Archive for the ‘ Canadian Politics ’ Category

Canada’s Trans* Rights Bill Now Endorses Bans in Washroom and Gendered Spaces

Canada’s trans* human rights bill C-279 was amended by a Senate committee, in a way that makes it legal to ban trans* people from washrooms and gendered spaces appropriate to their gender identity.

Sen. Donald Plett, Conservative member of the Standing Committee on Legal and Constitutional Affairs, added a legal exemption for “any service, facility, accommodation or premises that is restricted to one sex only, such as a correctional facility, crisis counseling facility, shelter for victims of abuse, washroom facility, shower facility or clothing changing room.”  The amendment passed with six of the committee members supporting it, four opposed, and one abstention.

There were two other unanimous amendments made.  One added the category of “sex” to the protections in the Criminal Code (which has long been a bizarre and serious omission from hate crimes legislation).  The other removed the definition of “gender identity” which had been added in the House of Commons as a condition of passing the bill, back in 2013.  Because the bill has been amended, it would need to return to the House for a final vote before being enacted.  It is thought unlikely that the bill would be brought forward before an election call — and now, if it did, the bill’s original proponents would oppose it — meaning that C-279 is almost certainly dead.

“The very act that is designed to prohibit discrimination is being amended to allow discrimination,” the bill’s Senate sponsor, Grant Mitchell, pointed out.  “It holds people who are law-abiding, full-fledged and equal members of our society accountable for the potential — the very, very long-shot potential — that someone would misuse this to justify a criminal act.” (The transcript has not been posted yet, but the videocast is still available)

Sen. Plett has long claimed that the bill would be exploited by pedophiles and rapists to attack women and children in washrooms, a claim that has been repeatedly debunked by law enforcement officials and other experts:

Minneapolis Police Department: Fears About Sexual Assault “Not Even Remotely” A Problem. Minneapolis police spokesman John Elder told Media Matters in an interview that sexual assaults stemming from Minnesota’s 1993 transgender non-discrimination law have been “not even remotely” a problem. Based on his experience, the notion of men posing as transgender women to enter women’s restrooms to commit sex crimes “sounds a little silly,” Elder said. According to Elder, a police department inquiry found “nothing” in the way of such crimes in the city… [Phone interview, 3/11/14]”

Additionally, criminal activity in a washroom or gendered space would continue to remain criminal regardless of the gender of the perpetrator.  On the other hand, trans* women face very real dangers when institutionally housed with men or made to use segregated facilities according to their birth sex.

Nevertheless, bathroom-related fearmongering has been the cause of several petitions and campaigns to kill trans* human rights legislation in North America.  It has also started to spawn draconian bathroom-policing bills (some of which ignore the actual genital status of the person, even though genitals are allegedly the rationale for the law):

“Building managers who “repeatedly allow” trans people to use the bathroom that accords with their gender identity would, however, face up to two years in jail and a maximum $10,000 fine under the proposed law.

“… If passed, the law could tighten how Texas defines gender, not only singling out transgender people, but those who have chromosomes that don’t fit the strict definition laid out in the bill, like intersex individuals. The bill reads:

” For the purpose of this section, the gender of an individual is the gender established at the individual’s birth or the gender established by the individual’s chromosomes. A male is an individual with at least one X chromosome and at least one Y chromosome, and a female is an individual with at least one X chromosome and no Y chromosomes. If the individual’s gender established at the individual’s birth is not the same as the individual’s gender established by the individual’s chromosomes, the individual’s gender established by the individual’s chromosomes controls under this section…”

Plett’s reasoning essentializes trans* women as being “biological males” (“… and I will use ‘men’ because I believe they are biological men — ‘transgender,’ but biologically, they are men”), and asserts that they are inherently a threat to cis* (non-trans*) women.  When it was pointed out that his amendment would require trans* men to use womens’ facilities, Plett appeared indifferent, and he later referred to a young trans* man as “she.”  Plett added that he believed his amendment would allow “separate but equal treatment.”

Bill C-279 would affect only areas under federal jurisdiction, such as federal facilities, the Armed Forces, federal agencies, and First Nations reserves.  But it had been seen as a potentially important symbol of human rights protection to have specific federal inclusion.  Canadian human rights commissions consider trans* people written into legislation, but without explicit inclusion, there remains a possibility of an overturn in court precedent (where application is not as certain).  Meanwhile, companies that take direction from federal legislation continue to not see a need to develop policies for trans* employees.

The Northwest Territories was the first Canadian jurisdiction to pass trans-inclusive legislation, in 2002.  Ontario, Manitoba, Nova Scotia, Newfoundland and Labrador, Prince Edward Island, and Saskatchewan all have provincial protections.  In British Columbia, a similar bill, M-211, has been blocked by B.C. Liberals, who refuse to allow it to face a vote or discussion.

