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Free Speech, When The “Debate” is You (and You’re Not Invited)

Shout: “Help, I’m being silenced!”

There’s a duplicitous game of sleight-of-hand that is taking place in discussions about freedom of speech in academia and the public square.

Here’s how it works: at first, a person fishes for controversy by saying several things that they know will offend people.  If this garners enough attention, then the process recurs organically — say, whenever a politician wants to reference the controversy as a coded dog whistle to their base, or when a teaching assistant replays a recording in class because she thinks the discussion is interesting and challenging.

And the moment the people targeted by that discussion get angry and protest, they’re described not as being upset about the content of what is being said, but rather their protest is reframed as opposing freedom of speech itself.  Whether you see that as accidental or deliberate probably depends on how cynical you are about the whole issue.

And often in their anger and rush to respond, that target group will unwittingly play along and demand things that create the appearance of doing exactly that, rather than directly challenging the offensive comments (though to be fair, it’s incredibly insulting to expect people to participate in a debate when said debate is about whether they exist and should be treated with dignity).

Media, meanwhile, doesn’t have much incentive to challenge that narrative, since controversy sells — and the simpler and more iconic that controversy can be made, the more effective it becomes at drawing in readers.

That’s why even when it’s acknowledged that the protesters are also exercising freedom of speech, it can be made to sound like a perplexing situation in which “counter-protesters use free speech to protest free speech.”  It makes the protesters sound idiotic, reframes their protest and demands as unreasonable, and their actual objections are erased entirely.  It also helps validate manipulative messaging that transforms a group of people who are concerned about their human rights and their acceptance in society into some vague and deceptive “agenda” that is maliciously transforming our nation in ways that no one actually ever has to clarify or substantiate — because by this time, the people doing the framing already control the debate completely.

This also makes it possible to recast the substance of what is being debated into something that is so delicate and fragile that it shouldn’t ever be subjected to any scrutiny or challenge whatsoever, lest free speech itself be irreparably harmed.  It redefines free speech as speech-without-consequence, becoming “a little free speech for me, and a little shut-up-and-take-it for you.” The intended result is to bring about a “discussion” which is apparently about you, but ideally doesn’t involve you.

This is how freedom of speech — a principle which Canadians rightly value highly — can be weaponized. It’s an effective quandary to dupe people into, seems to work every time, and Canadian social conservatives love and have perfected it.  In fact, it’s become a lucrative source of income for some of the better-known personalities who use it (albeit with some hypocrisy).

Such is the nature of University of Toronto professor Jordan Peterson’s battle to deliberately disregard trans* peoples’ requested pronouns — he was so adamantly determined about it, in fact, that he urged the Senate to oppose a law to extend basic human rights protections to trans* people, for fear that he might be obligated to call someone “ze.”  While there are similar debates being engaged in regarding Islamophobia, immigration and abortion (and LGBTQ human rights are simultaneously being reconceptualized as religious persecution), trans-bashing continues to be a favourite and effective political strategy.  Apparently we’re today’s lucrative low-hanging fruits.

And so, the “Debate™” manages to fluctuate from the question of whether trans* people deserve to be dignified as the people they claim to be, to whether political correctness creates a toxic environment on campuses — the moment one is challenged on the former, one hides behind the latter and plays the victim.

Of course, you experience the debate a little differently when the “Debate™” is you.

Peterson’s debate arose from his objections to respecting trans* peoples’ choice of pronouns. In the process, he casts dubious aspersions on the whole question of trans* identity (and, if you listen long enough, chalks it all up to a Marxist / feminist conspiracy to destroy academia and society).  If you’re willing to plumb it to any depth, it quickly becomes a discussion about whether trans* people should have their identities respected… and by extension, whether they have any right to dignity.  You can’t have a debate like that without getting a lot of angry speech in response, especially if the people at issue don’t typically have a voice in that debate (or at least not one that is given any weight or credibility).  Even if Peterson himself isn’t intending to make trans* people the issue, it’s certainly where his proponents quickly go.

