On “Unalienable” Human Rights

Screen capture, launch of the Commission on Unalienable Rights

On Monday, July 8th, the U.S. State Department announced the launch of a Commission on Unalienable Rights, which is intended to rethink and reshape how human rights laws are applied around the world. This Commission was deemed necessary to ensure that “human rights discourse not be corrupted or hijacked or used for dubious or malignant purposes,” though in that founding statement, the Department failed to explain how this was supposedly happening, or who was said to be hijacking said discourse.

Reporting about this development immediately raised concerns that the Commission’s mandate could negatively impact and specifically target LGBTQ+ human rights protections, but there could be dire ramifications for reproductive rights, sex-based rights, and the rights of migrants, as well. Although the wording of the announcement is vague to a degree, religious conservatives clearly expect the project “to address concerns about religious freedom [which they feel is violated by LGBTQ+ human rights accommodations] and abortion,” at the least.

In announcing the Commission, Secretary of State Mike Pompeo rationalized that by delineating protected classes in human rights laws, “politicians and bureaucrats… blur the distinction between unalienable rights and ad hoc rights granted by governments. Unalienable rights are by nature universal. Not everything good, or everything granted by a government, can be a universal right….”

This is a common talking point among religious conservatives, who argue that human rights cannot be granted by “politicians and bureaucrats” (i.e. courts and human rights commissions), but by God alone. The given rationale for that thinking is that human rights should be subsumed under “natural law and nature’s god.” Certainly, when this Commission on Unalienable Rights was first announced at the end of May, the State Department lamented that human rights “discourse has departed from our nation’s founding principles of natural law and natural rights” – although this phrasing proved to be so transparent to media outlets that the word “natural” was absent from the Monday’s launch.

Of course, fixating on nature is a fallacious way of limiting rights to exclude the obvious intended targets. Same-sex coupling occurs in nature. Changing sexes occurs in nature. Reproductive limiting and parental choice occurs in nature (though the means can seem shocking and visceral). Polyamory occurs in nature. What doesn’t occur in nature is “one-man-and-one-woman marriage,” and life-long monogamous exclusivity is only practiced by 3 to 5 percent of mammals (including humans) – and even less so in other species.

But make no mistake: excluding classes of people from human rights law is clearly the intention. Any attempt to more narrowly define whose rights are “unalienable” and therefore legitimate is, by reflection, also an exercise in determining whose rights are illegitimate, and therefore… alienable (perhaps even in the truest meaning of that word). While the State Department denied that the Commission would address “policy questions” like abortion rights, they asserted that it would instead “attempt to ground human rights in the founding principles of ‘life, liberty and the pursuit of happiness.'” That said, the Commission’s mandate never appeared designed to address specific issues or classes, but rather to create a rationalized hierarchy or criteria through which the exclusion or trumping of disfavoured rights becomes logically inevitable – which is a bit of semantic sleight-of-hand.

When the Commission on Unalienable Rights was first announced, it was originally to be under the auspices of Princeton professor and co-founder of the National Organization for Marriage, Robert George, who reportedly drafted the original concept note and is described by peers as “revitalizing a strain of Catholic natural-law thinking that goes back to St. Thomas Aquinas.” Like the word “natural,” George is also absent from the launch, but the Commission’s roster is so overwhelmingly linked to him that its membership was almost certainly hand-picked by him.

 

The Commission is chaired by Harvard Law professor Mary Ann Glendon, the former ambassador to the Vatican and an anti-abortion activist, who served on the US Commission on Religious Freedom (from 2012-2016, with George). She is a board member of the anti-LGBTQ+ funding group, Becket Fund, and is perhaps best known for fighting on behalf of the Holy See to prevent the inclusion of abortion rights at the 1995 U.N. World Conference on Women in Beijing. She has made many troubling statements, such as: publicly condemning the Boston Globe’s expose on abuse within the Catholic Church, in 1992; referring to marriage equality as a “radical social experiment” and “not a civil rights issue, but a movement for special preference;” complaining that religious freedom is “subordinated to a whole range of other rights, claims and interests;” and calling for a “flexible universalism” in which human rights are not standardized, but contextualized according to (she quotes from the 1993 Vienna Declaration) “national and regional particularities and various historical, cultural and religious backgrounds.” In her book, Abortion and Divorce in Western Law, she clearly sees abortion as an infringement on the rights of the foetus, and no-fault divorce as an infringement on the rights of children. Glendon is also not known for compromise, going as far as rejecting a medal from the University of Notre Dame because that institution also conferred then-President Barack Obama with an honorary degree, despite the fact that he supported abortion access.

For what it’s worth, she also a hired Pompeo as a research assistant, when Pompeo studied law at Harvard.

