The Conscience Chronicles

UPDATE: As this was being readied for posting, the Standing Committee on Private Bills and Private Members’ Public Bills voted to recommend that Bill 207 not move forward in its current form, meaning that the bill will not be proceeding to the floor. I have elected to post this anyway, given the possibility that the proposal might be resurrected and amended at a later date.

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At a first casual glance, the stated premise of Alberta’s Bill 207, Conscience Rights (Health Care Providers) Protection Act, might sound reasonable: most people wouldn’t expect medical professionals who object to procedures like abortion to be required to perform them.

In practice, Alberta’s College of Physicians and Surgeons already allows medical professionals to opt out of medical procedures that they have a religious objection to (a status quo that is at times problematic), so long as they provide any referral or direction to comprehensive information needed, ensuring that their patient still receives care in a timely manner. Bill 207 removes the obligation to refer and / or ensure patient care — using the reasoning that providing a referral is sort of like participating in the procedure. Regardless of any urgency or medical appropriateness of care in any given situation, this change allows refusals to increase the time delay to accessing care (regardless of any urgency), put the burden of medical care back on the patient, and be a kind of barrier and discouragement, if not more. Indeed, it can be like making someone start over from scratch. Proponents of the bill say that because medical care is still available elsewhere, it isn’t really being denied, which is technically true… but the time, emotional and informational barriers cannot be discounted.

But while those advancing the bill claim it is only codifying that status quo in law, there are more things that Bill 207 does, many of which have received little attention by media.

The bill extends conscience rights to health care organizations, as well. While religious care organizations have already asserted conscience objections in many ways already, this codifies it in law. It also allows organizations to assert their conscience-based decisions over those of their facilities, staff and resources. By way of example, Covenant Health (Canada’s largest Catholic health care provider) owns 16 health care facilities throughout the province, including two major hospitals in Edmonton; its affiliate Covenant Care owns another seven assisted living and long-term care facilities. In some rural areas of Alberta, all or most facilities are religious-owned.

In short, this moves Alberta down a landscape in which anyone in the chain of service provision — from facility administration to lab technician and pharmacist — can create a roadblock to services, without consequence. This becomes even more concerning when one realizes the potential for administrative staff, clergy or even outside groups to apply pressure to doctors and clinics to deny services that they might not otherwise have initially had objections to.

In fact, by the text of the law, it is left entirely up to the health care provider or religious health care organization to determine if their conscientious beliefs would be infringed, and there really is no appeal process to see if there is some agreeable compromise. No record is kept, leaving no way to follow up to ascertain if the patient has ever received the care they needed or sought. Gathering statistics about patients denied care in order to inspect what consequences the law has had becomes impossible, as demonstrated elsewhere.

By the text of the law, if a regulatory body receives a complaint about denial of care having to do with conscience, the complaint must be discarded (there is a caveat that complaints or portions thereof that are not conscience-related are not discarded). They are not allowed to investigate or question the decision:

5(1)  On receiving a complaint in accordance with section 55(1) of the Health Professions Act, the subject matter of which is a health care provider’s decision not to provide a health care service based on their conscientious beliefs, the complaints director for the regulatory body that received the complaint must immediately

(a) dismiss the complaint, and

(b) provide notice of the dismissal to the complainant.

It also specifies that by law, “a health care provider’s decision to not provide a health care service based on their conscientious beliefs is not to be considered as unprofessional conduct,” and providers and / or organizations are immediately shielded from legal liability.

There is also an amendment to Section 7(1) of the Alberta Human Rights Act, to immediately shield any employee from termination or discrimination based on their conscientious beliefs. This amendment is not restricted in any way to the medical profession, and could conceivably provide a shield for harassment and abuse of one’s co-workers or customers because of one’s religious or conscientious beliefs.

The bill’s proponent, MLA Dan Williams, has promised a number of amendments to Bill 207, but in those proposed changes, none of these points is substantively changed. One of his proposals — to restore a duty to assist “if not providing the health care service would result in an imminent risk of death” — isn’t altogether reassuring about the thought that was put into the bill in the first place… but even with that change, there is no clarification on whether or how the legal shield and barriers to reporting and investigation might be changed in the event of a patient’s death (especially in cases in which it was not thought that there would be an “imminent risk”).

There are many hypothetical situations that one can suggest could arise as a result of this legislation. But this is not uncharted territory. It is very easy to look at places where “conscience” exemptions have been implemented or attempted — or where medical personnel or organizations have attempted to assert their conscience rights — and see how it has affected medical care for patients.

“I was nervous and excited about the consult for my first intrauterine device (IUD) at MedStar Georgetown University Hospital. After a brief conversation, Dr. Case (a pseudonym) asked me to get off the exam table and follow her to her office for a ‘chat.’ But in her office, when the door was safely shut, my excitement slowly started to fade. ‘Well, first things first, this is a Catholic hospital,’ she said in a mock whisper…”

Evann Normandin, writing at Rewire this past May, described what happened to her when hospital policy prevented her from getting an IUD. She left with a referral… and shaming. Although referrals don’t come with the added expense of multiple visits in Alberta, like south of the border, the expense of time and transportation remain, and can pale in comparison to the emotional cost of the refusal itself:

“… On my way out of the labyrinthian building, I scrunched up the unofficial paper in my hand. The ripped edges felt sharp against my skin. In the Uber ride home, after paying transportation to and from my apartment to a world-class hospital and forking over a $50 copay for unsolicited advice about my vagina, I cried…”

At Huffington Post, Ace Ratcliff described her fight with doctors over her need for a hysterectomy:

“My illness’ severity [hypermobile Ehlers-Danlos syndrome] led me to the conclusion early on that childbirth would irreparably damage my already broken body and would never be the right choice for me. My joints dislocate painfully and at random. I have difficulty swallowing food. I bruise like an overripe peach. I faint if I have to stand for too long. Wounds take much longer to heal on me than on a normal human.

“… Somehow, my personal autonomy, my health and my comfort didn’t rate high enough to outrank the desires of my future, then-nonexistent partner. And nothing I said could change my doctors’ minds [about a surgical hysterectomy], not the stories about my frequently dislocating hips, my mom’s complicated pregnancies or the increased rate of miscarriage and preterm labor for EDS patients…”

In another instance, the hospital’s policies would have allowed the removal of a dislodged IUD, but the doctor thought the policies wouldn’t, and refused care. The patient was sent home, limited in her options by her insurance company (not applicable in Alberta, but limits on options can occur because of other factors, such as rural accessibility), and she ultimately had to file suit:

“Her doctor confirmed the IUD was dislodged and had to be removed. But the doctor said she would be unable to remove the IUD, citing Catholic restrictions followed by Mercy Hospital and Medical Center and providers within its system.