So, that’s the context that needs to be kept in mind.  Out of a sense of decency, we don’t debate other groups’ right to dignity, or argue about whether someone from a different characteristic class should be dignified as “Mr.” or “Ms.” (which is itself a relatively recent development in language). I’m sure if the debate was about whether clinical psychologists are true academics or just “mentally ill” (playing on the same negative and stigmatizing attitudes prevalent in society about mental health issues that anti-trans* speakers typically exploit), Peterson would find it very insulting very quickly — especially if he kept having to contend with those arguments constantly.  So to have that debate without remembering the responsibility to approach it with empathy, care and to elevate the voices of people being talked about… that is always going to be trouble.

As an example, let’s look at one snippet from the extended discussion about the Peterson controversy, courtesy of Rebel Media’s Ezra Levant:

“I have no patience for the predators.  For the sex offenders who just want to sneak into a women’s jail rather than a men’s jail. Makes sense: if you’re a sex offender, sometimes you get killed in a men’s jail — but you get into a women’s jail, well, now you get to be the rapist.  I’m against the predators in the Girl Guides.  Don’t foist yourself into a girl’s cabin at camp. I’m against the cheaters who want to compete in women’s sports leagues instead of men’s sports leagues. I’m hardline on that stuff. 

“But for the truly troubled men out there — and it’s almost all men — I have concern and worry and sorrow, and I don’t want them to kill themselves.  I want them to get help. Don’t cut things off your body. Being straight, being gay, whatever, do not cut yourself up.

“The American Psychiatric Association is using the dead bodies of these suicides as political weapons. So is the New York Times. And frankly, politicians like Justin Trudeau and Hillary Clinton, and the politicians at Wilfrid Laurier University are too.  If you care about transgender people – especially youth — stop normalizing their troubles. Stop accelerating it. Stop coaching it. Stop pushing them down the road to what the American Foundation for Suicide Prevention says is a death sentence. Just stop it. And no, it is not transphobic to say so. It’s the opposite, actually…”

If Levant isn’t equating trans* women (who he essentializes as men) with sexual predators, then he at least certainly doesn’t see a need to make any effort to differentiate the two.  He still equates being trans* with mental illness (which in addition to invoking stigma also deliberately suggests that trans* peoples’ experiences are not “real”), and displays no understanding whatsoever about what gender dysphoria is (nor any apparent interest in finding out).

In his accompanying article, Levant goes on to warn about “insane attacks on society… done in the name of trans rights,” claims that Wilfrid Laurier University (WLU, which reprimanded teaching assistant Lindsay Shepherd for playing a recording of Peterson, and then subsequently apologized) has a “massively-funded Transgender Office,” and suggests that there weren’t any trans* people attending WLU (emphasis his) “until it became cool — free stuff, special rights, lots of attention.” Oh, those lazy socialists: exceedingly wealthy and powerful, yet totally unambitious until there’s free stuff going around. And I’m not even going to dignify his “not transphobic” nonsense.

But he goes further to allege that acceptance, accommodation and medical transition are responsible for an extremely high rate of suicide among trans* people.  Levant appears to refer (but does not link) to a 2014 report that the American Foundation for Suicide Prevention co-authored (Ann P. Haas and Philip L. Rodgers) with UCLA’s Williams Institute (Jody L. Herman), entitled Suicide Attempts among Transgender and Gender Non-Conforming Adults: Findings of the National Transgender Discrimination Survey, documenting the effect of stigma and transphobia on escalating suicide ideation.  If this is indeed the report that Levant is referring to, then he is certainly mischaracterizing their findings.

So in other words, Ezra Levant is so willfully blind to the stigmatizing effect that attitudes like his have on trans* people (or as he dismissively minimizes whenever it comes to human rights issues, “hurt feelings“) that he has to twist the high incidence of suicide back into his “illness” paradigm by asserting that all of their troubles would be solved if they would simply stop being trans* — which is an easy expectation to have when you start from a premise that the existence of trans* people has no basis in reality whatsoever.

It should be no surprise to anyone that trans* people find the “Debate™” to be triggering and toxic.

