Defining human rights.
Next week or in the week following, Canada’s Parliamentary Standing Committee on Justice and Human Rights (JUST) will be reviewing the trans human rights Bill C-279, to approve or amend it before deciding whether to forward it on to Third Reading.
Following federal Member of Parliament Rob Anders’ disastrous attempt to lobby Canadians against the bill by conflating trans people with sexual predators, Conservative MPs have appear to have become more careful about their approach to opposing the bill. Brent Rathgeber recently blogged that “These are complicated and sensitive matters and my opposition to this Bill is based entirely upon legal analysis, not on any particular bias.”
Like I said, more careful. His main point:
The flaw in Bill C-279 is that the terms “gender identity” and “gender expression” are not defined.
The “undefined” argument was used in the previous attempt to pass human rights inclusion for trans people. That bill passed, but died awaiting review by the Senate when 2011 last federal election was called. At that time, the lack-of-clarity argument was paired with the idea that explicit inclusion was unnecessary (something that Rathgeber touches on also), based on the fact that most legal precedents have tended to support transsexual people, and that Canadian human rights commissions consider us to be a subcategory of sex and/or gender. But precedents can be overturned if there are enough people with a will to do so. The bathroom fearmongering put forward by Anders and a few other MPs, along with far-right leaders such as Charles McVety and Jim Hughes, demonstrates clearly that such a will exists, and it is rather intense. In light of the persistent will of powerful people to work actively against trans inclusion, “unnecessary” has become an unbelievable argument.
So Rathgeber is focusing on complaining that the terms “gender identity” and “gender expression” are undefined. Never mind that he more or less defined them in his own blog post without a problem. Never mind that none of the other terms in human rights legislation are defined. Never mind that human rights classes are by intention open-ended, and meant to apply to people on all sides of the equation. Never mind that one of them (“gender identity”) has been in use in medical arenas since the late 1960s and in legal ones since the 1980s, and that the other is relatively self-explanatory. Never mind that once you start defining terms specifically, you risk carving out areas where people can fall through the cracks in a way that excludes people from human rights protections (which defeats the whole purpose of all people being considered equal).
Because you wouldn’t want the right to live, be employed, access services and be free from discrimination to be given to just anybody.
We don’t define classes to exclude. We wouldn’t, for example, define disability in a way that excludes psychiatric conditions, under the pretext that doing so would be scary. And in return, including those in human rights law does not confer a get-out-of-jail-free card if an individual commits an illegal act — although it might be taken into consideration when the court hears the context of a particular case.
Even more telling is Rathgeber’s next jump, to say that the terms shouldn’t be included in legislation because they’re chosen traits, rather than inborn. He doesn’t use that phraseology, though, because the public is starting to realize that there is much more of an inherent nature to gender identity (and sexual orientation, for that matter) than people who are fundamentally opposed to the existence of trans people would like to admit. No, he uses the argument that gender identity and gender expression are not “ascriptive” (i.e. inborn, not earned, not chosen) traits, and that protecting chosen traits somehow violates the spirit of human rights legislation. Then he shoots his own argument down in the next breath (emphasis mine):
But a more philosophical objection to the Bill is the attempt to expand “Human Rights Code” Protection beyond the traditional ascriptive criteria. Generally, the Code’s aim is to protect characteristics that are ascriptive rather than chosen. These are matters defined by birth and/or over which one has no control: race, national or ethnic origin, colour, age, sex, sexual orientation and disability all fall neatly into the category of ascriptive criteria. Admittedly, “religion, marital status, family status and pardoned conviction” are tricky because one does have considerable control over all of these matters…
I’m not big on the “born this way” argument. I think that people should be judged by what we do rather than what we are or are seen to be. But I do know that I didn’t just wake up one morning and decide that risking alienating my friends, family, job, anonymity and ability to travel with ease in society would be a fun thing to do. I spent most of my life hiding and fighting who I was, and then finally accepted myself as a woman. The only aspect of that struggle that I had any significant degree of control over was in deciding the moment that I stopped fighting it, and whether that end-to-struggle came in the form of transition or emotional collapse. In terms of “gender identity,” painting transsexuality as “choice” is something that doesn’t ring true to the experiences of transsexed individuals.
But that’s besides the point. The basic principle of human rights is that people should not be unduly judged by who they are, but rather on their individual merits or faults. That is why we do include descriptive criteria such as religion, family status and pardoned conviction. Indeed, individuals’ actions would appear to be the dividing line between pardoned conviction and any conviction, and shed light on why we would make such a distinction. Even if gender expression is a choice, mere expression is still a problematic basis for casting judgement on a person, and reveals nothing conclusive about an individual’s actions or behaviour.