“… It felt heartbreaking,” Jones told Rewire. “It felt like they were telling me that I had done something wrong, that I had made a mistake and therefore they were not going to help me; that they stigmatized me, saying that I was doing something wrong, when I’m not doing anything wrong. I’m doing something that’s well within my legal rights…”

Something that Bill 207 does not address at all is any duty of physicians to discuss every option available to a patient. If referring is equated to participating in an objected-to procedure or medication, then one might tacitly assume that providing comprehensive information on that procedure or medication can be denied. Withholding medical information can have serious consequences:

“… a woman was traveling across the Midwest when she developed abdominal pain. She and her husband went to the nearest hospital, where she was diagnosed with a potentially fatal ectopic pregnancy. The doctors recommended immediate surgery to remove the fallopian tube containing the misplaced embryo, a procedure that would reduce by half her future chances of conceiving a child. They failed to mention that a simple injection of Methotrexate could solve the problem, leaving her fertility intact. (In fact, at a secular hospital she found on her smart phone, it subsequently did.) Why the omission? The Catholic hospital where she got diagnosed was subject to the “Ethical and Religious Directives” of the Catholic bishops, which state, “In case of extrauterine pregnancy, no intervention is morally licit which constitutes a direct abortion…'”

In fact, denial of comprehensive information is a recurring issue when medical conscience exemptions are asserted.

Of course, some of these examples focus on the emotional impact, but that doesn’t mean that there aren’t serious physical consequences potentially at stake:

“After about 10 hours, the patient’s temperature soared to 102 or 103 degrees, Ralph recalled in an interview with Rewire in June, a few months after the incident. Ralph and her team gave the patient medication to induce labor. But Ralph could not administer mifepristone, which the American College of Obstetricians and Gynecologists (ACOG) considers part of the most effective drug regimen for such cases. The Catholic hospital didn’t carry the drug, which is commonly used for medication abortions—a failure Ralph believes was religiously motivated and needlessly prolonged her patient’s labor.

“… For more than 24 hours, the patient labored through painful contractions. She bled heavily, requiring at least one blood transfusion. Her lips and face lost their color. Finally, she delivered a fetus that had no hope of survival…”

The full extent of Bill 207’s reach isn’t understood either, until you realize that “medical provider” covers a wide range, as noted in an Edmonton Journal editorial:

“The list is long and includes emergency, primary and critical care paramedics; midwives, chiropractors, podiatrists, psychologists and psychiatrists; lab, respiratory, ultrasound and X-ray technologists; pharmacists, physiotherapists and physical therapists; opticians and optometrists; dieticians and nutritionists; anesthesiologists, surgeons, and social workers; audiologists, dental professionals and speech-language pathologists…”

The inclusion of pharmacists in that list raises the question about access to birth control, an issue that has already surfaced in Alberta and elsewhere in Canada:

“Joan Chand’oiseau of Calgary recently posted a photo on Facebook of a sign on her physician’s office door that read, ‘Please be informed that the physician on duty today will not prescribe the birth control pill…’”

It also raises questions about access to hormone therapy for trans patients, or the possibility of throwing in a bit of public humiliation for good measure:

“‘Sir, we canceled your prescription because we couldn’t figure out why a man would need female hormones,’ said the voice. ‘You’ll have to have your doctor call us to confirm this is correct because it doesn’t make any sense…'”

Indeed, trans health is just as likely to be impacted as reproductive health, and doesn’t even have to be about transition-related medical concerns. Trans people regularly report what they’ve nicknamed ‘Trans Broken Arm Syndrome‘ — that is, the refusal of care for basic health services just because they’re trans. And it does indeed happen in Canada:

“According to the College of Physicians and Surgeons of Saskatchewan’s charge of unprofessional conduct and the penalty presentation, the incident took place on Jan. 5, 2016, when Anderson saw a patient for “reasons related to bronchitis” — something completely unrelated to the patient’s transition to male from female.”According to the documents, the disciplinary hearing committee found it ‘probable’ that Anderson ‘launched into an unsolicited running commentary’ regarding transitioning. Anderson made statements ‘which were insensitive and unrelated to the reasons for which the patient requested your medical services,’ according to the charges against Anderson…”

It should also be asked what conscience protections might do to protect the still-persistent practices of reparative therapy in Alberta (albeit with coded language). But that aside, denial of basic care is something that all LGBTQ+ people have had to worry about, sometimes even with lethal effect in situations that didn’t initially seem to pose an “imminent risk”:

“Refusing to treat patients can be be deadly, as was the case in 1995, when Tyra Hunter, a transgender woman, lost her life after emergency medical technicians refused to assist her at the scene of a car accident. According to the Center for American Progress, had Hunter received care, her chances of surviving were 86 percent — she should have lived…”

Medical assistance in dying is another area in which medical access is an issue, and in this instance, access is even more seriously limited. It is estimated that the aforementioned Covenant Health (and affiliates) oversee up to 90% of the long-term care beds in parts of Alberta, and regardless of whether long-term care patients are healthy enough to be moved, doing so is sometimes necessary just have questions answered, because of facility policies:

“Covenant Health stated in May of 2016 that it has an ‘ethical and moral opposition to medical assistance in dying’ and that the organization’s ‘unequivocal position to not provide or explicitly refer’ must be recognized. Functionally, this means that any assessment of capacity, any answering of technical questions, and the act of assistance in dying itself would require a transfer away from a Covenant facility.

“… The case of Ian Shearer, an 84-year-old Calgary man living in Vancouver with palliative heart and kidney disease and severe chronic pain, brought attention to how transfers can do harm. Shearer was denied a request for medical assistance in dying from St. Paul’s Hospital, a Catholic facility near where he lived and where he’d been admitted for care. On the day he chose to die, his ambulance was delayed three hours and his medications were withheld to allow him to confirm consent. The ordeal, last August, was described by his daughter as ‘unnecessary… excruciating suffering…'”

Obviously, the out-of-province and out-of-country examples won’t exactly mirror what would happen in Alberta, because of circumstantial differences in things like medical coverage, but what this demonstrates is the extent to which individuals might be willing to abuse a conscience protection, and the twists of logic involved. From the firing of doctors for not adhering to an organization’s conscience policies, to the chilling effect on medical care caused by activism from anti-abortion groups against clinics just for hiring doctors who’ve performed abortions elsewhere in the past, to medical residents who openly vowed to give the wrong medications to specific groups of people, to some some truly backwards beliefs about medical interventions…

“Throughout the conference’s diverse and highly academic presentations, one discernible theme emerged, namely, that “brain death” has been invented to harvest viable organs from still-living people. Only when a person’s heart stops beating and their breathing ceases for a determinate amount of time can it be said that death has truly occurred…”

… the politics surrounding medical conscience exemptions raises a broad range of concerns.

It is likely that Alberta’s Bill 207 would not survive a legal challenge. Indeed, the same day that the bill was introduced in the Alberta Legislature, a similar policy was overturned in the U.S. Likewise, a ruling in Ontario last May affirmed patients’ rights to referrals when care is denied.

But getting there could be another long, legally costly process, with very real human collateral damage caused along the way.

Photo: Adobe Stock

(crossposted to rabble.ca)

The Alberta Advantage was Dependence

In the end, the “Alberta Advantage” was dependence.

And in retrospect, undoing that dependence on the oil industry — a mixture of real and perceived — needed to be the number one priority of the Notley NDP government. When Albertans (even to their own surprise) overthrew the 40-year Progressive Conservative dynasty in 2015, they were hungry for change, and they knew that change was both inevitable and urgent, given the realities of global climate change — something they had been increasingly experiencing (most notably when the third “one-in-a-hundred-year flood” in ten years ate High River and parts of downtown Calgary).

Instead, industry managed to keep the focus on oil development and pipelines, and sucked all of the rest of the political and economic air out of the room.