Joining Glendon is a smorgasbord of Robert George -linked and similarly-minded academics:

• Peter Berkowitz, a senior fellow at the Hoover Institute who responded to the overturning of sodomy laws by condemning Justice Kennedy for allegedly failing “to subject the Texas statute prohibiting homosexual sodomy to ‘rational scrutiny.'” Berkowitz calls for religious conscience to be “unhampered by government coercion,” and has written several other treatises opposed to LGBTQ+ human rights.
• Paolo Carozza, a Notre Dame law professor and long-time critic of human rights laws who, among other things, advocated for a Vatican-tinged flavour of “human dignity” as a determinate for legitimacy of human rights.
• Shaykh Hamza Yusuf Hanson, an influential American-born convert to Islam and co-founder of Zaytuna College. Yusuf told religion writer Scott Korb that “I don’t want to see gay people bashed… But I also don’t want it normalized as a healthy thing for a society… I don’t want someone to say this is a normal, healthy lifestyle. It’s not. It’s pathogenic…'”
• Jacqueline Rivers, a Harvard sociology professor, and co-founder and former executive director of the Witherspoon-sponsored Seymour Institute for Black Church and Policy Studies. Rivers is an anti-abortion speaker, and GLAAD also noted that she once “insisted that marriage equality activists are undermining the Black Civil Rights movement [by demanding human rights protections], but comforted the applauding attendees by telling them ‘God will not be mocked…'”
• Rabbi Meir Yaakov Soloveichik, a spiritual leader of Shearith Israel, the oldest Jewish congregation in the US. Soloveichik argued that the legalization of same-sex marriage would lead to the normalization of bestiality.
• Katrina Lantos Swett, president of the Lantos Foundation for Human Rights and Justice. She has been pointed to as a Democrat involved with the Commission (as though she makes the project bipartisan) – but Swett is still a “religious freedom” advocate with a Mormon-leaning multifaith background, who was also on the the US Commission on Religious Freedom, along with Mary Ann Glendon and Robert George – the latter of whom reassured religious conservatives that “She was the very opposite of a partisan or an ideologue… I did not have a different vision from Katrina, and she didn’t have a different vision from me. We were the same.”
• Christopher Tollefsen, a University of South Carolina professor, senior fellow of the Witherspoon Institute, prolific religious conservative writer, and co-author of the anti-abortion and anti- stem cell research book Embryo (with Robert George). Tollefsen is a devotee of Paul McHugh when it comes to trans issues, and has argued that it is not only not possible to change sex, but also “a mark of a heartless culture” to make surgeries and affirming, non-psychological treatments available to trans individuals.
• David Tse-Chien Pan (a professor at the University of California at Irvine) and Russell Berman (a Stanford University professor and a senior fellow at the Hoover Institute) are less clear, but Pan is a critic of “liberalism” (libertarianism), and Berman (not to be confused with a writer at The Atlantic by the same name) appears to be a critic of Islam, “left-fascism” and “campus anti-Semitism,” which may refer to protests in support of Palestinians.
• Named in only some of the announcements are Kiron Skinner (State Department director of policy planning, who “ignited controversy in May for framing the contentious US-China relationship as ‘the first time that we will have a great-power competitor that is not Caucasian’”), and attorney F. Cartwright Weiland (Rapporteur), who was a Council for Life panelist, helped write amicus briefs supporting laws restricting abortion, and is a critic (in an article expounding on board chair Mary Ann Glendon’s 1991 writing about Rights Talk) of “identity politics” and LGBTQ+ inclusion in human rights.

It’s important to contextualize all of this within the current developments in the United States under the Trump administration. Catholic and Evangelical fundamentalists (who I feel are important to differentiate from other Christians, despite their sadly often successful habit of passing off their political causes as the “Christian” position) are already seeing legal successes in restricting abortion access, and expect an overturn of Roe v Wade (and perhaps even Obergefell v Hodges, which legalized same-sex marriage) by a newly-stacked conservative Supreme Court, very soon – and have been looking for directions to refocus, in order to maintain their momentum, power and following. One of these directions has been to make abortion “unthinkable,” while another has been to formalize a means for religious freedom and religious conscience to override LGBTQ+ (and other) human rights protections. A deeply biblical rewriting of human rights law could not only create a license for anti-LGBTQ+ discrimination, but also completely undermine reproductive rights and entrench vastly outdated ideas about gender roles, including theological notions like “complementarianism.” For example, ThinkProgress recently noted that if a case of the so-called “Billy Graham Rule” (of religious fundamentalist men refusing to meet with women without a chaperone) were to proceed to the rightward-shifting U.S. Supreme Court while using a “religious conscience” argument, it could very well provide the basis for a legalization of sex-based discrimination, at least under specific circumstances.

This Commission is also taking place during a severe, self-inflicted crisis of anti-immigrant policy in the U.S., which has seen detention camps with atrocious conditions rightly criticized and noted for their historical parallels (even if not necessarily identical matches to past atrocities). Religious conservatives have not simply turned a blind eye to these developments, but have actually often collaboratively helped to create rationalizations for these brutal policies (especially when it comes to Muslim migrants). In this context, and under the auspices of a government that has very clearly shown the will to dehumanize migrants and refugees and trample their rights, it is not inconceivable that this Commission is designed to provide a structure by which a lesser human status for migrants is potentially justifiable.

This Commission is also contemporary to Trump’s stated intent to decriminalize homosexuality worldwide. This inevitably brought some pushback from his religious base – but only a little, while other figures took the opportunity to try to appear diplomatic, seeking to realign the center of the LGBTQ+ rights versus religious freedom (false) dichotomy by “calling for an end to all forms of physical violence against homosexuals — but [also to] refrain from imposing the values of the sexual revolution on the rest of the world.” Although the administration’s decriminalization project appears to have been driven more by U.S. ambassador to Germany Richard Grenell than by Trump himself, it is also not irreconcilable with a mandate like the Commission’s: ending overt criminal prosecution is a far cry from supporting actual human rights protections, which are a far greater level of enfranchised citizenship, and facilitate the ability to participate in society as a whole. The Commission on Unalienable Rights doesn’t have to obliterate what it determines are “illegitimate” human rights classes entirely, in order to legalize discrimination against them – it only needs to create a hierarchy which elevates those rights that it determines are “unalienable.”