Former Member of Parliament Bill Siksay first introduced a trans* human rights bill in 2005, and continued to reintroduce it in every Parliamentary session, until it eventually passed in the House of Commons. However, it was awaiting ratification in the Senate when a federal election was called, which killed the bill.  In 2011, Siksay left federal politics, and Randall Garrison reintroduced it as C-279.  In 2012, many trans* people stopped campaigning for the bill when the characteristic of gender expression was deleted from the bill, and a definition of gender identity was added.

(A version of this article also appears at Rabble.ca and The Bilerico Project)

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.

BDSM, Gender, Entitlement, and Jian Ghomeshi

Whether anybody wanted the conversation right now or not, it’s become time to have a conversation about BDSM, gender and entitlement.

Over a week ago, Jian Ghomeshi, the then-popular then- CBC commentator, appeared to be coming out of the closet about engaging in what he referred to as “rough sex (forms of BDSM),” and claiming to be fired because of workplace discrimination.  The post read as sincere and from the heart (and badly timed because of his father’s passing), so we wanted to believe him.  For anyone who cares about sex and gender minorities, there was a temptation to circle the wagons and voice support.  There was a lot of discussion about the human right to one’s own sexuality, but then…

“Wait, what was that about allegations…?”

It took a moment before people realized the problem with not first hearing out and supporting the women who had spoken out about him.  Canadians had been taken in by a public relations act that was either advised or coordinated by a top-rated PR firm.  Nevertheless, the realization slowly filtered out that there was more to the story that deserved to be listened to and respected (and which, we learned, had already been voiced in the past, but no one had heeded).

Since then, more women have come forward about violence, sexual harassment or abuse, and more may be forthcoming:

“He did not ask if I was into it. It was never a question. It was shocking to me. The men I have spent time with are loving people,” said [actress Lucy] DeCoutere, who, when she is not acting on the television show, is a captain in the Royal Canadian Air Force in New Brunswick…

“… One of the new women to come forward is a woman in her mid-20s who was a CBC producer in Montreal who dreamed of being on Q. He met her at one of his book signings. Ghomeshi allegedly took her to his hotel room, threw her against the wall and was very “forceful” with her. She said she performed oral sex “to get out of there.” The woman, who still works in the media but not at CBC, said she decided not to complain about his behaviour because she feared he was too powerful…”

“… A CBC employee in her late 20s alleges that in 2007 Ghomeshi was sitting with her and other producers at a story meeting for his radio show Q . After their colleagues stood up and left, she alleges Ghomeshi leaned in close to her and quietly said “I want to hate f— you…

Lest anyone complain that women should have spoken up sooner or more publicly, there are painful consequences to speaking out about sexual or gender-based violence, and so unfortunately, few women do.  YMCA of Canada reports that of every 1000 sexual assaults, only 3 actually lead to a conviction.  It’s even worse when the person in question is an acclaimed public figure.  Mary Elizabeth Williams at Salon urges people to do the math:

“On this side, there’s a successful, well-liked male public figure. And on this one, there’s a likely trail of sexually charged messages. There’s woman who in many situations agreed to go on a date, agreed to go to a private place with a man, maybe even agreed to see him more than once. And awaiting her is a culture of vindictiveness and retaliation that is so terrifying that women who appear in videos about catcalling get rape threats, and women who speak out about feminist issues get doxxed and harassed and murder threats. It’s a culture in which public sentiment can be cruel and law enforcement is often reluctant to assist…”

#IBelieveLucy and #IBelieveWomen. And given that Jian Ghomeshi has seen fit to disclose his perspective and make this a public spectacle, I no longer see any obligation to avoid speculation.
Believing women is the first part of the discussion.  If you believe women, then you must also be prepared to take a harder look at gender, social power exchange, and entitlement.
No Excuse to Abuse, Nor to Assume

Ghomeshi also dragged kink into the mix, by using it as an excuse for his sense of male entitlement. If I know anything about kinky people, it’s that using BDSM as a way to mask abuse is not going to sit well. Fortunately, kinky folks weren’t about to let him claim anti-BDSM discrimination lightly.  Even when they wanted to give him the benefit of the doubt, they usually did so conditionally, pending more information.  Some people spoke up about what BDSM is, to provide a standard against which Ghomeshi’s behaviour would be measured when it was learned.