Of course, Alberta’s energy sector is well-versed in fostering and using the dependence on its jobs and products — whether manipulating gas prices, making punitive and excessive layoffs whenever an administration or policy it doesn’t like is in place, or dangling illusionary carrots, like job creation estimates that factor in a hundredfold of jobs that they imagine might be generated by their project (and which nobody ever follows up on to debunk). In reality, building a pipeline creates merely a small number of regionally-shifting jobs aimed at transporting the longer-term refining jobs out-of-country, but nobody really ever remarks on that, because of how overwhelmed with industry propaganda Albertans are, and their eagerness for what little crumbs industry is willing to toss their way.

Now, the rest of Canada might not be overly sympathetic to Alberta’s plight, right now, because the province has had a pretty good run, riding waves of oil prices over the past few decades to sustained prosperity, while labour markets elsewhere have dwindled, automated, and relocated to other countries. Consequently, Alberta may feel the coming change more acutely than the rest of Canada — but feel it everyone will.

Change is hard. It’s disruptive. And with the level of budgetary dependence on energy royalties and the perceived dependence (thanks to the hard work of neoliberal institutions like the Fraser, CAPP and corporate media) of everyone’s jobs on oil development, Alberta has had four years of reckoning that haven’t really done anything to assuage any of the associated fears that come with that change.

To be fair, that transition was never something that was going to be able to take place in a scant four years.

Additionally, the Notley NDP have tried to break some of that sense of dependence through diversification. It’s something that hasn’t been well-publicized, but it also needed to be more aggressively pursued. And diversification is only one step — job retraining and the economic support and optimism needed to get through it are more critical. Albertans looked to Rachel Notley to lead them into and through a transition, and somewhere along the way, industry convinced the government and the public alike that the transition was yet another pipeline.

Consequently, we find ourselves at a crossroads in which Albertans seem receptive to old, failed conservative policies of austerity and corporate giveaways, regardless of the ethical concerns with a guy who may have broken electoral laws in order to become party leader, and regardless of whether he has surrounded himself with lake-of-fire social conservatives and semi-open white nationalists. It’s why we’ve seen people who’ve never protested before come out to agitate for pipelines, and naively allowed themselves to get hijacked by and aligned with racist wingnuts who’d previously floundered on the fringe for decades. Despite the stereotype of the Albertan redneck, Albertans have always tended toward worrying about the money, and not caring about the social positions that have aligned themselves with it (which is, in a way, even worse).

But here’s the clincher: a pipeline isn’t going to slow or stop the one-in-a-hundred-year floods, or the summer seasons that might soon be renamed “Smoke,” or the fracking-triggered earthquakes. And electing a traditional oil crony is more likely to undo the first steps that Alberta has taken than to make those hard choices. Because the longer Alberta tries to forestall its transition, the more abrupt, disruptive, and devastating that eventual change is going to be.

(crossposted to rabble.ca)

Leelah Alcorn’s Suicide, Parents’ Rights… and Kids’ Rights.

On Sunday, December 28th, 17-year-old trans* Ohio teenager committed suicide by stepping in front of a tractor-trailer on the interstate.  She was killed instantly.

Her tragedy says something profound which has been almost completely missed in the discussion about LGBT-inclusive education and Gay-Straight Alliances (GSAs) currently wafting across Canada.

Before Leelah Alcorn’s death, she posted a suicide note online.  Some of the links to it are no longer working, but the text is archived at Slate.  In it, she relates a heartbreaking story of a kid who learned what “transgender” meant at the age of 14, despite having always known in her heart that she needed to live as a young woman.  [This I can strongly relate to, having not heard anything about trans* people until I was about the same age or slightly older.  It was an age before Internet.  I wept for days at the realization that there was actually a word for it — until then, I thought I was the only one, and that it was a character fault.]  On telling her parents, they called it a phase, said it was impossible (that “God doesn’t make mistakes”), and taking her to Christian therapists, who told her that she “was selfish and wrong and… should look to God for help.”  The situation grew worse:

“So they took me out of public school, took away my laptop and phone, and forbid me of getting on any sort of social media, completely isolating me from my friends. This was probably the part of my life when I was the most depressed, and I’m surprised I didn’t kill myself. I was completely alone for 5 months. No friends, no support, no love. Just my parent’s disappointment and the cruelty of loneliness…”

She felt like everything was closing in on her: her social isolation, the hopelessness of having to afford a mass of expenses (college, moving away from home and transition costs including surgery), what she perceived to be an insurmountable challenge of being too masculinized by hormones by the time she can start transition at 18 (a tragic misconception, as transition outlooks are still usually extremely good when transitioning that young), the fear of living a loveless life, and more.

Since her suicide, her parents have received a wave of anger from trans* people, and responded by claiming to have loved their child “unconditionally,” while still adamantly invalidating her and misgendering her:

“We don’t support that, religiously … But we told him that we loved him unconditionally. We loved him no matter what. I loved my son. People need to know that I loved him. He was a good kid, a good boy.”

The media coverage has turned into a circus, with various publications conflicting and editorializing over whether Leelah should be acknowledged as the person she understood herself to be or deliberately invalidated as per the family’s wishes.  Meanwhile, the religious right response has been unsurprisingly vicious and negative, blaming trans* people for Leelah’s suicide, and that the real solution should have been more antagonism, reparative therapy, and invalidation until it somehow eventually overwhelmed her and somehow (inexplicably) made her feel better:

“The attitude that says we should be able to be what we want, no matter what, is dangerous. This Abby is complicit in her friend’s death. She encouraged wrong behavior. This wrong behavior created bad feelings or depression. This furthered Joshua’s depression and desire to make himself happy.

“Rather than saying gently and calmly that his problem was not that he was a girl trapped in a boy’s body, they should have said. “You’re a boy, in a boy’s body.” The confusion is that you are trying to be something that you are not meant to be, you’re not a girl…”

Others are calling for all trans* people to go “truck” themselves (i.e. commit suicide in the same fashion that Leelah did).

Since her suicide, vigils for Leelah have taken place across North America, including one in Winnipeg.  Trans* activists are calling for a change in the discussion about the well-being of trans* youth.

With the extensive (and puzzling) debate over LGBT-inclusive education and Gay-Straight Alliances (GSAs) in several provinces across Canada, there has been a considerable amount of ink spilled over a parent’s rights to deny their children information about sexual orientation and gender identity, and to deny the acceptance, validation and support of gay, bi- or trans* kids in schools as a matter of religious freedom of conscience.

And yet no one is talking about LGBT teens’ rights to acceptance, enfranchisement, freedom from harassment, and to learn about who they are.  Or the right of non-queer teens to learn what society now largely knows to be truth about their peers.

In Alberta, the debate has even gone as far as enfranchising parents’ rights in a way that supersedes the rights of children and teens, in law.

Canadian school boards have begun recognizing the need to enfranchise lesbian, gay, bisexual and trans* kids.  But will politicians and media do the same before Leelah Alcorn’s tragedy is repeated north of the 49th parallel?

Legislatively “Balancing” Human Rights

There is a simple, time-honoured rule about attempting to “balance” human rights classes in legislation so that it works out a particular way every time, and it goes like this:

You can’t.

That is a court’s role.  When two human rights classes are put into conflict in a way that creates hardships for both, a court becomes the arbiter, weighing the context of a given situation in order to determine which party has experienced the most undue hardship.

