Archive for the ‘ Transsexual ’ Category

Free speech, and the cruel shackles of empathy and mutual respect

jordanpeterson2

In Canada, we tend to value freedom of speech very highly, and it’s often said that the best way to counter objectionable speech is with more speech.

That’s the first thought that crosses my mind in the case of U of T professor Jordan Peterson, who declares in a series of YouTube videos that he will not honour trans* peoples’ chosen pronouns, and opposes trans* human rights protections, all in the name of combating “political correctness.”

Of course, that would be an ideal world. In the real world, it’s still not that unusual for discussion of trans* issues to devolve into a “balanced” debate between pro- and anti-trans* academics over whether they exist at all, without any annoying context like actual trans* people being present to discuss their lived experience of, well, existing.  In the real world, there are real problems about who gets to speak, and how widely they can be heard… and the marginalized are often not given much voice to matters that affect — and are specifically about — them. In fact, the established and prolific voices in today’s media are more often quick to reject attempts to “inflict” change, or energetically create a lopsided portrait.

Speech is not a truly universal and equitable thing in the first place. Rather, it is something that is dependent upon access to favourable platforms, and is usually pre-emptively muddied by characteristic value judgments made about the speaker’s class, gender, race, etc.

Nevertheless, we strive for it as best we can. And in doing so, we arrive at the next irony: the very act of protesting ignorance with speech becomes itself heralded as evidence of censorship — as if the only way one’s speech can be truly free is for everyone else to remain silent.

The outcry and protest of ignorance [edit: example removed, was based on bad information – M] is speech, too — that of the protestors.  But in a disparate society, privileged speech is defended, while protest of it is often minimized, marginalized and dismissed as rowdiness, whinging, totalitarianism (!), censorship, and noise.  It becomes: “a little free speech for me, and a little shut-up-and-take-it for you.”

But let me back up for a moment.

Jordan Peterson is a University of Toronto (UofT) psychology professor who began his rants — especially about, but not limited to, trans* people and a “radical leftist ideology” — in late September, saying from the beginning that he felt he could face consequences, and even feared government or university reprisal because of existing human rights and hate speech laws.  He told Postmedia:

“I think (Bill C-16) risks criminalizing discussion about aspects of human sexual behaviour and identity that we need to discuss,” said Peterson, explaining that there are layers to C-16 — the biology of sex, gender identity and gender expression, for example — that could cause problems down the road.

One of his top stated concerns has been with the inclusion of trans* people in existing hate crimes legislation. The thing that people forget about this when it pertains to speech, though, is that the law has already been tested and shown to apply only exceedingly sparingly. If Bill Whatcott’s homemade but mass-distributed “anal warts” flyers equating LGBTQ people with pedophiles, and lyrical invitations to “kill the homosexual” skirt the edges of hate speech — some permissible and some not — then Peterson probably has nothing to worry about. Speech can indeed be hateful, and yet still not be legally actionable as hate speech.

But given that he seems only (or at least primarily) worried about human rights and hate crimes legislation when it pertains to LGBTQ people, one has to wonder if the concerns are cover for fears about the growing acceptance of trans* people in society.  He stated from the beginning that he will not use non-binary pronouns for other people, even if they request that.  He also said in his first video that he is “scared by the people behind the doctrines,” and attributes them to a radical Marxist ideology (reminiscent of the “cultural Marxism” panic making the rounds among social conservatives). He even compares the latter to Naziism, because of what he considers “murderous” and “Marxist” policies around the world.

Peterson frames his views in an academic and perhaps libertarian perspective, rather than a religious perspective, but he has been enjoying the support of religious conservatives.  This is probably because his views are quite compatible with the right-wing narrative that accepting and acknowledging trans* people as they need to live is (as enunciated regularly at LSN) a “disservice” and “false compassion because it’s not true.”

Peterson’s remedy to all of this dreaded political correctness — and what he calls upon listeners to help him with — is to propagate a “No PC” sticker campaign across the campus, and beyond.

