Archive for the ‘ Social Justice ’ Category

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)

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