Legislating such a way that one party’s rights always supersedes the other creates a hierarchy of rights, and defeats the whole purpose of equal rights legislation.

Bill 10

That is what took place this week with Alberta’s Bill 10, which newly-crowned Premier Jim Prentice introduced to dump and replace Liberal MLA Laurie Blakeman’s Bill 202.

The latter bill sought to do three things:

• Give students the right to form Gay-Straight Alliances (GSAs) when and if they wanted to;
• Remove a section (s.11.1) of the Alberta Human Rights Act which called for parents to be notified and either evacuate their children or opt them into anything that taught tolerance of LGBT people (interesting trivia: Alberta is the only jurisdiction in the world that has a “parental rights” clause like this, and it took several years to implement because no one was sure how it could work); and
• Add a mention of the Charter of Rights and Freedoms and the Alberta Human Rights Act to the Education Act.

Premier Prentice’s new Bill 10 does this:

• Encourages school boards to allow GSAs;
• Allow the students to sue the school boards if they don’t (presuming they can find enough legal help, information, support and funding to cover the legal expenses to do so, and ride out the years of delay tactics at boards’ disposal);
• The bill also removes s.11.1 from the Alberta Human Rights Act, but makes changes to legislation which more or less negates the change, other than affecting the way complaints are addressed.

If at any point the Premier thought he had sliced through a Gordian Knot worthy of Alexander, he soon realized otherwise.  As the bill came up for Third Reading, several amendments were proposed by opposition MLAs, and Prentice is now said to also be considering some of his own.

There are two central conflicts within this debate, one that is discussed frequently during many debates on social issues, and another which has been barely remarked upon at all.

“LGBT Rights vs. Religious Freedom”

The first is the false equivalence between LGBT human rights and religious freedom.  The reason I call it a false equivalence is because what we’re really talking about is the complaint that the (“special,” as it’s sometimes called) right of lesbian, gay, bisexual and trans* people to have equal access to employment, housing, services and other forms of enfranchisement is trumping the (“perfectly ordinary everyday?”) right to deny LGBT people any or all of those things.  People retain the freedom to believe what they will, practice their faith, and speak their beliefs — all up to the point where doing so becomes harassing and disenfranchising to others.  In most of the situations that are framed as pitting LGBT rights against religious freedom, this sort of conflict can only be considered equally-matched if you believe that coexistence is a violation religious conscience.

But the “gay rights versus religious freedom” argument has been losing steam, partly because the public at large is starting to recognize it as a ruse, and partly because the cause of religious freedom opens the possibility that the proponents’ religion will be placed on an equal footing with other religions, such as Islam, Satanism, or even Atheism.  Hardline social conservatives like the American Family Association’s Bryan Fischer have spoken out about this within religious circles, and more are starting to follow.

Consider this candid rant by Scott Lively, the pastor who is widely credited with having inspired Uganda’s Anti-Homosexuality Act and Russia’s ban on “gay propaganda”:

“For about a year now I’ve been arguing against the use of “religious liberty” as a theme of Christian public advocacy. We retreated to that theme after SCOTUS Justice Hugo Black’s abandonment of the Bible’s authority in favor of a new “religious pluralism” standard in the 1940s-60s, starting with Everson v Board of Education (1947). That was the case that adopted Jefferson’s “separation of church and state” metaphor as a justification for declaring all religions to be equal with Christianity in America, and equally subservient to Secular Humanist authority…

“But God always provides a way of escape. (We’re only trapped if we accept the limitation of staying on their chessboard.) That narrow and difficult but God-honoring way is to stop arguing for “religious liberty” and resume our proclamation of the superiority of Christ and His Word over all opposing faiths (along with tolerance for people of other faiths — that‘s how it worked before Black). It’s goal must be nothing less than an official reaffirmation of the Bible as our legal and cultural foundation, which would require overturning Everson and its juridical progeny…”

It was never really about religious freedom.

“Parental Rights”

The other conflict that has been almost completely missed is the one between youth and parents.  The argument made for parental rights clauses is that parents should have (using the language of Bill 10) the right “to make informed decisions respecting the education of their children.”

No one was ever stopping parents from teaching their children what they believe and encouraging their kids to follow their lead.  What parental rights are actually about is the right to deny their children any information to the contrary.

And that only sounds like a good idea until you remember that the kids should have rights too.  But by enshrining parental rights in legislation, the Province of Alberta is essentially prioritizing the right of parents to deny their kids knowledge (and emotional support, if their kid happens to be gay or trans*) over the right of children and youth to know.  In some cases, it means that the attitudes of the narrowest-minded parents determine what everyone’s kids are allowed to know.

And when you say it for what it is, it doesn’t really sound like that brilliant a compromise.

On conscience-based medical exemptions

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

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

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

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

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

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

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

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

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

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

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

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

(Crossposted to Rabble.ca)

The Shocking Dr. Levin

The long, twisty and sordid legal saga of Aubrey Levin has finally come to an end.  Originally found guilty on three counts of sexual assault in January 2013, Levin’s five year prison sentence was upheld by the Alberta Court of Appeal, Wednesday.

The case has garnered international attention, due to the Calgary psychiatrist’s past as a military psychiatrist in apartheid-era South Africa. It is often alleged that during this time, he was affiliated with or led a project aimed at “curing” soldiers of being gay, by subjecting them to electroshock therapy or worse — allegations he continues to deny.

The 2012/3 Trial

It is important to separate what was said to have occurred in South Africa from what he was charged with in Calgary, in the interest of clarity.

Levin was charged with 10 counts of sexual assault (one was later stayed), after an initial accusation in March, 2010 inspired as many as 22 former patients to come forward with allegations of abuse, in incidents dating back as far as 1999.  Levin was convicted on three of those counts and acquitted of two, with the jury deadlocked on another four (two of those four were retried, but that too resulted in a mistrial).  In the process, Levin’s wife Erica was charged with attempting to bribe a juror (and that case is ongoing).

The 2010 charges stem from incidents in which Aubrey Levin was said to have fondled patients’ genitals.  The first patient to have come forward was so concerned about being believed that he used a spy camera to record multiple sessions.

In his defense, Levin said that he was not fondling patients, but using a urological technique called bulbocavernosus reflex (BVR) procedure, which is used to address erectile issues.  In one of the videos, though, Levin is seen fondling the patient’s genitals for more than ten minutes, causing Calgary-area urologist Ethan Grober to dispute this claim, saying “What I saw was a prolonged … fondling of the penis.  This was not a simple elicitation of a reflex.”  And even if the technique could be characterized as a BVR test, there was no logical reason that Levin, a psychiatrist, should have been conducting it.

Levin’s trial was a circus of delays and confusion.  The length of time taken to bring him to trial was unusual in the first place — 2 1/2 years, while police followed up with several former patients to determine how many charges could be laid.  From the beginning, Levin’s attorneys sought extended delays because of health issues.  The first was a request for 3-month respite so Levin could get his fragile health in order.  Calgary Sun reporter Kevin Martin elaborated:

Two doctors testified Levin was in such poor health that he needed to get in shape before he could sustain the mental and physical strain of what was then to be a six-week hearing.

They said that perhaps in three months, should Levin be given the chance to rehabilitate his degenerating body, he’d be able to survive such an ordeal.

