — sometimes that doesn’t include surgery, and doesn’t necessarily follow a specific formula, but is for the individual to determine.  Likewise, trans-inclusive equality and anti-bullying education does not “encourage” someone to become trans (unless they’ve already been experiencing a gender identity conflict in a persistent way).  Instead, it acknowledges in an age-appropriate way that trans people do exist, and are deserving of the same respect afforded to anyone else.  This is for the benefit of those trans youth who do exist — either openly or in hiding — and who need to know that they are not alone, nor are they “freaks” of some kind.

The same is typically true of parents and medical professionals, who usually don’t come to a decision to assist a child to transition very easily.  Parents and doctors who form a transitioning youth’s support network ARE very much thinking about the needs of the child when they make that wracking of a decision.

National Public Radio (NPR, a semi-public broadcaster in the U.S.) previously compared aversion and affirming practices.  People wanting to know more should read the contrasting accounts told in this piece.

(Crossposted to Rabble.ca)

Right-Wing Group Claims Trans Human Rights are a Plot to Normalize Pedophilia.

It has long been a practice of American far-right spokespeople and organizations that when sensationalistic rhetoric starts to fail, rather than try to polish it up and make it look more convincing, they often switch to something more sensationalistic and absurd, as a way of getting attention and scaring folks. The thinking seems to be that the public isn’t interested in anything beyond the tl;dr headline / soundbyte, so if something is said often enough and assertively enough, people will think it to be true.

Canadian far-right spokespeople and organizations are usually craftier, but when they aren’t, it’s revealing.  It demonstrates plainly just how much hate exists, just how irrational a form it can take, and just how impervious to logic and truth it can be.

And I can only guess that it is because of American far-right inspiration that Gwen Landolt of REAL Women of Canada has switched focus from bathroom fear to alleging that the trans human rights bill is really a NAMBLA plot to normalize pedophilia.

REAL’s own action alert insinuates:

Why, then, has this transgendered bill been placed before Parliament?

The answer appears to be that the bill is intended to be interpreted by the human rights tribunals and the courts in order to extend its reach to a number of other problematic sexual activities, including pedophilia.  That is, the broad definition of the expression, “gender identity”, included in this bill, will eventually have to be interpreted by the appointed human rights tribunal and courts to determine the meaning of these words.  This intention was confirmed by MP Randall Garrison, who introduced the bill, when he stated in the homosexual newspaper, Xtra (June 5, 2012), “Once gender identity is in the human rights code, the courts and human rights commissions will interpret what that means.”

Randall Garrison’s comment was actually made in reference to the controversial decision to drop “gender expression” from the bill, opening up concerns that only some trans people (i.e. those who medically transition) will be covered, as well as fears that failing to include gender expression could result in it being designated as separate and not covered, and of lower priority to policies based on physical sex.  For trans people, the latter could take the form of “I didn’t fire him because he’s trans, I fired him because our dress code says if he has a vagina, he’s supposed to wear a dress.”

In an interview with the equally radicalized LifeSiteNews, Landolt takes the insinuation further:

Landolt said that a movement already exists that is lobbying western governments to enshrine adult sexual activity with children as the next “sexual orientation”.

The North American Man/Boy Love Association (NAMBLA), a prominent pedophilia advocacy group, exists to “end the extreme oppression of men and boys in mutually consensual relationships”…

Landolt’s argument, unsurprisingly, stems from American far-right groups’ wide interpretation of “sexual orientation,” used to oppose the possible inclusion of that characteristic in human rights legislation.  This can be traced to a 2009 olympian feat of spin from the Traditional Values Coalition, (who curiously no longer host their own report on their own website), claiming that the thirty paraphilias included in the Diagnostic and Statistical Manual (DSM-IV) from the American Psychiatric Association (and which include things like pedophilia, voyeurism and necrophilia) can all be considered “sexual orientations.”

To be fair, NAMBLA has apparently also tried to argue this, themselves.  But this argument failed in 2009, both because it strained reason, and because it also failed to take into account important considerations like mature, informed consent.  It has also failed to materialize in the actual application of laws that already do include sexual orientation, like Canada’s human rights laws.