The response to his videos has been mixed, with fierce supporters and opponents.  It has reportedly spawned threats, and affected some students’ class attendance.  In recent days, personal information about trans* students was circulated in far right subreddits, and protesters were nearly overwhelmed by an angry mob that allegedly included neo-Nazis.  This puts the University of Toronto in a quandary, as calls for reprisal — including possibly firing Peterson — have arisen.

From my perspective, reprisals like firing are not really a preferable end goal. We do value freedom of speech in Canada, after all — especially in academic settings — so there is that kernel of validity, even if Peterson’s speech is disrespectful or hateful. He’s entitled to his opinion, and also to be a jerk about it, on his own time.  Restrictions on freedom of speech are too often used to oppress minorities rather than people of privilege, anyway — much like the “homosexual propaganda” ban in Russia, which conservatives are still trying to figure out how to lobby for in North America.  It’s that extra step that Peterson wants to take it with students and colleagues which makes the question particularly difficult.

When I say this, though, it’s also partly because I’m an avid reader of social conservative media, and understand the undercurrent of persecution narrative activism. It’s why I can recognize what likely motivates someone who — without anyone ever asking him to respect trans* people in the first place — took it upon himself to loudly and energetically pursue free speech martyrdom anyway.

And personally, I see no value in giving it to him. Peterson’s actions — whether deliberately or by coincidence — are destined to place him in a growing collection of social conservatives who self-immolate for a few moments of anti-LGBTQ fame. It’s become trendy to seek a place on the Kim Davis speaking circuit, alongside Fundie cake bakers, and the twice-suspended Alabama Chief Justice who tried to singlehandedly overturn marriage equality in the United States.  Free speech martyrdom is also Ezra Levant’s entire schtick (which he’s still trying to parlay into a media network), so it also has just as valid and active a presence in Canada outside of overtly religious circles.  Whining that someone’s “special right” to dignity and equality is trampling your perfectly ordinary right to discriminate seems to make you a far right folk hero, these days. One of the end objectives of this, of course, is to insert a special religious exemption in human rights laws, so that people can practice their faith by refusing to sell to, hire, or otherwise co-exist with heathens (I might have got the precise wording wrong on this, because I don’t remember the particular scripture where Jesus commanded his followers to willfully disrespect and refuse to do business with sinners — I keep getting hung up on the “love one another” and “give unto Caesar” parts, for some reason).

Anyway, free speech martyrdom will allow Peterson to play hero… or at least until some other dupe comes along. After all, the whole value of the Kim Davises and Melissa Kleins to conservative activists only lasts as long as they’re useful to the two legal groups (Alliance Defending Freedom and Liberty Counsel) trying to etch anti-LGBTQ discrimination into American law, plus the allied think tanks, religious organizations and media outlets that are parasitically fundraising off both their successes and their failures. The Kleins, for example, recently closed their bakery, ruined because they thought that refusing to do business with a lesbian couple was a noble idea — and now they’re almost forgotten, except by the vaguely-phrased legend of the cake bakers. In that circuit, the fate of someone like Jordan Peterson is irrelevant.  The point of beatifying the speech martyrs is to entice more dupes into creating more situations that help build a narrative which frames LGBTQ peoples’ rights to live, work and do business as automatically and inherently persecuting to people of faith… something that Peterson’s firing would fit into just as beautifully as any technical victory he might (though it’s a longshot) find some way to score.

Either way, giving Peterson the glory he seems to seek really only feeds an ongoing anti-LGBTQ political tactic — even if deceptive — and gives it power.

Yet, there does have to be some form of limit. There’s no denying the destructive effect of cumulative aggressions and microaggressions. It’s one thing to be told by someone that they think you’re deluded and that they refuse to respect you. It’s quite another to be told that in billionuplicate, at every turn, by several people you don’t know (and even worse: some you do), without you ever having done anything to warrant the hostility. If you pay attention to news related to trans* people, you know that stories of suicides due to bullying and harassment arrive on a weekly basis… and that’s only the reported instances.

Because as valid as the need to protect free speech is, it is also very often weaponized, and used to gaslight entire communities that just want to be able to participate in society and be accorded the same dignity and respect as anyone else. It’s used to minimize them, tell them they ask too much, and shame them into going away — back into their closets would be just fine, for example. Remember what I said about free speech in the real world being often a one-sided or lopsided thing.