And finally, this comes at a time when religious fundamentalists have successfully engineered the illusion of several false dichotomies to create the impression that human rights create irreconcilable conflicts: of LGBTQ+ rights versus religious freedom; of personhood rights versus reproductive rights; of trans rights versus sex-based rights; of parents’ rights versus childrens’ rights (though this is often treated as though the latter are non-existent); of all human rights classes versus freedom of speech; and more. Of those, personhood rights are based on a faulty premise that an undeveloped foetus that cannot exist on its own is somehow a person, and (for the most part) the remaining dichotomies are only irreconcilable if the party that wishes to do harm to the other inflexibly insists that it cannot compromise under any circumstance whatsoever – and will do whatever is necessary to frame any particular pressure to do so as persecution.

What all of this points to is a project that appears designed to rethink human rights as a structure in which some humans can be lesser.  And this is concerning, if it becomes the template by which the U.S. proceeds to push human rights discussion on the world stage, in the coming years.

If the launch of the Commission on Unalienable Rights is any indication, terms like “natural law” may be stealthily replaced by language that is far more opaque, and carefully designed to appear as though it does not target any specific groups. But in all likelihood, it will nevertheless still prioritize things like religious conscience, “dignity” (redefined as a god-granted status that is infringed upon if we make certain life choices about sexuality, a popular theme in Catholic-based discourse on “natural law”), personhood (a dog whistle that frames the foetus as a person), and (though I have not touched on it here, but it can be seen in the battles over sex education) parents’ rights, among other characteristic themes that merit further exploration.

I am sure that we will find out soon enough.

(Crossposted to rabble.ca)

“Unthinkable”

American religious conservatives have a problem.

Riding high on their partnerships with the Trump administration and the perception of being political kingmakers, they need to be sure that they will be able to sustain their momentum for years to come. And with the newly-stacked U.S. Supreme Court making the overturn of Roe v Wade a seeming inevitability (as well as putting the overturn of marriage equality within sight), they are now looking for what to do in a “post-Roe” world to retain their energy, power, and dizzying levels of funding. And in the discussions they have about that dilemma, their solution, often, is to work toward a world in which they have made abortion “unthinkable.”

“I’m not suggesting that the proposed laws are unimportant—on the contrary, pass more of them! I only wish to remind us that our goal is to make abortion unthinkable as well as illegal. And that means our work has only just begun…” –  John Stonestreet and Roberto Rivera, Breakpoint

When I speak about American conservatives, of course, I don’t mean to suggest that there is some central plan or hive mind. It doesn’t work that way. Even getting U.S. Evangelicals and Catholic fundamentalists onto the same page can be a challenge sometimes, and the religious nationalist industrial complex is made up of an infinite number of organizations all vying for dollars in the same fundraising pool. But there does seem to be a fairly cohesive and organic process in which talking points filter out and take shape – and “unthinkable” appears to be one such trend in linguistic spin.

The origin of this particular incarnation of the talking point (it has been mused about many times before, but not with this degree of viral spread and consistency) appears to have been January’s Evangelicals for Life conference, in which the senior vice president of Alliance Defending Freedom’s (ADF) U.S. legal division Kristen Waggoner encouraged attendees, using the phrase. Waggoner’s encouragement came about a week after Robin Marty’s Handbook for a Post-Roe America was published, and progressive news outlets were discussing how to respond to the possibility of a patchwork or even nationwide ban on abortion. The possibility that the left might evolve to cope with a changing legal landscape – as far as EFL attendees were concerned – needed to be thought out and prepared for.

So when Ontario Member of Provincial Parliament Sam Oosterhoff tells an anti-abortion rally in Toronto that he pledges to make abortion “unthinkable in our lifetime,” it’s helpful to look at religious conservative media for clues as to what he might mean by that, and where his influences are coming from.

“New Hampshire Right to Life’s position is clear, she said. ‘We would want to put restrictions on abortions and make it unthinkable and illegal…’” – Concord Monitor

I could go at some length about how promoters of the sensationalistic and Planned Parenthood -defaming movie Unplanned seized on the phrase during their publicity tour, or how it’s turning up on Fox News, or how it came up during anti-abortion rhetoric pertaining to legislation in New York and Georgia as well as a legal ruling in Louisiana, or how it spread widely enough that even a perceived-left website like Vox gave it oxygen – but that only establishes that there is definitely a narrative. I’d much rather look at what religious conservatives are getting at, when they use the phrase.

“Every answer to why abortion is viewed as still ‘needed’ stems from a deeper-seeded issue which we could be fighting against… we need to combat the issues which give abortion supporters reasons to think it is the better ‘option.’ Abortion needs to stop being an excuse for not addressing the larger issues at hand…” – Paul Collier

If anti-abortion groups wanted to turn their attention toward addressing poverty, it would probably be a welcome development. Sadly, you won’t find a whisper of that, and doing so would probably frighten the megadonors with whom they collaborate to form the Republican / Conservative political base. But getting religious conservatives to speak candidly about specific objectives isn’t always easy. Afraid that too much transparency might allow opponents to organize effectively against them, they often restrict their public musings to dog whistle terms (of which “unthinkable” is arguably one), and stay effectively mum about which political candidates they’ve managed to get nominated as candidates in an election. But in venues seen as relatively safe and exclusive, or from pundits who are seen as less prominent, sometimes you’ll find some elaboration.