The way that REAL has tried to retool the “30 sexual orientations” argument has led some to assert that the organization and its figurehead are deliberately fearmongering.

REAL Women of Canada presents itself as “one of Canada’s leading women’s organizations,” but has for decades has been directly opposed to feminism and womens’ issues that they find theologically offensive, such as abortion, contraception, sex work, affirmative action and even unions (which have driven several of the gains that women have made in the workplace).  REAL  stands for “Realistic, Equal, Active, for Life,” and doesn’t discourage women from working (that’s not an economic possibility for many families, anyway), but has a mandate that allows it while still favouring homemaking and idealizing domesticity where possible (and don’t get me wrong, I respect women who are dedicated to their families: however, that is not the only place for women in society).

REAL is an NGO in special consultative status with the Economic and Social Council of the United Nations, and has regularly used this status to stymie international initiatives to better the lives of women, if those initiatives include reproductive rights, LGBT rights, feminist objectives and more.  They have acted as legal interveners on nearly every major social issue that has come before the high courts, including a 1993 attempt to prohibit abortion, the 1999 ruling that gave same-sex couples the same legal and economic rights as opposite-sex couples, the legal battle over whether spanking was child abuse, a court decision on whether safe injection sites could be legalized, a few different cases where they attempted to establish legal personhood for the foetus, and are currently acting as intervenors in the Supreme Court’s hearing on the sex work ruling from Ontario.  REAL Women of Canada feigns support for equality for women, while asserting that being a homemaker is a woman’s ideal calling, claiming that “the rights of men… have been marginalized while feminist special interest groups have taken center stage in Canadian policy,” and even supporting the abolition of divorce.  Because it’s easier for far right conservatives to oppose womens’ rights and needs when they can point to women who do the same.

Gwen Landolt is famous for apologizing to the world on Canada’s behalf when Canada legalized same-sex marriage.  Now, Ms. Landolt is attempting to retool the “30 sexual orientations” argument as a way of opposing extending human rights protections to trans people, in Bill C-279.

That bill does, by the way, provide a definition for gender identity:

2. (2)”In this section, “gender identity” means, in respect of an individual, the individual’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex that the individual was assigned at birth.”

Have fun twisting your brain into a pretzel trying to find a way in which that could be interpreted to include pedophilia.

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

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

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

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

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

Why “Born This Way” Is Not the Point

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

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

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

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

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

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

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

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

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

C-279 amendments made, in afternoon of impassioned speeches.

Update / Correction: The amendments were given a voice vote, but not actually passed.  Because there was visible opposition, it’s subject to recorded division, and the amendments will be voted on, on March 20th.

More twists and turns than a mangled slinky.

It’s official, the amendments to drop gender expression and define gender identity have been made.  To me, whatever happens, it will all be bittersweet.

The debate, however, was very good.  Keep the kleenex close by.  From Hansard, here are the highlights:

David Anderson brings up the obligatory “bathroom bill” panic:

One concern is that the bill is unsettling to people. The author has really refused to talk about or deal with the potential implications and consequences of such wide-ranging and undefined legislation. My constituents, I have to say, do not see this as benign legislation because of the things we just talked about, in particular the fact that there is such a lack of definitional framework to the bill. What I am getting from my riding is that the constituents oppose it, but they do have some questions that I will pose on their behalf.

The first question to the member opposite is this: does he actually believe that there is no one who will try to abuse the situation that would be created by his deliberately vague legislative agenda?

That is what the member seemed to be saying when he spoke, but he has refused to address this criticism in his speech. It remains out there in the public’s mind, and I have heard that from my constituents.

Second, especially with regard to minors and adults, my constituents have questions about the power relationship that would exist in what in the past were basically private facilities that would now become very public facilities. They are asking what their obligations and rights would be. The failure to address these issues is really why the bill has become known as the “bathroom bill”. I do not think we can just brush off people’s concerns.