Very quickly, there were problems apparent with Ghomeshi’s account — or at least of his hiding behind ethical BDSM while making his argument.  When a person is significantly younger (which can — but doesn’t always — translate into a difference in maturity level) or perhaps starstruck — situations where they might make decisions they wouldn’t otherwise normally make — consent can become a grey area, well before kink has become a part of the equation.  In BDSM negotiation, there is a responsibility to ensure that there is no undue imbalance.  Certainly, an adult is still capable of consenting if they’re not as old as their potential partner, or if they’re starstruck… but the potential for imbalance creates a greater responsibility to assure clear consent, and that one is receiving it from someone who is fully aware of what they’re getting into.  It was pretty clear that Jian Ghomeshi had not only failed this doubly-due diligence, he was oblivious to it.

I encourage readers not familiar with BDSM to read Andrea Zanin’s discussion of how healthy, consensual BDSM practices are actually supposed to work.  If you’re uncomfortable reading about it, or can only deal with the TL/DR, the keys are that BDSM is supposed to be something that happens between two people who are mutually interested in it, requires clear and thorough negotiation, acknowledges that consent is an ongoing process during which it can be withdrawn at any time, and also calls for aftercare.

“We adjust based on verbal and non-verbal feedback. In some scenes, this feedback loop can become so instantaneous that it’s as if you’re both experiencing the same sensations. For some of us, this kind of deep connection and intense intimacy is the whole point of BDSM play. If someone uses a safeword or withdraws consent in any other way, that’s not a failure or a loss – it’s a sign to stop, check in, and perhaps end the scene. Why? Because the point here is mutual enjoyment, not playing out an agreed-upon scenario to its bitter end...”

It’s worth adding some discussion about power exchange and about gender.  And it’s a hard discussion to have, because there are polarized camps within feminism about BDSM: either it is seen as a reinforcement of gender inequality and inherently harming to women, or else it is seen as a question of a person’s own right to their sexuality, and to pursue what each individual needs within an ethical construct.  I have trouble with seeing it as being “inherently” harming, having known people of all genders and roles who find it to be cathartic (not always, but when / if they’re so inclined), and find that the reinforcement of gender inequality stems from the already-existing social norms, which have shaped how BDSM is received and portrayed — more a symptom than a cause (more on that later).

There are a lot of different practices lumped into BDSM (an acronym meaning bondage & discipline / dominance & submission / sadomasochism), but most of them involve an element of power exchange.  This is the most fascinating aspect, because when one follows the threads and implications, it actually teaches some profound things about social justice.  But for now, the basic understanding is that in most BDSM encounters, it is a question of one person surrendering power within a negotiated framework, while another accepts power and the responsibilities that go with it.  There are two crucial points to this: 1) a person must first have power in order to be able to surrender it (so there must be a start from an equal footing), and 2) an exchange of power can never be assumed, guessed at or taken for granted.  That second point is especially key here.
Syndicated columnist Dan Savage theorized that if Ghomeshi was honestly engaged in BDSM to any degree, there would likely also be women who have had a kinky relationship with him that they consider to have been positive.  He found two so far who were willing to speak anonymously (after verifying their history via texts / emails and verification through friends).  But what they relate — even if the women themselves were fine with what took place — is a picture of someone who would “initiate” with roughness, and interpret how they respond as whether or not they consented.  Which is not how consent or negotiation work:

“… I think I can square the two Ghomeshis.

“The woman with whom I spoke doesn’t live in Toronto. She and Ghomeshi flirted via text and Skype for weeks before finally meeting up to have sex. And in that time—over those long weeks of flirting—a mutual interest in BDSM was established (file under “lucky coincidence”) and she consented to the things Ghomeshi was floating in their texts and chats. The woman who was interviewed on As It Happens, on the other hand, lives in Toronto. Ghomeshi flirted with this woman in person. And instead of telling her what he was into—instead of talking with her about BDSM—Ghomeshi chose to show her what he was into: he grabbed her hair in the car and asked, “Do you like this?” When she hung out with him again, when she came back to his apartment with him, Ghomeshi concluded—erroneously and self-servingly—that the answer to the question he asked her in the car was yes. Yes, she liked it. Yes, she liked it rough.

“I’m not suggesting that this was all a big misunderstanding. I’m not suggesting that Ghomeshi innocently misread the signals of the woman who was interviewed on As It Happens or the women who spoke to the Toronto Star. But the only explanation that reconciles the stories of the now four women who claim they were assaulted by Jian Ghomeshi with the story of the one woman I spoke to today is this: Ghomeshi isn’t a safe, sane, and consensual kinkster. He’s a reckless, abusive, and dangerous one who has traumatized some women and lucked out with others…”

Consent cannot be presumed beforehand.  One does not subject someone to roughness before negotiating the terms of that exchange.  Indeed, it’s almost as though Ghomeshi thought that only sex (that is, the act) needed to be consented to… that the violence was just for free.  And that would indicate a stunning sense of entitlement.