Of course, Ezra Levant might be a bad example.  Social conservatives aren’t usually as candid (or as classless) as Levant, and instead hide these views in coded language about sinister, ideologically-driven social agendas, a nebulous transgender “craze,” totalitarianism (as if trans* people had that much power!), political correctness, “cultural Marxists,” and persecution by “compelled speech” (which — on a legal level, at least — is factually incorrect, regardless of what overzealous professors at WLU reportedly told Lindsay Shepherd).

From his argument before the Senate against trans* human rights protections, Peterson himself makes it clear that he sees gender identity as as something that cannot be substantiated scientifically, and therefore as something that should not be dignified by giving it any credence:

“It’s incorrect in that identity is not and will never be something that people define subjectively because your identity is something you actually have to act out in the world as a set of procedural tools, which most people learn – and I’m being technical about this – between the ages of two and four. It’s a fundamental human reality. It’s well recognized by the relevant, say, developmental psychological authorities. The idea that identity is something you define purely subjectively is an idea without status as far as I’m concerned.

“I also think it’s unbelievably dangerous for us to move towards representing a social constructionist view of identity in our legal system. The social constructionist view insists that human identity is nothing but a consequence of socialization, and there’s an inordinate amount of scientific evidence suggesting that that happens to not be the case. So the reason that this is being instantiated into law is because the people who are promoting that sort of perspective, or at least in part because the people promoting that sort of perspective, know perfectly well they’ve lost the battle completely on scientific grounds.

“… the social constructionist view of gender isn’t another opinion; it’s just wrong…. 99.7 per cent of people who inhabit a body with a given biological sex identify with that biological sex. They’re incredibly tightly linked.

“If you can’t attribute causality to a link that’s that tight, you have to dispense with the notion of causality altogether. Of the people who identify as male or female who are also biologically male or female, the vast majority of them have the sexual preference that would go along with that and the gender identity and the gender expression.

“These levels of analysis are unbelievably tightly linked, and the evidence that biological factors play a role in determining gender identity is, in a word, overwhelming. There isn’t a serious scientist alive who would dispute that. You get disputes about it, but they always stem, essentially, from the humanities. As far as I’m concerned – I’ve looked at it very carefully – those arguments are entirely ideologically driven. It’s a tenet of the ideology that identity is socially constructed, and that’s partly why it’s been instantiated into law, because there’s no way they can win the argument but they can certainly win the propaganda war…”

I don’t know about you, but to me, that says that if there are so few trans* people and they can’t prove their existence on a scientific level that Peterson is willing to accept, then he shouldn’t have to accept their existence or treat them as anything other than deluded people.

For what it’s worth, to make this argument, Peterson has to disregard decades of medical case histories which have consistently demonstrated two key points: 1) that suppression and reparative therapies are extremely harmful to trans-identified individuals, and 2) acceptance and accommodation alleviates distress to the point that it (social stigma and circumstance aside) allows them to reach a kind of “square one,” from which they hopefully move on to happier and productive lives.  There is some discussion about the medical study of gender identity here, here, here, here, and elsewhere, but the bottom line is that the overwhelming weight of case histories has been so compelling that the American Psychiatric Association, American Psychological Association, and all other major medical professional organizations (with the lone exception of an astroturf reparative therapy advocacy group with the official-sounding name of the American College of Pediatricians) call for the accommodation of, medical access for, and acceptance of trans* people.  So even though you can’t circle someone’s gender identity on a radiograph, the medical evidence is there — and when it comes to human rights, also isn’t the point.

Indeed, it’s become a common adage for trans* folk to say that we only hear about ten “regret” stories a year, and nine of them are Walt Heyer (although since the backlash to trans* human rights protections arose, that ratio has become more like 70 out of 80).