The fear of including trans people in human rights legislation is often rooted in a fear of rights conflicting with rights. Very often, the examples given can be boiled down to a false equivalence — of one’s right to live, work or access services infringing on another’s right to deny them exactly that. But on occasion, rights do genuinely conflict, and Canadian human rights legislation already provides a mechanism by which conflicting rights are balanced. Rights are granted up to the limit of undue hardship. This has allowed courts to consider cases in context, considering the balanced needs of both parties, and addressing when there is an actual harm.
There is a case that was recently filed with the Ontario Human Rights Commission after a woman was denied a haircut by a Toronto barber shop because of her gender. The stylists explained that their faith forbids them from cutting a woman’s hair (unless she’s a spouse). This is a genuine conflict of rights, and at that point needs to be assessed for context, to determine which party is potentially faced with the greater harm (and if there are other remedies available, which is one of the strengths of a human rights commission). It’s important that the legal system be able to take that context into account, rather than to try to pre-emptively define classes in a way that creates a rigid hierarchy of rights. Terms in law may be defined, but classes in human rights legislation are typically left open-ended and non-specific deliberately, so that the courts can take context into account.
Rathgeber’s choice of terminology in his argument is interesting, though. Usually, when I hear opposition to trans human rights protections, I can point to where those arguments have been made before, where they failed, and what the intent was behind those arguments. Rathgeber’s argument is unique in that respect. Almost.
The only person who typically uses “ascriptive vs. descriptive” terminology to invalidate trans people on any kind of regular basis is Paul McHugh, a former Director of Psychology at the Johns Hopkins Medical Center, in Maryland. McHugh’s expertise has been neuropsychology, the study of neurological factors affecting behaviour. McHugh doesn’t appear to have had any background on trans patients prior to closing the Johns Hopkins gender clinic in 1979, and essentially admits in his article, “Psychiatric Misadventures,” that he accepted his post at Johns Hopkins partly so he could close that clinic, due to McHugh’s own pre-existing biases, assumptions (which he then proceeds to expound upon) and moral indignation at its existence.
McHugh also made the same argument in the court case spawned by California’s Proposition 8, against same-sex marriage. He also elaborated this to say that because no consistent definition of sexual orientation exists, it is also too scary a concept to justify the extension of human rights protections to gays and lesbians. So it’s probably noteworthy that Rathgeber includes sexual orientation in his list of ascriptive criteria. As a society, Canada has come to clearly recognize that there is more to sexual orientation than whim. All indications are that the nation is doing the same regarding trans people, and that the “ascriptive vs. descriptive” argument is simply an outmoded way of thinking — but one that even a conscientious legislator might still at times see as justification for denying human rights inclusion. Again, the fact that such a denial might occur demonstrates the necessity of explicit human rights inclusion.
As carefully reasoned as the argument may appear to be, it falls apart at several points.
In fact, the whole fear of vagueness is reminiscent of far-right groups who fret that the existence of trans people might redefine gender. Yet trans people exist nonetheless. It’s all again reminiscent of the same-sex marriage battle, which happened here and is still taking place south of our border. Those arguments were that marriage might be redefined if we let gay men and lesbians do it, and yet it was never adequately explained how doing so might damage or implode the institution of marriage.
But what is notable is that Brent Rathgeber is a member of the Standing Committee on Justice and Human Rights (JUST), which will be hearing and amending the bill. He and Stephen Woodworth were the “no” votes when JUST heard the same bill in the previous session of Parliament, although the bill did pass through JUST and Parliament without changes.
I don’t know what Mr. Rathgeber’s motives are in writing his editorial, and I don’t want to project assumptions on him. But it is disappointing that someone who should have a deeper understanding of the bill would still not be able to better explain why he considers it scary or dangerous. Being careful apparently doesn’t help one clearly make one’s point.
That’s why it’s refreshing in contrast, when people who are clearly transphobic, using terms like “deviant behaviour” and “sexually confused” without reservation, still openly acknowledge what the bill will do, and explain why it frightens them. From a June 5th press release from REAL Women of Canada:
“Please ASAP fax, email or phone your MP to ask that he or she oppose Bill C-279, with or without amendments. The major effect of this bill is that transgendered, transsexual and sexually confused individuals will be given full protection re employment, services, housing, etc in public institutions under federal jurisdiction. These behaviors will be “normalized”, accepted and protected…”
The fear is that with explicit protections, trans people might eventually become overtly accepted in Canadian society, and integrate into the social fabric. Because you wouldn’t want the ability to live, be employed, access services and be free from discrimination to be given to just anybody.
REAL does understand that much at least, and considers that a scary concept.
So what consequences frighten Mr. Rathgeber?
(Crossposted to Rabble.ca)