Not Responsibility, But Entitlement

When collected, the accounts of Jian Ghomeshi’s behaviour paint a picture not of ethical, responsible and consensual behaviour, but of a sense of profound entitlement in which he saw no issue with striking a woman first, and then making a judgment for himself whether she was interested in continuing.

Did he not trust women enough to discuss things clearly and honestly with them first?  Did he think himself a better judge of what women want than than the women themselves?  If a woman’s clear, cognizant, continually-negotiated consent (let alone mutual interest!) isn’t important enough to obtain verbally before striking her, that is a stunning and dangerous sense of entitlement.

Maybe it’s no surprise, then, that Ghomeshi thought it was worth debating whether rape culture exists.

When Jian Ghomeshi posted his original message to Facebook, he compared his interests to Fifty Shades of Grey.  This raises the obvious problem with associating an entire sexual minority and subculture with a character who undertakes things like emotional abuse, coercion and stalking.  It also illustrates the need to have more open, honest communication about it.  As long as BDSM is kept under a cloak of secrecy and taboo, it remains possible for it to be poorly characterized by bad fiction — and by extension, allow people with predatory tendencies to use it to rationalize their behaviour.

Entitlement is a very gendered discussion.  While it’s conceivably possible for it to flow the other way, entitlement in practice is by far a male-favouring phenomenon.

Probably fittingly, Fifty Shades of Grey provides an excellent example of this.  One has to wonder how the novels would have been received if they pivoted around a powerful woman with obsessive control issues, manipulating and intimidating a young man.  Even if it had depicted a respectable, ethical dominant woman engaging in a fully consensual and loving relationship, would the novels have been such a commercial success?  When a person starts looking into it, in fact, virtually every BDSM-themed work of fiction that has achieved contemporary mainstream success has centered around a power exchange which has been gendered with a male dominant and female submissive… despite the variety that exists in reality.  The Story of O, Secretary, L’Image, 9 1/2 Weeks, The Night Porter, the Sleeping Beauty books… the only ones that achieved commercial success while deviating from the script were Exit to Eden, and the over-a-century-old Venus in Furs.

In kink circles, power exchange is independent of gender, and there’s no gender which is “naturally-born” to dominate or “meant” to submit.  But the general public isn’t interested in that diversity.  Aside from the fetishistic image of the dominatrix (possibly exactly because the latter is challenging), BDSM is portrayed with male dominance and female submission as the primary palatable gendered permutation.

And that is because it’s familiar.  The manipulation and animalistic sex found in Fifty Shades of Grey is not altogether very different from the rough sex scenes found in mainstream novels and cinema.  But the problem extends beyond mere sex.  It is a power exchange — though not conscious, not consensual, and not negotiated — which runs as an undercurrent throughout our daily lives and throughout our world.

And that is how someone can walk into a meeting and be reportedly confident that his employers will see everything as consensual:

At that meeting, a lawyer for Mr. Ghomeshi presented two people from CBC management with texts, e-mails and photos of the radio host’s sexual encounters. The evidence was intended to demonstrate consent, a point Mr. Ghomeshi would later stress in a statement: “Everything I have done has been consensual.”

But the CBC managers were taken aback, and their views on Mr. Ghomeshi’s conduct changed instantly. What they saw, in their opinions, was far more aggressive and physical than anything they had been led to believe during months of discussions.

So what next?

The positive thing that can come from events like this is that they spur discussion.

One important discussion that has begun centers around why women are afraid to report rape, the need to support women who report, and the institutional barriers to reporting, investigation and conviction of rapists.

Another discussion needs to be about male entitlement, and the privilege that makes it invisible.  Gender-based violence does not happen because of low reporting, disbelief, or institutional barriers.  Those are the end-products of something deeper.  It happens because there is a persistent and unconscious sense of ownership and entitlement that still makes gender-based violence seen as excusable, or “normal enough.”

And although people might not be eager about this thought, Jian Ghomeshi can even be a part of that discussion, too.  Maybe someday, he could become a powerful voice on the topic.  But that will first mean needing to realize, admit and take the time to become absolutely clear about where he failed.  There is no more room for assumptions or skipping details.
(Crossposted to Rabble.ca)

On conscience-based medical exemptions

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

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

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

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

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

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

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

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

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

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

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

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

(Crossposted to Rabble.ca)

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

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

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

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

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

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

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

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

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

The Poison Pill

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Crossposted to The Bilerico Project)

C-36: Conflating sex work with human trafficking

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

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

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

Conflating sex work with human trafficking

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The rescue industry

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

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

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

A matter of advice

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

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

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

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

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

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

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

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