Had they seen Levin leaving court after his conviction — to a gauntlet of news cameramen — they might have thought his recovery miraculous.

Using his wheeled walker as more of a weapon than a crutch, the good doctor raced at the photographers with the agility of a much younger man, forcing those with cameras to evade being struck.

As that request failed, there were questions about Levin’s mental health, and claims of vascular dementia (Martin noted: “But once he was declared fit, Levin became a new man, taking notes and instructing his counsel”).  Then, a drop in heart rate precipitated a medical emergency for which he was briefly hospitalized.  Then, he fired his lawyers and began to represent himself.  Then, he seemed unable to represent himself (certainly unable to cross-examine), and a new legal team needed to be found.  The judge had to consult with the jury whether they could remain through the extensions, and there were fears the proceedings would collapse if they couldn’t.  All in all, the trial that was expected to last six weeks had been deferred from August 19th, 2011 to October 10th of the following year, and wrapped up three and a half months later.

In addition to attempting to undermine the credibility of his former patients, a key part of Levin’s defense was to claim that the things that happened between them were consensual (we’ll come back to this point), and then were later mischaracterized or maliciously distorted by his accusers.  It’s an argument that he and his legal teams argued successfully enough to achieve an acquittal on two charges and a mistrial on four others.  In this way, his case became difficult to prosecute even beyond the circus-style atmosphere of the trial.

Levin’s defense tried to cut down the complainants’ testimonies by focusing on their records or troubles, by accusing them of having ulterior motives (including one claim that they were motivated by money), or even alleging that the complainant who recorded the abuse had made passes at Levin, and then edited those parts out:

“I’m going to suggest to you … that portion of the video shows you taking out your penis and waving it at the doctor,” Archer said.

During the trial, all effort was made to keep Levin’s past from playing a part, but occasionally revelations slipped out.  On November 15, 2012 the Calgary Herald reported (page now offline):

R.B. said Levin would take down books from his shelves and show him “pictures of penises and vaginas. He would show me different parts that were sensitive for sexual acts.”

“Other times, he would tell me about his past, when he was in the army, forcing men to rape women,” he said.

Immediately, Wister cut off the witness and asked Court of Queen’s Bench Justice Donna Shelley to dismiss the jury. Following discussions, Shelley recalled the jury and told them that there will be inadmissible evidence heard in the court room and it should be disregarded.

“Not everything you hear will be admissible,” said the judge. “To the extent (R.B.) has said anything not relevant to what happened between 2001 and 2010, it is not relevant to these proceedings. It is not evidence. Disregard everything not related to these charges.”

Authorities feared that a complete mistrial was inevitable if the jury heard too much of the shocking nature of allegations made about his years in South Africa.

The Aversion Project

What has drawn international attention to this case is that Aubrey Levin was said to have led the South African military project in the 1970s and 1980s designed to “cure” military recruits of being gay — a program that allegedly included things like shock therapy (for which Levin was nicknamed “Dr. Shock”), chemical castration, and even forced genital reassignment surgery.  While there are no mentions of Levin or the Aversion Project by name in the Truth and Reconciliation Commission’s final reports, it’s generally accepted that something of an indeterminate nature took place at Ward 22, Voortrekkerhoogte military hospital, Pretoria.

The National Post had originally raised questions about these allegations, but quickly retracted them after Levin threatened to sue.  Other media took notice and avoided mentioning Levin’s rumoured South African activities over the years that followed, although this did not deter international publications like The Guardian in the U.K. and South Africa’s Mail and Guardian.

When he came to Canada, Aubrey Levin did not apply for amnesty — nor was he granted it — so he could have been subpoenaed to appear before the Truth and Reconciliation Commission… but TRC never chose to make the attempt.  While the allegations were raised on record, there was also considerable frustration among the public that the TRC did not pursue the line of inquiry.  For example, in the Health and Human Rights Project (HHRP)’s verbal submission on day 2 of the Health Sector Hearings on June 18, 1997, the group expressed some frustration that the Aversion Project was not being focused on:

“After those comments I just want to digress a little bit and particularly for the benefit of the lawyers who’ve trooped into this hearing, I think we, as the [HHRP] Project, want to register our concern for this whole process which has led to a situation where many of the cases that we have brought to the attention of the Truth Commission we cannot actually name the particular health professionals involved. We are not going to name those health professionals but we feel it is really a travesty of the process of truth to arrive at a situation where we cannot speak openly. We fought for many years for a situation where people will be free to speak the truth and it seems that legal mechanisms have been invoked to limit the extent to which the truth could be disclosed. We would like the TRC to take note of that, particularly the fact that as far as the Project was concerned we were able to supply the TRC with the names of the doctors as far as we understand within the required time.

“Just in that regard we can talk about the kinds of cases we would have discussed…

“We also raise issues around military health personnel and we particularly want to challenge the SAMS whose presentation yesterday did not touch on any of the issues that we’ve raised and I think Commissioner Ramashala has certainly posed the question to them, but we have presented evidence regarding programmes which involved the re-programming, the use of aversion therapy for gay men in the military and we believe that these cases require further investigation, and the TRC, we would hope, would follow up in that regard.”

The South African Press Association (SAPA) described the shock therapy allegations raised by the HHRP in 1997:

The HHRP said Levine was first named in a December 1986/January 1987 edition of the War Resister, a publication of the Committee of SA War Resisters.

According to the publication, Levin was chief psychiatrist at the military hospital at Voortrekkerhoogte near Pretoria in the 1970s, when he practiced aversion therapy with gay conscripts who were admitted to the psychiatric ward.

Electrodes were strapped to the arms of the subject and wires leading from these were in turn connected to a machine. The subject was then shown a picture of a naked man and encouraged to fantasise freely.

While he was doing this, he would be subjected to electric shocks.

“The increase in the current would cause the muscles of the forearm to contract – an extremely painful sensation,” the article said.

When the subject was screaming with pain, the current would be switched off and a colour Playboy centrefold substituted for the previous pictures.

“The pscyhiatrist [sic] (in most cases Levine) would then verbally describe the woman portrayed in glowing and positive terms. Sessions were held twice daily for three to four days.”

The HHRP said although the subjects had to give their consent, most were between the age of 18 and 24 and were still coming to terms with their sexualtiy [sic].

It said the practice of aversion therapy appeared to stop when Levine left the hospital.

The last comment is curious, as Aubrey Levin has denied participating in aversion techniques — yet some of the allegations seem to point to him having championed them.  The National Coalition for Gay and Lesbian Equality (NCGLE, now known as the Lesbian and Gay Equality Project and which asked for a commission to investigate the medical torture allegations) claimed to have:

two boxes of papers documenting the 1968 Immorality Amendment Bill. Item B106 is an eager letter from a loyal member of the ruling, pro-apartheid National Party who claims to have successfully ‘treated’ homosexuals and wants to be invited to address the all-white Parliament on this subject. The letter is signed by Dr. Aubrey Levin, “medical practitioner and psychiatrist in training.”

What is widely alleged is that as a colonel in the South African military and chief psychiatrist in Pretoria in the 1970s and 80s, Levin was in charge of a unit where electric shocks were administered to “cure” gay white conscripts. Levin was also claimed to have overseen the use of electroshocks and powerful drugs against conscientious objectors refusing to fight for the apartheid army in Angola or suppress dissent in the black townships.  From The Guardian:

Levin also treated drug users, principally soldiers who smoked marijuana, and men who objected to serving in the apartheid-era military on moral grounds, who were classified as “disturbed”.