One such pundit is The Federalist’s Georgi Boorman, who actually proposed a 6-point plan. Chief among these is to “Improve Reproductive Education” – but you won’t find her making any mention of contraception (elsewhere, Boorman reveals herself to be not a fan of The Pill), condoms or family planning. There’s no direct mention of sex education in schools, either, even though it would clearly be the necessary vehicle for what she has in mind. The “reproductive education” that she speaks of is predominantly “to educate women on the dangers of” abortion (by which she means the usual far right claims about health dangers of the practice), a fetishization of the stages of fetal development, and more fearmongering about the current medical process (i.e. she cites “the horrid conditions of abortionist Kermit Gosnell’s facility” as a typical example… it’s far from it).

The remainder of Georgi Boorman’s suggestions include more criminalization (elsewhere, she openly supports the death sentence for women who abort) and the vague “celebrate life” mantra, as well as increasing support for adoption (“especially cross-racial,” she adds, stealthily riffing on anti-abortion groups’ efforts to portray the procedure as a kind of racist genocide perpetrated by leftists) and – of course – ramping up funding for anti-abortion fake pregnancy centres.

On these points, her proposals are within the purview of those of Abby Johnson, whose own proposals are steeped in proselytizing and expanding anti-abortion pregnancy counseling centers into additional areas that beatify motherhood, but do not provide any hints of information about contraception or family planning (other than, perhaps, the “rhythm method”). But Boorman also adds a notable comment about “support[ing] fatherhood”:

“… what if fathers were asked to step up as parents and providers, instead of being written off as unqualified sperm donors? What if our culture demanded it? … Millions of fathers have been robbed of this opportunity since Roe, and our welfare system has enabled this by disincentivizing marriage and fatherhood obligations. … Instead of affirming mothers’ unilateral decisions by default, we should encourage fathers’ involvement (including marriage)…”

When religious conservatives frame opposition to gay and trans human rights as “protecting marriage,” LGBTQ+ organizations and spokespeople often quip about the hypocrisy in their seeming lack of worry about divorce and cohabitation. But the fact of the matter is that anti- groups have never stopped tilting at those particular windmills, either. An outright ban on divorce is only touted by the most extreme among them, but “disincentivizing” and creating an institutional system that heavily favours marriage come up often, and the idea of restricting divorce or making it difficult retains some level of popularity.

Other religious conservatives are more ambitious. Around the same time that Kristen Waggoner was proposing that abortion be made unthinkable, the Heritage Foundation hosted Sue Ellen Browder, who claims that “the sexual revolution hijacked the women’s movement” to make abortion and contraception priorities. This, too, is not a new argument, but it is gaining new popularity with organizations seeking to keep the money rolling in after an overturn of Roe. And with anti-trans, anti-sex work and anti-porn feminists partnering with religious conservatives like never before, there appears to be a sense that they have an opportunity to co-opt womens’ rights, which can then be used as a shield against accusations of homophobia, Islamophobia and puritanism, while at the same time purging it of reproductive rights advocacy and sex positivity, maintaining a subordinated role for women in administrative areas, and asserting the doctrine of complementarianism (a teaching used both to mandate motherhood as a woman’s integral life goal, and to invalidate LGBTQ+ peoples’ rights to live their lives as they need to).

“The battle against feminism is better fought by women because the public has been convinced that men are not qualified to speak about issues that affect the fairer sex…” – John Horvat II

On this point, James V. Schall suggests that religious conservatives need to target the entirety of the sexual revolution: “The path, when spelled out, is a direct line from divorce, contraception, and abortion to single-sex ‘marriage,’ in-vitro fertilization, surrogate motherhood, and designer babies and now to a refusal to continue to increase and multiply with transgenderism, population decline, and, ultimately euthanasia… If we were to eliminate abortion, we must freely stop committing the sins that initiate disordered conceptions… Without this conversion, we will continue on the same path on which we now are traveling…”The Federalist’s Cullen Herout (which, admit it, must be a pseudonym) agrees at least on the point about contraception, saying “… if the goal really is to make abortion unthinkable, that cannot and will not happen without a large-scale shift in our cultural attitude toward human sexuality and contraception…”

So the next time your local political representative muses about making abortion “unthinkable,” it’s only reasonable to press them to elaborate. Because there clearly is more to that statement – and while religious conservatives obviously don’t think in total homogeneity, there’s enough like-mindedness to view this sort of dog whistle with alarm.

Gospel By Gaslight

If gaslighting is “a form of manipulation that seeks to sow seeds of doubt in a targeted individual or members of a group, hoping to make targets question their own memory, perception, and sanity,” then religious fundamentalism (of several sorts, although my experience is specifically with Christian fundamentalism, and other forms may vary) is a particularly insidious form of mass gaslighting.