With all of that said, freedom of speech is a critically important part of Canadian life — and not just in academic settings.  The people who are first to lose it are typically those who are marginalized, those who never really had much visibility, or a public voice, or access to platforms to speak out in their defense. Whatever else they may feel about it, trans* people must take the side of freedom of speech, because their continued existence and eventual acceptance depends on it.  What is critically important, then, is to seek true freedom of speech, which as Abigail Curlew points out is not a neutral proposition that all parties come to with equal enfranchisement:

“From a sociological perspective, our society suffers from extreme stratification along the lines of race, gender, sexuality, and class. Your identity shapes where you might be located within society’s opportunity structure. Where you were born and what body you were born with matters and has a significant impact on your material and symbolic wealth.

“For transgender folks, this positions us in a precarious reality. A great portion of Canadian society doesn’t recognize trans folks as real persons. And when they recognize us, it is often filtered through crude stereotypes that emphasize perversion or mental illness. The point is, we must go to great lengths to justify and defend our very existence in everyday situations.

“… The pressures of daily transphobia and cissexism push us back into the closets where we are unable to express our voices. The “freedom of speech” of those who hold bigoted views silence the freedom of speech of those they target…”

In the end, the very reason that opponents use free speech as a weapon is because they feel threatened.  This is because in recent years, trans* people have demanded to have a voice in the cultural debate, have increasingly been given that opportunity, and have been compelling when they are heard. Indeed, by telling their stories and having the audacity to assert themselves as authorities on their own experiences, trans* people have already changed the actual debate, making it necessary for opponents to use some twist of logic to re-establish a hegemony that uses the language of academia — couched in theory that can be misguided or at times even deceptive — but removing the authority of lived experience, to once again justify trans* exclusion from that discussion.

This, then, is the solution for trans* people: to keep speaking their experiences, and for there to be continued platforms available for them to do so.  Protest, yes (with an effort to be clear what is being protested and what non-censorious remedy is being sought), but do not waste an overly unnecessary amount of energy on them (especially since that draws undue attention to them).  When trans* people are considered authorities about themselves and are prioritized, then opponents’ collective stance against acceptance begins to be recognized as archaic.

For people like Jordan Peterson and Ezra Levant, the thought of this is apparently terrifying.

(image source: Adobe Stock, with modification by author)

Crossposted to rabble.ca

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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)

Conscience, Human Rights, and a Kentucky Clerk

KimDavisSo inevitably, a blog that’s all about religious freedom would need to comment on the ongoing troubles of Kentucky clerk Kim Davis, and her stand against issuing marriage licenses to same-sex couples.  I didn’t want to rush on that right away, because I wanted to do so thoughtfully, and dig underneath the impulsiveness and spin of both right- and left-wing media… and also add some context from the experience of a Canadian, living in a nation where marriage equality happened back in 2006 without a “Christian genocide” (I’ll discuss that sort of phrasing in a later post) occurring.

Because the “conflict between LGBT human rights and religious freedom” is actually remarkably un-complicated, when you drill down to the bottom of it.

First, the particulars.  Kim Davis is the elected (2014 — as a Democrat, ironically) clerk in Rowan County, Kentucky.  After the Obergefell v. Hodges U.S. Supreme Court ruling, she chose to defy a U.S. Federal Court order which required her to issue marriage licenses to same-sex couples.  Saying she was acting “under God’s authority,” she was jailed for contempt of court, on September 3rd and may face charges of official misconduct.

Here are some of the points that her legal team, Liberty Counsel, has made on her behalf:

“Davis only asked that the Kentucky marriage license forms be changed so her name would not appear on them. She would record any license without her name affixed. Marriage licenses remain in county records permanently. Davis said, “I never imagined a day like this would come, where I would be asked to violate a central teaching of Scripture and of Jesus Himself regarding marriage. To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience.”

“Before the U.S. Supreme Court issued its opinion in Obergefell on June 26, 2015, 57 clerks, including Davis, wrote a letter to Kentucky legislators during the regular session, pleading with them to “get a bill on the floor to help protect clerks” who had a religious objection to authorizing the licenses. The Kentucky Clerks Association also recommend that the names of clerks be removed from the forms.

“… Kim Davis does not hate homosexuals or lesbians, as she explained: “I have no animosity toward anyone and harbor no ill will. To me this has never been a gay or lesbian issue. It is about marriage and God’s Word. It is a matter of religious liberty….”