Levin subjected some patients to narco-analysis or a “truth drug”, involving the slow injection of a barbiturate before the questioning began. In an interview with the Guardian 10 years ago, he did not deny its use but said it was solely to help soldiers suffering from post-traumatic stress.

Levin said he left South Africa only because of the high crime rate, and denied abusing human rights. He said electric shock therapy was a standard “treatment” for gay people at the time and those subjected to it did so voluntarily.

“Nobody was held against his or her will. We did not keep human guinea pigs, like Russian communists; we only had patients who wanted to be cured and were there voluntarily,” he told the Guardian in 2000.

Aubrey Levin Comes to Canada

In the dying days of apartheid in South Africa, anxiety was high about the nation’s transition to full democracy, about whether the transition of power could remain (mostly) peaceful, and about what the implications could be for people of authority (especially if English or Afrikaaner) under the old regime.  In 1994, a general election was held amid car bombings and other scattered violence, and the Truth and Reconciliation Commission (TRC) was proposed. The inquiry would commence the following year.

Whether or not he left South Africa because of fears of crime as he claimed, amid that tide of change, the colonel and chief psychiatrist at Ward 22 in the Voortrekkerhoogte military hospital in Pretoria (and former head of psychiatry at the University of the Orange Free State) did what anyone afraid of uncertain consequences might do: he fled to a place that he felt was most friendly to his worldview, and most willing to look the other way about anything he might be alleged to have done, regardless of whether those allegations were true or not.

And so, before he could be called to testify at the TRC, Aubrey Levin fled to Canada.  There, after a brief stint as regional director for the Regional Psychiatric Centre in Saskatoon, he became a professor of Forensic Psychiatry at the University of Calgary, and established a practice at the Peter Lougheed Hospital.

Canadian media continue to fear looking at the Aversion Project, due to the fact that the allegations remain untested in court.  But in looking at this past, some patterns emerge.

“Consent” and the Clinic

The Daily Mail and Guardian published a 132-page study entitled “The Aversion Project,” although it is now difficult to find it archived online.  In that report, we find the one peculiar link that does in fact connect what happened in South Africa (whether Levin was involved or directed the Project, or not) to the incidents of abuse in Calgary for which Levin was charged: a gross distortion of the idea of “consent” within a clinical setting in which patients didn’t genuinely have an option on whether to consent, and little to no information about what they’d be subject to.

The medical profession is reputed for pathologising any form of behaviour. For example, it is known that the military has a history of doing sex change operations— many sex changes were done in Military hospitals. One has to ask to what extent this was experimental. (Workshop 1999) Although in any medical advancement there is always a cutting edge of experimentation, in total institutions there is a captive audience. The question then reverts to one of ‘informed consent’ and whether the choices people are given are limited because they cannot say ‘no’.

In any total institution, one has a captive audience, and the medics have protective insularity through their profession, so the environment is open for abuses to take place. Therefore special care should be taken not to abuse people’s rights. The Bill of Rights perspective should not only be applied to homosexuals, but seen in a broader light. There is the problem of marginalising groups again, but on the other hand the issues of the minority group should remain visible.

In a July interview for the Mail and Guardian for that study (now offline but referenced by the Gully), Levin was said to have admitted participating in aversion therapy, but denied some even more shocking allegations of forced gender reassignment.  The Gully articles claimed that former army surgeons estimated as many as 900 surgeries took place (a number that seems to come from journalist Paul Kirk and writer Terry Bell, although it’s not certain if this number includes chemical castrations or other medical procedures that differ from contemporary sex reassignment).  It’s important to repeat that Levin has never been publicly charged with any of the things alleged here, and rumours and allegations should not be confused with convictions.

When Levin has referred to treatments administered at Voortrekkerhoogte, his claims that the treatments were given to consenting patients may seem true from his own perspective… if one overlooks the participants’ situational vulnerability, the lack of information given to them, and the many various things that they could be threatened with — dishonourable discharge, outing to families and communities, the potential for trumped up charges, rewards for co-operation, and even the manipulation of internalized homophobic guilt, stigma and shame (which would have been much more common and seemed more monolithic in the context of the 1970s and 1980s).

The question of whether one can consent when the subject is a captive audience is a profound (though circumstantial) link between the Aversion Project and Levin’s Canadian convictions.  Even if he were simply present at Voortrekkerhoogte during the practices that the Aversion Project is known for, the application of those practices could have provided Aubrey Levin with the strategies to carry out his later abuses in Canada.  And to him, they might have all seemed technically “consensual.”

The Captive Audience

The power disparity, too, cannot be discounted.

I’ve never been to Calgary’s Forensic Assessment Outpatient Service (FAOS), but I am familiar with its Edmonton counterpart, Forensic Assessment Community Services (FACS). FACS was the downtown clinic that dealt with many of the city’s “hard” cases — people who needed medication to manage psychosis, who were ordered by the courts to undergo psychiatric evaluation, who got into trouble and couldn’t afford reputable help, who had no money or community supports, or who had been referred by hospitals after attempting to self-harm.  In Edmonton’s clinic, it was also one of the two clinics in the Province of Alberta that treated transitioning transsexuals… so I became amply familiar with it.  It was a space thick with desperation and rage, a high-security clinic where the waiting room would at once be awash with tension and hopelessness and fear.  One had to be buzzed into the back where the therapists offices are, often escorted. I hesitate to portray the clinics too negatively, because many of the people there have been held down by poverty and strife, and sincerely try to rise above the circumstances that resulted in their treatment.  The clinicians, too, are often dedicated to their work, even if the extension of one hand in empathy is balanced with readying for conflict, with the other.  Yet, the setting can’t help but feel oppressive.  Some of the doctors were burned out; others had an intense dedication to their work, but the circumstances in which they practiced left them hardened, jaded.  When one is at a clinic like FAOS or FACS, it’s often because they have no choice, whether legal, economic or otherwise — one has nowhere else to go, and usually has several hoops to jump through in order to access the care that ones life is dependent on, in some way.

People are particularly vulnerable in a place like FAOS and FACS, and often not very respected when they go into care.  There are often conditions at every step, such as required follow-up reports to probation officers, or else subsidized housing or income (such as Assured Income for the Severely Handicapped support) are dependent on continued treatment.  It’s also a setting where small gestures easily put one into a dependence scenario.  In a clinic like FACS or FAOS, a therapist is in a position of control from which he could threaten to withdraw his support for a patient’s social assistance, or even terminate care in a way that would land them back in jail.  And although outside of the mandate at FAOS, it’s certainly possible that a therapist could increase patients’ dependence by providing some food or loose change — as happens, in that setting.  This was all in addition to the intimidation patients would experience by the visible respect forensic therapists had within the psychiatric and legal communities.  It’s obvious to me why the original complainant felt he had to record the sessions more than once in order to be believed by authorities (and why prosecutors found the trial particularly difficult).  When a therapist takes someone to the private examination room, they could be more or less helpless to do anything other than play along.  From the testimony of RB, the complainant (his name is under a publication ban) who secretly filmed two visits, and who was seeing Dr. Levin by court order:

“I didn’t know what to do, because I knew Dr. Levin could send me to jail by the snap of his fingers,” the man said.