Although I no longer hold to any particular faith, I continue to believe that the problem is fundamentalism, rather than any particular flavour of religion in its moderate form.  I do recognize that faith can have a positive effect in peoples’ lives, and has the potential to teach a certain amount of goodness and morality that people can otherwise be too self-absorbed or indifferent to learn of their own accord.  But fundamentalism, often a hardline, literalist interpretation of scripture(s) in a way that is intended to override a person’s own thoughts, experiences and inner sense of reality, easily fits the bill of spiritual gaslighting.  Fundamentalism, in its authoritarian insistence on flatly denying anything contrary to its specific interpretation of faith, its reliance on often contradictory (or at least vague and unclear) scripture, and in its refusal to adapt when quantifiably true information becomes known, can then only possibly destabilize a person’s sense of self and delegitimize their whole sense of what is true.

My own experience gave me endless examples of this, each of which had to be dismantled in a process that took years and left me bitter and angry when all was said and done.  I had been raised Catholic at first, but then from the age of 7 until I was 17, I, my mother and sister began attending a Protestant church that was so radical it was kicked out of the Pentecostal Assembly.  That church was seen as one of the more modern of its day, but that didn’t make it progressive as a result: the sell was loving, but there was no shortage of absolutes and militant edicts to be confronted with, requiring entire changes of life, and threats of rejection or divine consequences for failure.

The example that stands out most memorably stems from having been a child / teen who struggled (because that was what I was taught to do) with attraction to both sexes, and a gender identity that I was unable to articulate (because we didn’t have the language for it in the 1970s and 1980s) as being out of sync with my birth sex.  All of these things were a part of my core person, things that I couldn’t switch off like a light, things that I prayed for years for Jesus to take away, things that I threw myself into 24/7 efforts like bible study and evangelism in hopes that they’d help me overcome.  All of these things were in direct conflict with what my religion told me was true and morally acceptable.  My faith told me that Christ could “heal” me if I just believed (I did, ardently; he didn’t).  My faith told me that Christ could cast my demons out, which was a particularly horrible kind of mind game, suggesting that intrinsic parts of my being were actually manifestations of Satan incarnate.

Conscience, Human Rights, and a Kentucky Clerk

So 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)

Indiana put the lie to “religious freedom.” But Canadian Evangelicals hope you didn’t notice.

Everyone’s familiar with the old adage, “be careful what you wish for, because you just might get it.”

Which is why the Evangelical leaders who held a press conference on Parliament Hill calling for greater religious freedom laws and schmoozing with Conservative politicians last month might do well to remember Indiana.

“Unfortunately, Christians in this country find themselves under attack.  This is a violation, and we are calling on the Canadian government to stop this type of violation across this country…” — Charles McVety

Because almost to the day that the collection of Canadian religious leaders held a press conference at Parliament Hill, Indiana Governor Mike Pence signed a piece of legislation that was exactly the kind of thing they meant.  And it went over like plutonium-based paint.

For anyone who missed the ruckus it caused, the State of Indiana proposed a “religious freedom” law that was very similar to those existing in other U.S. states and federally — except that by the omission of a small phrase, it essentially made it illegal for any government body to intervene in cases of discrimination, provided said discrimination was motivated by a person’s religious freedom of conscience.  Put simply, it would legally sanction religiously-motivated discrimination against lesbian, gay, bisexual and trans* (LGBT) people (and for that matter, just about anyone else), while making it illegal for any government body to intervene.  And the State of Indiana did so because of an outcry from religious groups struggling against marriage equality (with no shortage of drama) claiming that legally protecting LGBT people from discrimination is tyranny:

“This is tyranny, and it has not come to the United States from an invading nation with tanks and rockets.  It has come wrapped in a hijacked-rainbow flag, under the banner of “diversity” and “nondiscrimination.”  At this point, only the most uninformed and deceived among us cannot see that the radical homosexual movement—a movement based purely on lies and sin—has at its heart the wicked goal of tyranny over Christian freedom, expression and conscience.  Don’t doubt it.  While this particular case does not necessarily involve a Christian employer, ultimately Christians and Christianity are the true targets of this hell-born movement.  But, these activists will gladly target anyone who resists their dark agenda, as this company, Tower Loan, is sadly discovering.

“The culture in our nation today is steeped in immorality and moral relativism to the point that far too many people have no perception of the grotesque reality of homosexual behavior and how the activists and their supporters in this sexual anarchy movement are using sodomy and “transgenderism” as a foundation to create new “rights” for those who engage in these base behaviors.  These new “civil rights” for sodomites are for the purpose of destroying the rights of the majority of the American people…”

The State of Arizona had attempted a similar thing last year, until people started realizing that it might allow medical professionals who were Jehovah’s Witnesses to deny patients blood transfusions, and other unpredictable consequences.  Moreover, the clear intention had been to disenfranchise and target a specific group of people, which proved not a very popular idea with the commercial sector.  Boycotts were threatened and travel to the state was likely to become embargoed in places, while the law’s proponents demonstrated just how aggressively they intended to use the law (while still denying that it constituted a form of special rights).  Arizona backed off, and the Governor refused to sign the bill.

In Indiana, though, Governor Pence did so happily, with a smile, a flourish, and a special fringe group photo-op.