Sean Casey chided him for it while touching on the key points:

So in the context of this debate, which has at times been a vigorous debate and at times a debate with moments unworthy of this House, there are some who, contrary to evidence and facts, choose another path to make their case. They choose fear and innuendo, all the while claiming a moral high ground. They claim for themselves exclusivity to that which is right and decent, using language that is hurtful and demeaning. How can anyone claim to be of good heart or claim the virtue of “love thy neighbour” yet reduce this bill to gutter language when they call it “the bathroom bill”? It is an entirely offensive and erroneous implication to suggest that transgendered people would be lurking late at night in bathrooms should this bill pass.

Megan Leslie gave an emotionally charged speech, and since I don’t see a video to post yet, I’ll include it all right here:

Mr. Speaker, I want to thank the member for Charlottetown for his speech. That was really incredible.

I am a trans rights activist. I have been working on the issue of transgender rights for many years in my community of Halifax, and I am an ally to the trans community. Years ago, when I was a law student, and then later when I was working at Dalhousie Legal Aid, I worked with NSRAP, the Nova Scotia Rainbow Action Project, and we developed a trans rights awareness program.

I had the opportunity to work with transgendered Nova Scotians to develop a presentation on trans rights. We actually presented to the Nova Scotia Human Rights Commission on the realities of being trans people, their experiences, day after day, within their communities, our communities, within their/our legal institutions and within their/our government institutions, because we do not realize, when we are cisgender, which is when our gender identity matches our biological sex, how often we get to take for granted our gender rights.

I had a transgender client who once asked me to write a letter on official legal aid letterhead that gave a legal opinion about her right to use the bathroom, based on case law. She would keep it in her purse and use it if she ran into problems. Imagine walking around with a legal document, a legal opinion, in one’s purse or wallet to settle disputes about the right to use a bathroom. Imagine the indignity of arguing this with mall security, with a bouncer, with classmates or co-workers, just to heed the call of nature. It could be at any time. It could be this afternoon. It could be tomorrow. It could be every day. It could be never. One just does not know when it is going to happen.

Imagine being pulled over by the police for speeding and answering questions about why the sex listed on one’s identification does not match one’s gender identity. Perhaps one’s birth name is called out at the doctor’s office, because one has to have sex reassignment surgery to change identification. Imagine what that would feel like. These small indignities happen every day to members of our community.

The bill does a small thing by adding trans rights to the Canadian Human Rights Act and by adding trans motivated hate to the hate crimes list. It is a small thing, but it is a magnificent thing.

I am pretty close to the trans advocate community at home, and we have had long discussions about the idea that adding trans rights to human rights legislation may not actually grant protections that members of the trans community do not already have. As we heard, there is ample case law to show that human rights commissions will fit trans rights into different categories that already exist. For example, when Nova Scotia Rainbow Action Project made our presentation to the Nova Scotia Human Rights Commission, it was strong and steadfast in its commitment to protecting trans rights and said that it would find a way to make it fit under another ground, but what ground? How do we protect the dignity of trans Canadians when we are asking them to fit their problem into the margins? How do we protect the dignity of trans people by making them look for their rights under another category, such as sex, when it is not about sex, or gender, when it is not about gender, or disability, when it is absolutely not a disability?

It is meaningful to look at rights and see ourselves there. It is important to know that we are protected, that we can hold up a human rights act and say, “I am protected. I am here in this document”.

Further to this argument, we heard evidence from the Canadian Human Rights Commission that fitting trans people into the margins now is not a guarantee that they will be fit into the margins in the future. Enshrining rights in legislation protects those rights, and trans Canadians need this protection.

The Canadian Police Association agrees. Today, president Tom Stamatakis spoke out in favour of this bill with a simple and beautiful statement that equality under the law is an important principle for Canada’s front-line police personnel to uphold. It is that simple.

My home province of Nova Scotia has had this debate in our legislature. I want to share a letter from Kate Shewan about how things have changed since this legislation was passed in our province.

I think we can learn from the Nova Scotia example, and I think we can learn from the members of our trans community who have had this experience.