But where to draw the line on hateful speech is almost impossible to determine. It’s easy to limit speech in cases of libel and direct harassment or incitement. Cumulative hatefulness, though, is difficult to realistically pin on an individual, especially given that an individual doesn’t always intend the hostile fallout generated by their supporters or the like-minded. I don’t know that it can be done legislatively, except in extreme and / or intended instances.

What has to happen is a mass awakening, and a mass rejection of ignorance — and unfortunately, the pace of that kind of change is glacial. Of course, mass backlash will still be framed as persecution and censorship, but it will be better recognized widely as a reasoned response to bigotry.  And that takes time and awareness… and continual revisitation.

And if there is no clear legislative solution, then there’s not a lot of guidance outside the court system, either. So I understand the position this puts the University of Toronto (and potentially the Ontario Human Rights Commission, if it came to that) in… particularly with the issue of pronouns.

The thing to keep in mind about pronouns is that deliberately misgendering someone is itself an act of hostility — an act of asserting that you know better than someone else who they are, what they need and what their life experiences mean. It’s putting your inconvenience of having to adapt ahead of the reality of their entire lives. It’s not just about invalidating one’s choice of pronoun — it’s about claiming the right to authoritatively invalidate everything that they know about themself(/ves)*.

[* And if you paused for less than five seconds to look at that, understood it — however awkward that pronoun might have looked — shrugged and moved on, then congratulations: you’re far better able to cope with gender neutral and / or singular “they” pronouns than a UofT prof!]

Allowing Peterson to speak his opinions about “gender ideology” is one thing. Having him publicly vow to deliberately antagonize and disrespect students and other faculty members is quite another.  And as the increasing tensions and threats over the course of his campaign have shown, sustained, hateful free speech can have serious consequences.

So what is to be done?  The best scenario would be if Peterson would recognize where he has stepped beyond speech into deliberate antagonism and borderline incitement, maybe apologize, or at least leave things be, but that’s obviously not going to happen.  Probably, the only result that both he and trans* advocates and supporters will be satisfied with is some form of free speech martyrdom, in the form of firing or some lesser kind of censure.

And this will inevitably once more feed the conservative persecution complex, and the dreams of a Trump-like saviour to free them — in the words of the inimitable Samantha Bee — “from that prison, and the cruel shackles of empathy and mutual respect.”

(Crossposted to rabble.ca)

Canada’s forthcoming “drop your pants” trans* blood donation policy

In addition to reducing the required wait time between having sex and donating blood to one year for gay men, Canadian Blood Services is poised to release its first-ever guidance on how CBS personnel should respond to potential trans* donors: if it’s in you to give, then drop your pants.  While the policy has not yet been released officially, it was leaked to Buzzfeed, and is being corroborated by the health organization’s representatives on Twitter.

Oh, you don’t have to literally drop your pants. Canadian Blood Services doesn’t actually want to see your junk — they just want to know what’s there. Because that’s not invasive at all.

That is, I assume that no one is checking your junk. But it depends on whether voluntary information is sought by CBS, or some other proof. Identification doesn’t help verify genital status, because most provinces allow ID changes prior to surgery.  Requiring surgery proved to be discriminatory, prohibitive and created significant hardships for lengthy stretches of trans* peoples’ lives, if not indefinitely. [There is an interesting historical fact about that: surgery-based ID policies followed a precedent set by Sweden, where lawmakers in the early 1970s deliberately chose that benchmark, because it would ensure that sterilization occurred.]

The reasoning to the new CBS policy is that if your partner is male and you’re a pre- or non-operative trans* woman, post-operative trans* man, or a not-medically-inclined-at-all gender diverse person who has a penis, then CBS considers you to be a man who has sex with men (MSM). Besides seeming very reminiscent of ultra-conservative judgments about what constitutes a “real” woman or man, it also makes presumptions about one’s partners — i.e. insisting that a straight male who dates a trans* women is actually gay — and other judgments that are potentially shaming in nature.