The backlash was instantaneous.  Several states and local governments banned the use of taxpayer money to fund city employees’ travel to the State.  Celebrities canceled shows and declared a boycott.  NASCAR, the NFL and other sporting figures put pressure on the State.  The Gap, Twitter, Apple, Angie’s List and several other companies spoke out with condemnation.  Ten religious groups decried the law, including the Disciples of Christ, which threatened to move its annual convention.  The Indianapolis Star published a front page with the top half black, and bearing the words, “Fix This Now.”  And the Indiana-based NCAA made it known that they were questioning whether to hold the long-awaited Final Four tournament in Indianapolis, if not make greater changes in the future.  Eventually, the State amended the law to remove the freedom to discriminate portion (although notably, Indiana still does not actually have state-wide LGBT human rights protections, so the issue is actually not over, even if the state government wants to sweep it under the rug).  Other states have had mixed reactions to the spectacle, however, and groups and individuals have taken a certain amount of inspiration from Indiana’s trial run:

“In an interview with WOOD-TV, Dieseltec owner Brian Klawiter said he is a Christian and that he doesn’t ask his customers if they are gay, but “If you want to come in here with your boyfriend and you want to openly display that, that’s just not going to be tolerated here. We don’t believe that here.”

“In the rant, posted on Tuesday, Klawiter lamented the discrimination white heterosexual Christians face everyday in the U.S. and said he is no longer going to take it…”

To be fair, the March 25th delegation of Evangelicals didn’t call upon Prime Minister Stephen Harper for an Indiana-style “religious freedom” law per-se.  By the time they got to the Hill, in fact, they’d figured out that all of their complaints were in jurisdictions outside federal control.  So they asked for a statement.

And they didn’t get it.  Instead, they came away with a lone MP who left the Conservative caucus and used the opportunity to give a weird rant in Parliament about scientists being “gagged over a false construct related to the theory of evolution.”  Not the wisest way to politically self-immolate, I suppose.

“There’s a whole generation of kids being taught that what they’re taught in Sunday School or in church is garbage, it’s wrong, it’s false, and it’s simply a form of bullying that’s no longer acceptable. It’s not scientifically tenable, it’s a disservice to science… it’s not freedom of religion if your views are put down by your peers.” — MP James Lunney

But it’s not the first time that ideological groups have called for religious-based special rights, and it’s certainly not going to be the last.  If anything, the effort seems poised to grow.  In the U.S., some states are pressing forward with new bills of the sort, while more than one Republican Presidential contender has vowed to make it a priority.  The view from the American side of the border, at least, is that LGBT acceptance and Christianity are simply incompatible:

“When two diametrically opposed and incompatible value systems (namely Christianity and hedonistic humanism) come together in the same place, there can be no peaceful coexistence.  One will necessarily dominate, while the other is necessarily subjugated.  We saw that quickly happen in Indiana last week.” — BarbWire commentator Bob Ellis

(It’s worth adding a reminder that I personally try not to use “Christian” to describe these folks, despite their rallying behind the term, because I consider it questionable whether they actually are… at least when it comes to “loving one another” by trying to disenfranchise, invalidate, and occasionally even still criminalize people whose existence they deny or object to… not to mention doing things like conflating entire groups with sexual predators as a political tactic.)

In Canada, Evangelicals and Fundamentalists are tiptoeing around Indiana while strategizing further… and recognizing that their fight is a little harder in a nation that has already had marriage equality for several years and somehow managed to cope.

“… The most significant part of the HMP [“Homosexual Ministry of Propaganda”] victory is that the word “Equality”, a word twisted by the HMP to squash dissent, has once more been reinforced in the minds of the public to mean that a male + male or a female + female = marriage…” — Peter Baklinski at the Canadian website, LifeSiteNews.

The old “special rights” argument, now with actual special rights added.

The “religious freedom” tactic isn’t really all that new: only the phrasing used to convey it.  For many years, religious groups complained that extending human rights protections to LGBT people would confer “special rights” upon them.  Lest readers doubt that there was some deliberate co-ordination to all of this, Media Matters provides an in-depth look:

“Alliance Defending Freedom is a legal organization that works with 2,400 allied attorneys nationally on a $39 million (as of 2013) annual budget. ADF was founded in 1994 by several of the country’s largest national evangelical Christian ministries to “press the case for religious liberty issues in the nation’s courts” and “fend-off growing efforts by groups such as the American Civil Liberties Union (ACLU), which seek to immobilize Christians.” Today, it has become the country’s best-funded and most powerful right-wing Christian group working against what the organization calls the “myth of the so-called ‘separation of church and state.'” 

“… While the group prefers to talk about its “religious liberty” work when in the media spotlight, ADF also actively works internationally to promote and defend laws that criminalize gay sex. ADF’s formal support for anti-sodomy legislation dates to at least 2003, before the Supreme Court made its landmark decision in Lawrence v. Texas. ADF, which was at the time still known as the Alliance Defense Fund, filed an amicus brief in the case, defending state laws criminalizing gay sex. In its brief, ADF spent nearly 30 pages arguing that gay sex is unhealthy, harmful, and a public health risk…”

Of course, it then became awkward trying to explain the dangers that could ensue if the “special right” to be equal might trump the then- perfectly ordinary everyday right to deny someone employment, housing, medical care, enfranchisement, and/or goods and services.  Embarassed, anti-LGBT leaders began looking for new phrasing and the lowest-hanging fruit to justify their claims.  The shift to a “religious persecution” -based tactic started with adoption agencies that were “forced to close” because they refused to assist would-be parents in gay or lesbian relationships.  Except that they weren’t really forced to shut down:

“Catholic Charities in Illinois has served for more than 40 years as a major link in the state’s social service network for poor and neglected children. But now most of the Catholic Charities affiliates in Illinois are closing down rather than comply with a new requirement that says they can no longer receive state money if they turn away same-sex couples as potential foster care and adoptive parents…

That’s when the attention turned to wedding cakes and photographers.  To at least some of the public, it seems relatively trivial and nit-picky that LGBT people are expecting to be able to enjoy the same access to those services as anyone else.  Never mind that the same logic and law used to deny a wedding cake might also be used to deny housing, education, health care, security, or any other service where religious freedom of conscience might cause someone to take issue.