She writes:

      I’m a board member of Nova Scotia Rainbow Action Project, an organization that advocates for the rights of the LGBT community. I’m also a trans-identified person. I’m writing to you in support of Bill C-279.
      As a member of the trans community in Nova Scotia, where provincially we’ve benefited from the changes to the human rights act, I’ve seen first hand how this change can benefit individuals within the trans community, a community which has suffered significant discrimination.
       The immediate change that I saw following the Nova Scotia legislation was a change in attitudes and a new confidence. Members of the trans community who had almost taken it for granted that they would be discriminated against in the employment market and other areas of society felt empowered and more confident, knowing with certainty that their rights were protected, and seeing that the challenges our community faces had been formally acknowledged. In a group that suffers significant unemployment, underemployment and disengagement from society in general, I believe this empowerment and confidence will help to give trans Canadians a better opportunity to reach their full potential, improve their employment and economic situations and become more engaged in the community.
      It is important that these protections are also in place at the federal level, so that all trans Canadians can benefit from these changes….
Today is International Women’s Day, and I heard a lot of statements in the House about how far women have come in our fight for equality. I heard a number of references today to the Persons Case, a court case that ruled that we, women, were persons under the law.
The result of that case probably did not do much for women that week. It probably did not change their day-to-day experience. It did not mean that the next day all of a sudden women got to sit at the tables of decision making. It did not mean that the next day they started working outside the home and were paid wages equal to men’s, and it did not mean that domestic violence ended.
However, not long after that, some women got the right to vote. A woman could look at that document and know that in the eyes of the law, she counted.
In the lead-up to today, I got a lot of calls and emails from my community telling me why they thought I should support this bill. Of course everybody knew that I would, but they sent me such interesting things that I wanted to share a couple of them.
I had one community member who contacted me to say:
      I’m trans, but have a good job, house, car, money in the bank…by all measure successful in most people’s eyes. (Not to boast) just trying to show that we are like most other people, just are part of a gender spectrum that is finally being recognized.

I also want to share a letter I received from the sexual orientation and gender identity division of the Canadian Bar Association. I was a member of that group when I was a law student. This is from the chair of the equality committee and the co-chairs of the sexual orientation and gender identity community. Here is just a shout-out to Amy Sakalauskas and Level Chan who are actually from Nova Scotia. I was happy that they have taken up this issue. They wrote:

      Transgender Canadians are a minority who suffer profound discrimination, such as job losses, alienation from their communities, ridicule, harassment and inadequate health care services. They also disproportionately fall victim to hate crimes, including homicide.

They go on. It is these kinds of examples that make us realize we have to do something about this.The bathroom panic argument just does not wash. We have laws against peeping Toms. It is an illegal act. That argument does not wash here.An argument that does wash here is that recently I was at a community event and a young person came up to me. I do not really remember it. I do not remember if this person was a young man or a young woman, blond or brunette, but this person came up to me, took my hand and opened it, put something in my hand and closed it up. Then they left.I opened my hand and there was a tiny little note. It said:

      Thanks for giving…[an eff] about trans people.

I think that is why we are here.

Michelle Rempel also gave an emotionally-charged speech.  As things were proceeding, folks on Twitter and news feeds were arguing over whether her words meant that she is or isn’t going to support the bill.  But in fact, it’s still not entirely clear.  Again, her comments are included here in full:

Mr. Speaker, I speak today to Bill C-279. I would like to thank the member for Halifax for some of her comments here today.

I have had the privilege of representing constituents in Calgary Centre North for nearly two years now. In this time, I have had the opportunity to review many pieces of legislation and debate both their merits and their flaws. As I have done so, I have been struck that oftentimes, we have to evaluate two components of legislation: the why of the bill and the how of the issue. Many times we disagree, sometimes vociferously, about the why. We have differing political ideology, thoughts on how public policy should be best utilized and thoughts on how this country should be governed. It is in this context that I first speak to the why of this bill.

After reading testimony from witnesses during this iteration of the bill and in the last Parliament, and after consulting with those who work with members of the trans community and members of the community itself, I am frankly shocked by the discrimination this group of people faces.

The member for Esquimalt—Juan de Fuca and witnesses to this bill at committee, and indeed members here today, have given this House so many examples that I cannot reiterate them. Suffice it to say that I would offer that the summary of evidence could read as follows: the trans community in Canada has, on frequent occasions, experienced elevated levels of sexual violence committed against members; frequent workplace discrimination and job loss based on gender; lack of clarity on health care provisions and sometimes access to health care; lack of clarity on processes related to obtaining identification documents; bullying in places of employment and educational institutions; discrimination in accessing housing accommodation; and numerous other incidents of discrimination.