It does raise some questions, though. For example, why would it take a year following genital surgery to become safe enough for trans* women with male partners to donate blood (by contrast, genital surgery would be immediately disqualifying for trans* men with male partners)? And if a potential trans* donor has slept with trans* partners, does the surgical status of everyone need to be disclosed?

The change follows a similar policy enacted for gay men in the U.S. last year, although that policy honoured trans* peoples’ own self-identification and considered their self-disclosed sexual history, rather than demanding intimate medical information.

Incredibly enough, this is actually an improvement over the previous situation with Canadian Blood Services, in which the ability to donate blood was mostly dependent on the subjective decision of clinic staff, and often saw trans* people of either and / or neither gender automatically classified as “MSM” — and sometimes, the sex of their partner(s) or whether they’d been sexually active at all were considered altogether irrelevant details.

Probably nothing better illustrates just how arbitrary and regressive abstinence-before-donating policies and adherence to narrow-sighted MSM classification are.  The change is also very poorly-timed, following the shocking massacre at Pulse Nightclub in Orlando, Florida, which saw the community hardest hit by the violence — predominantly Latinx LGBT people — unable to donate blood to help their loved ones and siblings-in-spirit (despite some misinformation circulating at the time).

Now, to be entirely fair to the Canadian health agency, this mode of thought didn’t originate with Canadian Blood Services.

For example, “Men who have Sex with Men (MSM)” terminology originated with the Centers for Disease Control (CDC) and other early public health organizations. It was ironically intended to be more inclusive than only focusing on gay men, but had the (theoretically unintended) result of invalidating trans* peoples’ gender identification. For the longest time, though, international health NGOs resisted acknowledging the existence of trans* people, and stubbornly insisted the classification was adequate… which only reinforced the impression that the invalidation was deliberate.

In fact, “MSM” language, thinking and subsequent HIV activism and education (aside from whatever mitigation occurred at the grassroots level) has a history of alienating trans* people, and confounding safe sex initiatives, outreach and data-gathering among trans* populations — a tragic situation for a community in which infection rates remain significantly high.  Even LGB(t) organizations perpetuated the problem, although this gradually improved around the start of this decade. [I first wrote about this (albeit with imperfect terminology, too) back in 2010, after being excoriated by an LGB(t) organization representative collecting data, who launched into a tirade saying that by declining to push a horribly-phrased survey on trans* people, I’d be “‘guilty of the murder of’ every transsexual woman who perished from HIV who might have benefited from the study.”  Yes, things have not always been amiable.]

Canadian Blood Services came into being specifically because of the scandal raised in the 1980s and 1990s resulting from screening failures of NGOs like the Red Cross during the AIDS crisis.  Its policies are directed by Health Canada.

Being fair to CBS also requires one to acknowledge a few further facts:

  1. There is a short window of time (roughly a couple of weeks in most cases, but sometimes up to a few months) in which HIV still evades detection, and
  2. Penile-anal intercourse (PAI) remains a high-risk mode of transmission.

Of these, penile-anal intercourse — the premise on which the “MSM” policy is premised — notably also occurs with some frequency among heterosexual partners, while not all gay men engage in it.  On the other hand, targeting specific communities instead of activities has created an inherent bias, and allows homophobic and transphobic organizations and figureheads to perpetuate stigma.

The number of sexual partners one has had in the previous year is also a crucial factor, which “MSM” screening on its own fails to account for.

Before forming government, the Liberal Party had petitioned to end the blood donor deferral policy altogether. When the one-year deferral policy for men was released, Health Minister Jane Philpott was quoted as saying:

“The desire is to be able to have those deferrals based on behaviour as opposed to sexual orientation.” 

This statement, of course, is the right direction.

The new practice, on the other hand, is destined to be an embarrassing anachronism.

As incremental as it may be, the policy that has been issued for (non-trans*) gay men fails, exactly because it continues to fixate on who is donating, rather than what their specific sexual history and risk factors are.  And when the attempt is made to extend that same policy to trans* people, its shaky logic disintegrates altogether.

(Crossposted to rabble.ca)

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?

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)