Canada illustrates this a bit more visibly, with religious conservatives fighting a conscience policy for medical professionals which would allow them to decline non-emergency as long as they still provide a referral to someone who will provide accurate information.  Shoulda’ went for the cakes.  Just saying.

I’ll admit that there’s a civil libertarian in me who wonders why someone would take it upon themselves to fret about anti-LGBT cake vendors, or even go looking for them for the sake of stirring up a controversy.  I just don’t see the point of wanting to give homophobes and transphobes a bunch of money.  But I get it: full enfranchisement hasn’t happened until a person can go about their business without having to worry about being blindsided by idiots trying to exclude them, just because of who they are.  And that’s why the trivial stuff matters.

But in the end, while the dust settles on Indiana’s religious freedom bill fiasco, and Canadian ideologues try to raise the issue to a national level, it’s important to look at the fallout.  Because as much as religious fundamentalists might try to pretend that they’re only interested in protecting their own freedoms and not harming others, the meltdowns that have occurred in the wake of the Indiana bill’s demise paint a different picture:

“It wasn’t broken and the alleged “fix” that the Indiana legislature, at your request, has proposed to the Indiana Religious Freedom Restoration Act (RFRA), will destroy the law beyond all recognition. In fact, it will turn it into the “RFDA” – the “Religious Freedom Destruction Act.” No bill at all would have been better than this anti-Christian, sexual anarchist disaster.

“What was intended as a shield to every American’s First Amendment-guaranteed religious liberty, as proposed, will now become a sword used to destroy it. What was designed to defend people of faith against being discriminated against and bullied will, instead, codify anti-religious discrimination and bullying into law. It will unconstitutionally force people of faith, under penalty of law, to affirmatively violate their sincerely held religious conscience. It has been turned into a weapon that compels people of faith to disobey God or face government sanction.” — Matt Barber

Because the intent was clearly to discriminate.  And sometimes when anti-LGBT leaders think that only the faithful are listening, they’ll even candidly say so:

“Starting in the 1990s, the homosexual movement worked tirelessly, spending enormous funds, to get state and local governments to amend their anti-discrimination laws covering public accommodations, employment, housing, public education, etc., to include “sexual orientation.” In recent years there’s been a push to include “gender identity” (cross-dressing, transgenderism, transsexuality) also.

“There’s a big strategic reason for that. As Dr. Scott Lively has pointed out for years, these updated laws are the starting point for the whole, brutal legal jihad against Christians and others holding traditional values. Every outrage we’re now seeing — including the LGBT activism in the schools, targeting of businesses, men using women’s restrooms, sado-masochist/”swinger” conventions in hotels, etc. — emanates from these laws.

“But pro-family people have only recently started to wake up on this. They instinctively realize that citizens should be able to discriminate and refuse to promote or celebrate perversion and “gay”  marriage. But these anti-discrimination laws now make it a crime to do so…”

The fight for special rights to discriminate will continue — it’ll just change along the way.  It will persist because the will to discriminate persists:

“What should Christians and other believers do in the face of this heightening repression? They must go on the offensive—charitably but vigorously—and fight the battle on several levels… The lame discrimination complaints by homosexualist organizations against believers in human rights commissions and the pressuring of corporations to dump executives and employees who dissent at all from the homosexualist agenda should should be met consistently with lawsuits for abuse of process and defamation. That would put financial pressure on the well-heeled homosexualist organizations…” — Crisis Magazine & LifeSiteNews commentary.

So the strategizing continues.  In one American twist, anti-discrimination intervention is being said to be a violation of the separation of church and state.  In another, an organization that considers boycotts and letter-writing campaigns organized by LGBT groups to be “economic terrorism” is exercising its own boycotts and letter-writing campaigns against alleged “anti-Christian discrimination” — discrimination which apparently includes producing a TV show about the life of Dan Savage.  The hypocrisy is rampant, with the same groups that complain of being silenced having no qualms about censoring LGBT speakers or hounding them to leave their jobs with non-profit organizations.  In a moment of coinciding interest opportunism, American lobbyists and legislators are even hoping that religious freedom bills can be combined with the ruling in Hobby Lobby to grant companies the same sort of special rights:

“Georgia State Senator McKoon hopes that, if his bill passes next year, courts will find it covers companies as well as flesh-and-blood human beings, even if it doesn’t say so explicitly in the text. “I believe,” he says, “that the bill would be read as the federal bill was interpreted by the Hobby Lobby decision…”

It’s not going to drop off the Canadian radar anytime soon either, because the Supreme Court of Canada just ruled that reciting a denominational prayer at town council meetings infringes on the freedom of conscience and religion. The state, it determined, should neither favour nor hinder any particular belief, nor impose one on others.  Which, when viewed through the far-right lens means that the rival religion of secularism / atheism is persecuting Christians:

“In a sense, by prohibiting respectful, non-proselytizing, non-coercive prayer, the court is showing a clear preference to non-religious believers over religious believers, and gives an untenable status to secularism and atheism, which are themselves beliefs. So there is no balance and no reconciliation among various beliefs in this ruling but shows a preference for one belief – secularism – over all other beliefs,” Elia told LifeSiteNews.