“Now that I think about it I think he would say that I was delusional.

“I was scared that they would tell Dr. Levin that I said that … he would deny it and I would be in jail, or a straight jacket — who knows.”

Whether or not anything regarding Aubrey Levin’s alleged association with The Aversion Project can ever be substantiated, the overlapping similarities between those things that are known provide some important lessons.

What remains to be seen is whether anyone hears and learns from them.

(Crossposted to The Bilerico Project)

The Difficulties in Remembering Rosa

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

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

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

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

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

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

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

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

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

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

More details will likely follow in the coming months.

Leaving High River

On September 20th, 2013, we started moving into our new home.  It was further away from Calgary (where I work), making for a longer commute.  But the home was dry, and it was ours. We were exceedingly lucky.

Three months from the day that my partner and I were first evacuated, we were leaving High River.

Most of the news that people will hear will focus on the numbers, now.  Insured damage has topped $1.7 Billion, making the flooding throughout southern Alberta the costliest natural disaster in Canadian history.  Even that ignores the fact that the most widespread of the damage (overland flooding) is not covered by insurance plans in Canada… something that has resulted in many fights with insurers over just how much damage is the result of sewer backup or other insured aspects.  Unsurprisingly, the insurance industry is already telling Albertans to brace for a 30% hike in rates.  Meanwhile, many High Riverites — and throughout Southern Alberta (the nearby Siksika Nation reserve was also particularly hard-hit) — struggle to find options.

But there we are, detoured by the numbers again.  It’s the only way we have to measure the scale of what occurred.  Otherwise, we’re helpless to the randomness and madness of it all.  While non-residents seem to have the impression that the entire town was built on a floodplain, the expected flood zone actually accounts for very little of the community… something that is factoring significantly in the conflicts between the Province and inland residents who are finding themselves ineligible for the long-promised relief funding.  While it’s true that the entire town was flooded and evacuated, the reason it did may be more mishap than anything, and probably will be the stuff of lawsuits for the next decade.

As we were moving into our home in another town, a number of High Riverites were also just returning to theirs, in the hardest-hit part of the town.  Others were still living in the trailers set up in various places, while their homes could be restored to habitability. Much of High River’s downtown core is patched up but left dark, with no certainty of whether some of those businesses will ever return.

In nearby Calgary, the volunteer thanking and patting on the back has grown so old that residents are starting to sound almost tediously annoyed when reminded that people remain displaced since the June calamity.  “Isn’t that all over, yet?”

“Isn’t it over, yet?”

It seemed to take forever.

When the flooding first hit, High Riverites were being told to check the town website, to listen to the local radio station, or to follow the Facebook and Twitter feeds. But the town website was offline, and the local radio stations were reduced to dead air. The feeds weren’t being updated. A Calgary station reported that a woman had been washed away from a trailer in Black Diamond. And boats from an RV sales centre were being sighted miles downstream. And the Town of Bragg Creek was underwater. My partner rushed home to gather our shih-tzu and an overnight bag, just in case.  One minute, everything was dry; the next, she was driving out of our community with water up to the bottom of her car door.

There was a severe lack of information in the beginning, and then when updates finally came, they arrived with some tempers and occasional snark.  It was five days before we were able to see aerial photos of the flooding mess, which had inexplicably reached every building in town, including areas that we had previously been certain were too far from the river or too elevated to be in any danger.  But all prior expectations were rendered moot. As someone who had previously researched the worst flooding of the Town’s pre-2005 known history — in the 1910s, which resulted in water a foot deep at the Wales Theatre — it seemed surreal to look at photos now of our local 7-11 submerged almost up to its awning.

The debates are fierce, now, about whether the canal system that had been designed to withstand a 1-in-100 flood like the Town experienced in 2005 actually helped spread the water everywhere, or whether a decision to divert some of the flood waters into what ultimately became the hardest-hit neighbourhood (despite its distance from the river) was a decision (as one engineer called it) to sacrifice that community.  But back then, we didn’t even know enough to base a guess on.

We understood that there was mess and risk, yet the Town seemed to want to go to the overprotective extreme, to have roads completely cleared and utilities, water, sewage disposal, sewage treatment, power, phones, protective services, fencing for “high-risk areas,” and medical centre all fully-functional, and a “welcome centre” in operation, before we were going to be allowed back. Even the most pragmatic of us had to fight the impulse to kick ourselves for not ignoring the evacuation order.  The risk and chaos of living in a houseboat on Lake High River almost seemed like a preferable course of action.

Equally perplexing was the way that during the evacuation, skilled and experienced contractors were being turned away, only to later see the entire recovery and cleanup effort turned over exclusively to a predominantly energy-focused company, before the public really knew that there was a bidding process.  But that came later.

The Town enlisted the Canadian Armed Forces to protect the flood-damaged township from its citizens.  Yet most of the military presence was gone before we were even allowed to see our homes or know the state secret of what was left.  It was a week and a half before residents of select areas were being allowed back in to view their homes — wealthy areas first, it seemed — and secure their things.  My fiancee and I were allowed in at the two-week mark, and arrived to find our window smashed in, so that it could have been easily accessed for nearly a week by the volunteers already allowed into ground zero.

In some media outlets, you’d almost think that the most important story in all of the mess was the RCMP entering of homes and seizing unsecured firearms, rather than the enormous expanse of lake which nearly a month later still sat where the eastern third of a town had been.  Even that little aspect of the flooding gets engineered: you don’t hear from the animal rescue efforts or from residents upset about their belongings left unattended or from homeowners whose firearms weren’t seized. The entire southern Alberta flood has been distilled into a rallying cry for insecure gun nuts.

Of course, you can’t talk about global warming.  That would be politically exploitative and crazy.

There’s a perception that Albertans are among the most stubborn of the climate change deniers. Yet, there weren’t very many skeptics milling about outside the Nanton evacuation centre… although the acknowledgement is sometimes made by subsuming things into a biblical paradigm of end-times scriptures about “earthquakes in diverse places.”  Even so, if there was one thing that people in southern Alberta shared, it was a realization that something had changed.  High River and many other towns had already seen a “1-in-100” flood, in recent memory (2005).  This was different.

And as we waited to return home, it was not lost on people that a record heat wave stretched across the western half of North America, with heat-enhanced fires claiming the lives of 19 highly-skilled firefighters.  Flash sleet mixed with slush (called “hail” on the news, but we could see for ourselves what it was) struck Alberta in July, a monsoon hit Uttarakhand, India, record flash flooding struck Toronto, and now Colorado has experienced something eerily reminiscent of June 20th and 21st.  Bad weather happens.  But greater extremes, greater unpredictability, greater frequency, and greater consequences… that’s unmistakably different.  Especially when we know the magnitude of what we experienced:

When a low pressure system from the Pacific reached Alberta, that parked high pressure cell kept the low pressure backed up against the foothills, dropping rain across much of central and southern Alberta for much longer than expected. Many locations across southern Alberta received as much rain in 18 hours as they would normally receive in two months. Since some snow still remained in the mountains, there was also a rain-on-snow event that added even more water into the creeks and rivers.