“… The Supreme Court did not change Kentucky’s marriage law or its forms, but invalidated the legislation limiting marriage to opposite sex couples…”

There are a few other points at that link establishing her God credentials, and discussing her divorces, which in my opinion have been (perhaps fairly, but overblown) touted in media as showing her own hypocrisy.  Those points are irrelevant to the specific discussion here.

Liberty Counsel’s statements are a bit dubious.

Davis not only refused to sign and provide the licenses: a major part of the contempt ruling was because her deputies were not allowed to issue the licenses, either.  (Following Davis’ jailing, 5 of 6 subsequently have started issuing licenses, but without Davis’ signature)

Additionally (this is hinted at in one of the above points, but not made clear), the licenses may not be valid without her signature.  Davis has in fact argued that they are not.  Admittedly, this isn’t clear — a judge questioned about the discrepancy only remarked that couples getting licenses in Rowan County do so at their own risk — but it’s certainly likely that Liberty Counsel or another right-wing group would attempt to contest the legality of those licenses, at some point.  Either way, Davis is in essence demanding the right to deny all licenses from her county office, altogether, which goes beyond the jurisdiction of personal conscience.

There are nuances, and this is no exception.  I’ve touched on the first two, and there are also others:

  • As mentioned above, she used her power to disallow her deputies to issue the licenses;
  • Also mentioned above, it’s not simply a question of a refusal of a signature, but also an attempted refusal of legal standing of the licenses;
  • Davis is a public employee, and responsible to all citizens of the State of Kentucky;
  • As a public employee, she is subject to the legal principle of the separation of church and state;

But a crucial point, independent of all of the above, is probably that in any dispute centering on a conflict in rights, there should be at least some effort to accommodate.  All of the above assumes that LGBT human rights cannot be accommodated at all, without automatically invalidating the rights of Christians to live their faith.

But it’s not an either/or proposition.  There is a key flaw in the way this is framed.

In Canada, the conscience debate has had some instructive resolution in the medical field (although there are occasionally attempts to resurrect it).  Many provincial Colleges of Physicians and Surgeons across the country have some form of policy that allows medical professionals to decline to participate in processes that violate their conscience, provided that a timely referral is made and the patient is able to access the medical care they need, in a timely manner.  “Timely” is somewhat relative, and the rules don’t always work well (honestly, sometimes the process fails and care is denied or unreasonable obstacles are created), but it is at least a formal acknowledgement that there is a duty to accommodate, in a way that is relatively equitable for both parties.

What is instructive is that in Kim Davis’ very public demand for her right to freedom of religious conscience, this is not even a question.  The closest it ever came to being addressed at all was when some supporters claimed it’s a reasonable accommodation to require county residents to drive to a neighbouring county to obtain their licenses.  It’s not hard to recognize that that’s actually an undue hardship.

As someone who has advocated for trans* people and know how the Colleges’ policies fail in Canada, I don’t consider theirs an ideal solution.  However, the point is that there could be some form of middle ground, even if imperfect.  The State of Kentucky could amend their laws to ensure the validity of marriage licenses without Davis’ signature (to Davis’ credit, she does appear to have asked, and was ignored by legislators), and require that at least one person in the office be present besides herself who would be willing to issue them.  But among the far right, this isn’t even a discussion.  Among the far right, the objective is simply to have the right to deny licenses altogether, with no compromise being considered.

And that speaks volumes about Davis’ and supporters’ demands for religious freedom.

In closing, here’s a hint about what Davis’ supporters (and arguably perhaps puppetmasters) really feel about things:

“[Wallbuilders’ David] Barton, predictably, responded by asserting that Davis is entirely in the right to refuse to allow her office to issue marriage licenses to gay couples because “the Founding Fathers made it real clear that the laws of God are higher than the laws of man.”

“This is a law of God. Man’s law is not allowed to contradict God’s law,” Barton said, which means there can be no justification for jailing Davis because she is upholding God’s law…”

(From my sister blog, Today In Religious Freedom)

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.