Most importantly, they live with the consequences of these acts of non-compassion, of false assumptions that, simply by virtue of their state, they are sexually promiscuous, or more ludicrously, that they are criminal. In this, the trans community experiences very high levels of both depression and suicide. This is not acceptable to me, and this is the why of this bill. It is my hope that no one in the House, either on this side or the other side, could read the testimony, could talk to people in the community, and argue that this is acceptable or tolerable in our country.

The question set upon us as legislators is the how. How do we prevent these situations from occurring?

I have spent a lot of time on the how. I found that this bill seeks to address the how by addressing the following assumption, using the language of the member for Esquimalt—Juan de Fuca during the bill review at the Standing Committee on Justice, that “transgendered Canadians do not enjoy the same protection of their rights as other Canadians”.

This is a very serious charge that is worthy of study, as the ideas and values that are the heart of how our country operates, the freedoms it affords to all groups to worship without persecution, to seek prosperity in one’s field of work, to choose whom we love, and to speak with conviction on issues that impact our communities, are all based on the assumption that Canadians have equality of rights in freedom of expression and can do so without the threat of discrimination or violence to their person. However, to assess whether this bill provides an adequate how, I first evaluated the validity of this assumption.

The member for Esquimalt—Juan de Fuca had an exchange with the member for Edmonton—St. Albert at justice committee about this assumption. The member for Edmonton—St. Albert said:

      Except now that the Canada tribunal has emphatically stated that there is no longer any doubt, I would suggest to you that your first hurdle has been cleared by precedent… There is now case law that supports the proposition that individuals who have a genuine gender identity disorder are entitled to human rights protection.

There have been numerous examples given in the House and at committee of case law that shows that this provision exists. I understand the member for Halifax when she says that she wants to see herself in that human rights bill. The case law does exist to show that it is there.

Mr. Ian Fine, the acting secretary of the human rights commission, stated the following, “the commission, the tribunal, and the courts view gender identity and gender expression as protected by the Canadian Human Rights Act”. Having said that, he also stated that “adding the grounds of gender identity and gender expression to the [Canadian Human Rights Act] would make the protection” of the transgender community explicit. The rationale that he stated for this necessity was as follows: “This would promote acceptance and send a message that everyone in Canada has the right to be treated with equality, dignity, and respect”. I do not disagree with the latter part of that statement. It gave me quite a bit of pause for thought, and that has been at the heart of my deliberations on the bill.

It could be argued that this is contradictory in some regard. Mr. Fine previously made a statement that the tribunal, the commission and the courts do view gender identity and expression as protected by the Canadian Human Rights Act, and that somehow even though this protection exists, it does not send enough of a message to Canadians on this issue. While this contradiction may be well intentioned, I feel there are many examples where serious issues arise when legislators equate symbolism with social action or when we inadvertently dilute the role of social activists by being reactive to an issue with legislative symbolism.

The member for Halifax has my playbook because she stole my speech on International Women’s Rights Day. I would like to speak on the social action process for the struggle for female gender equality.

Even after laws were passed to enshrine women’s gender equality within our laws, the member is right; we did not see those changes happen overnight. In fact, lawsuits still had to be fought and won, offenders had to be charged, battles had to be waged to change workplace codes of conduct, and awareness training programs had to be crafted. I would like to highlight that in the British parliament, even after women had been elected, as little time ago as 1993, a woman in this place did not make it to a vote because she could not find a bathroom.

I have also stood in the House to highlight that sexism does happen with frequency in this country in spite of these laws. I am not trying to imply that the struggle for trans rights is directly concurrent with the struggle for women’s rights, but in my deliberations on the bill, I found there is a burden of evidence which suggests that case law does exist to provide the trans community with protection under the law against discrimination and violence. Here is my concern. In this fact, the how of this legislation may not achieve the ultimate solution to the why, in that it may place too much of an emphasis on symbolism over direct social action.

