Archive for the ‘ Alberta Politics ’ Category

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 Difficulties in Remembering Rosa

RosaRibutIn 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)

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