From my own perspective, I don’t know how we can know what we do about CFCs, lead, mercury, sarin gas, carcinogens, forms of toxicity, the steps needed to prevent or control chemical leaching, and not think that what we do in industry can have lasting effects on our ecosystems.  Or why we would not feel an obligation to do what we can to be responsible stewards of the world we love.

The Town of High River is a weird little idyll in the Alberta Southwest.  It’s remote enough to feel like a retreat, but urban enough to feel luxurious.  Situated where the prairies begin to fade into foothills, with the Rocky Mountains waiting inspiringly in the near distance, it’s almost an epicentre of rustic western Canadiana.  It’s only a little over an hour into Kananaskis, to the mountains, to the rugged Porcupine Hills, to urban Calgary, to Aboriginal historic sites like Blackfoot Crossing or Head-Smashed-In-Buffalo-Jump, to picturesque Banff and Canmore, not quite two hours to the Drumheller badlands, to some of Alberta’s rare patches of near-desert, just a little further into Peter Lougheed Provincial Park, to Waterton Lakes or to the Writing-On-Stone heritage site.  It took something like eight day-trips just to see the most notable filming locations for Brokeback Mountain.  It’s easy to see why series like Heartland would be filmed here, and why the first Mantracker would be a High Riverite.

It seems strange to leave, and also concerning about what the town is likely to become.  Largely untouched by box-stores and big brand retailers (other than fast-food locations), that’s sure to change, as many independent businesses are likely to not rebuild, while larger retailers will probably take interested in rebuilding incentives, and council are not likely to be as choosy.  It’s disaster capitalism on a micro- scale.  The spark of the town is gone.  It seems better to leave entirely than to sit in the midst of the dank and dark that has stained everything.  We feel guilty, overly-privileged, and more than a little resentful of the day everything changed.

On the morning of June 20th, we expected that people would start sandbagging in the morning, and we’d head over to wherever we might be needed, in the evening — probably the floodplain areas.  By then, people would be getting tired, and we could give them some rest, bring coffee, or provide whatever support was needed. We weren’t worried: we’d seen what we’d been told would be the worst, in 2005.  Even so, the morning seemed a little surreal as I left for work in Calgary, and had to struggle to get onto the main road, for all the bumper-to-bumper traffic.

We never thought we’d be leaving High River forever.

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)

MP’s trans predator fearmongering escalates.

On Friday, Sun News commentator Brian Lilley interviewed Rob Anders, the Member of Parliament who has drawn condemnation for conflating transsexual and transgender people with sexual predators in a petition he has been circulating on his website, and to at least one church in his riding. In “Children’s bathroom bill reaches Parliament Hill,” both doubled down on conflating trans people with sexual predators, and suggested that granting human rights inclusion will somehow enable and legally absolve predatory acts.  Anders claims there is “all sorts of examples of this going on.”  Which is news to anybody else.

Lilley introduced the interview by once again calling for the defunding and privatization of CBC, the network which first broke the Anders story, and which Lilley has tried to portray as ludicrous for taking note of the petition.  During this time, though, Lilley has also been taking note of a Toronto District School Board (TDSB) policy that accommodates trans kids.  Like fellow Sun News Network commentators Michael Coren and Faith Goldy, he’s made that all about washrooms.  While discussing the TDSB policy with Anders, they arrive at this exchange:

LILLEY: We are going and changing all kinds of things that… I agree with you, could put people at risk of being exposed to perverts to fix something that is, what, one percent of one percent of one percent of a subset of a subset?

ANDERS: Yeah.  You know, why would we lower peoples’ natural defenses of a man going into a woman’s bathroom in order to “accommodate” [scare quotes added because at this, Anders appears to grin mockingly or suggestively]  this very very small, you know, part of the population.  In order to expose all sorts of women and girls to this…?

At that point, Rob Anders relates a phone call that told an anecdotal story of a crossdressed peeping tom who allegedly peered over stalls in the Canterra building in downtown Calgary four years ago.  Searching various media online, there appears to be no corroboration that it even occurred, let alone that it happened as related.  The network sensationalistically underscores this story with staged photos that are supposed to be representative of trans people in restrooms, including one featuring a urinal covered in police tape, and another showing someone with a long wig and a dress standing at a urinal.  Or at least I’m assuming they’re staged, because it would be concerning if someone is snapping candids in washrooms.

At an earlier point in this interview, Brian Lilley also points to one of the men accused of chaining and abusing a Nova Scotia teen — the attacker was said to have occasionally dressed in womens’ clothing.

Most Canadians either don’t know someone who is transsexual or transgender, or else aren’t aware that an acquaintance is trans (and given my experience as a community advocate, I suspect it’s more often the latter).  For this reason, Anders and Lilley float these examples as being representative of all trans people, and as justification for excluding those entire characteristic classes from basic human rights protections.

LILLEY: “Then he’s free and clear.”

Enter Bill C-279, An Act to Amend the Canadian Human Rights Act and the Criminal Code (Gender Identity and Gender Expression), which is a human rights bill addressing employment, housing, access to services and discrimination.

The bill says nothing about washrooms, which Lilley briefly acknowledges before calling washrooms a side effect of the bill, and then continuing to focus on them at the expense of all else.  C-279 also wouldn’t change the fact that trans people have already been using washrooms appropriate to their gender identity for decades.  But it’s at this point that Lilley and Anders claim that the bill would somehow essentially absolve the people in their examples of any culpability for their actions.

ANDERS: “Then he’s free and clear, that’s right.”

Readers are invited to find any example in which rape, molestation and other illegal and inappropriate behaviours were suddenly excused because the perpetrator was a member of a class listed in human rights legislation.  As equal human beings, we are all still responsible for behaving ethically and respectfully toward our fellow human beings, and to face the legal consequences if we don’t.

We also don’t exclude entire groups of people from public washrooms (let alone human rights) on the off-chance that one of them might be a sexual predator.

When I wrote about the history of the “Bathroom Bill” meme, one thing I didn’t mention is how opponents of trans rights initiatives tended to conflate trans people with predators, and then when called on it, would habitually backtrack to say it wasn’t trans people they were worried about, but that they thought trans-inclusive legislation could provide cover for actual predators to commit acts of sexual predation.  And then they’d go on talking about “transgenders” with hairy legs and skirts stalking children and doing unmentionable things in washroom stalls, as a reason to block human rights legislation.

But with the way Lilley’s interview is presented, there’s visibly no effort at all to make any kind of distinction.

And all of this, of course, completely overlooks the dangers to safety of going the opposite direction and forcing transsexual women to use a men’s room.  Or whether women would be happy having trans men in theirs.

Which brings us to Brian Lilley’s bottom line:

LILLEY: “Why do we have all these groups mentioned to get special treatment in the Human Rights Act, in the Criminal Code?  I thought we believed in treat all people equally and fairly in this country.  And why don’t we just get rid of all this nonsense and say all people are equal above and beyond [sic] before the law?”

Overlooking the fact that you just referred to equality as “special treatment,” Mr. Lilley, it is most likely because there is ample evidence that there are clearly bigoted attitudes and beliefs about entire groups of people, conflating them with abhorrent actions and behaviours — even to the point of circulating petitions, making comments on the floor of the House of Commons, and reporting them on television as fact — in ways that make discrimination against those groups likely or even inevitable.

Sun Media’s Brian Lilley interviews Rob Anders

(Crossposted to Rabble.ca)