As always, the member for Halifax makes a very compelling argument.

A question that I have struggled with in evaluating the validity of the bill is what guidance we, as legislators, are truly giving judicial organizations in how to carry out the intentions of Parliament in this regard. The way the term “gender identity” is defined in the preamble of the bill, even with the amendments, played a large part in my decision to vote to study the bill further. I am still not entirely clear on how parliamentarians, the human rights tribunal, criminal courts, sentencing judges and the broader community at large will be required to interpret this term.

I am also not clear on the following key issues. What constitutes the scope of discrimination against someone based on his or her gender identity in the eyes of my colleagues, as legislators, of members of the trans community and the courts? What kind of speech based on someone’s gender identity could be considered hate propaganda? What does it mean in defined terms to have a bias based on a person’s deeply held internal and individual experience of gender?

Admittedly, the evaluation of this legislation has been very difficult for me because I believe that the why it presents is concerning. Any time we as parliamentarians are faced with clear situations where fear of differences or lack of awareness allow hatred to mushroom, we have to take note and ask ourselves what role we play in breaking down these barriers. This legislation has opened my eyes to the plight of a group of people in this country who experience extreme discrimination. Both sides of this debate should agree that equality and protection against harm are two fundamental values that all Canadians of any gender, any age, any background are entitled to.

However, as legislators we are also tasked with deciding if the proposed legislation is sound. Given the lack of clarity that I found in the bill, I do have concern about its viability and if the how will achieve what the community and Canadians hope for in addressing the why.

Raymond Côté (after relating some personal experiences) presented the theological case for — yes, for — the bill:

All of my colleagues in the House will agree that human dignity is non-negotiable. It is very simple. I would even add that the sanctity of human life is something we value so highly—at least we should—that we cannot put a price on defending it. We must never tolerate pettiness or compromise.

I have spoken about my faith before, and I want to share some of the Catholic Church’s social doctrine. It very clearly states that every human being has the unalienable right to exist and to have dignity within society. That represents a tremendous challenge, because it means that we must allow the right to be different, the right to a certain degree of dissidence, the right to go against the established norm and the right to go against the stream.

This also means that people like me, who have the privilege to have a favourable—even comfortable—place in society, must make concessions. I am very pleased to be able to reach out to a group in our society whose rights are too easily violated and to offer them some progress. It may not be perfect, but it is still progress.

Jinny Jogindera Sims concluded the debate by again evoking the struggle for women to be recognized as persons under law:

My colleague articulated beautifully the struggle that women have had. When we look at history, it was not that long ago that women were not recognized as persons. I challenge anyone in the room to think that we could be sitting in the House as women representing our ridings if that legislation had not been enacted and we had not been recognized as persons. That did not automatically get rid of all the discrimination and all the barriers and glass ceilings that exist. However, what it did do was to open up a pathway, and it took away the greatest barrier, which was to not be recognized at all.

This bill, in turn, would do exactly that. It says to the members of our transgendered community that they are part of this society and they are explicit in our human rights code. They do not have to hide, nor do they have to go looking to see which corner of the human rights code they fit in, nor do they have to see if there is a judge who is going to be favouring looking for a spot or fear a day when the judiciary could turn around and say it is not explicit and cannot be found in here, so they are not covered. It is to avoid that very situation that we have to have legislation like this.

… I do not know if members are aware, but I was a classroom teacher for a very long time. In that role, one of the things I discovered very early on in my teaching is that for children to be successful in life, they have to see themselves reflected, but they also have to feel themselves protected. When we have transgender young people in our community who do not feel protected explicitly in our law, we leave them vulnerable.

… It would be fitting if we could all vote for this measure unanimously, especially when we are on the eve of International Women’s Day. We would celebrate the fact that we have enshrined those rights into our legislation and into human rights.

Following this, the amendments were given a voice vote and accepted into the bill, and the Speaker announced that proceedings will resume on March 20th:

Normally, at this time the House would proceed to the taking of the deferred recorded divisions at the report stage of the bill. However, pursuant to standing Order 98, the divisions stand deferred until Wednesday, March 20, immediately before the time provided for private member’s business.

Previous records or notes:

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