“This is not an example of a true, authentic and robust pluralism,” Elia stressed. “In true pluralism, religious believers and non-believers can share the public square, but this decision means the public square can no longer be shared…” — LifeSiteNews.

So it becomes worth scrutinizing the recent events the Canadian delegation to Parliament pointed to as examples of attacks on religious freedoms in Canada:

• The decisions of a number of provincial bar associations not to accredit any potential law school graduate of Trinity Western University;
• The College of Physicians and Surgeons of Ontario’s Professional Obligations and Human Rights policy, which ensures access to medical care for people seeking abortions, contraception or other accepted legal medical procedures; and
• A recent Statement of Support for Diversity and Inclusion signed by 72 major companies across Canada.

Because when we do so, we see that:

• The decision not to accredit Trinity Western University law school graduates was made because of TWU’s ban on sexual behaviour outside heterosexual marriage, which amounts to a creative way to shut out LGBT people;
• The College of Physicians and Surgeons of Ontario’s policy in fact allows medical professionals to opt out of procedures and services that violate their religious beliefs, but they must still provide a referral to someone who will give accurate information about treatment or procedure options (which gets portrayed in far right media as forcing doctors to perform abortions); and
• Seriously, this is a statement that says “We value the range of perspectives, ideas and experiences that diversity provides, whether grounded in gender, race, sexual orientation, disability, cultural background, religion or age,” and says that the signatory businesses will “encourage greater diversity and inclusion.”

Underneath it all, the special right being sought is the right to create deliberate barriers for people whose sexuality they object to.  Even diversity policies are considered offensive:

“Gwen Landolt, a lawyer and national vice-president of Real Women of Canada, called BMO’s policy the “height of discrimination and intolerance.”

“Their position is shocking and appalling. They have applied political correctness to the absolute borderline of insanity,” she told LifeSiteNews…”

But don’t expect an equanimous approach to how “religious freedom” is interpreted.  At best, it is a selective thing:

Lunney’s defence of religious freedom does not extend to supporting the right of Muslim women to wear the niqab when being sworn in as citizens, however.

After initially avoiding the question, he eventually confirmed that he shares the views of his former party and the prime minister that those seeking to become Canadian citizens should show their faces.

“I’m not going to get tangled up in that argument,” he said.

In the end, of course, the “religious freedom” battle cry may end up amounting to nothing in the warmer social climate of Canada.  Hopefully, the general public will see it for what it is, without the benefit of a Mike Pence -like Premier to push the issue.

“Saskatchewan Premier Brad Wall says the opening prayer at the province’s legislature will remain despite a recent Supreme Court ruling…”

But then again, who knows?

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.

Sodom: Review of a Russian Anti-Gay Documentary

On Tuesday, October 28th, Peter LaBarbera re-entered Canada for an immigration hearing, then to speak at an anti-LGBT conference, and finally on Thursday to face charges for mischief (which stem from an arrest while distributing anti-LGBT leaflets at the University of Regina).

LaBarbera (nicknamed “Porno Pete” by bloggers because of his penchant for filming pride parades and gay BDSM events in the name of “research”) has returned to Canada at the invitation of Bill “Anal Warts” Whatcott (so nicknamed because of his fondness for distributing graphic depictions of anal cancers and other deliberate shock leaflets).LaBarbera was briefly detained, searched and questioned by Canada Border Services — or as American social conservatives call it, persecuted by “homofascists.” In the process, though, border services did seize a DVD copy of the Russian anti-LGBT documentary, Sodom.  As the film is available to view in English on YouTube, LaBarbera and Whatcott proceeded to show it at their conference, anyway.

Personally, I’m not a fan of censorship. I realize there has to be a limit to propriety, and not just when someone advocates for mass-murder.  The Protocols of the Elders of Zion didn’t actually call for Jews to be put to death, for example, but it created such an inflammatory environment that violence became inevitable.

But given that LGBT people are just as at risk of being silenced in the name of propriety (maybe even for giving people snarky nicknames), I’m still not keen on censorship. Part of the whole reason for LaBarbera’s visit is to strategize about how to bring about a Russian-style “gay propaganda” ban in Canada, after all.

So, I still prefer to let people speak freely, and once they’ve had enough rope, show people what they’ve done with it.  And in that vein, I bring you:

Sodom: The Review

And yes, it will be triggery.

Sodom first aired on Russia’s government-funded Rossiya-1 station in September.  It presents itself as a sensational expose* of the sinister gay rights plot to forcibly transform society into one that accepts any and all evil, while eradicating truth, freedom, religion and decency.

You might think I’m exaggerating, but I’m not. Sodom was originally filmed and written for a Russian audience that had already been scared into an anti-LGBT frenzy resulting in incidents of violence noted worldwide.  This furor was accomplished by speakers like Scott Lively (who appears many times in the film), who conflated LGBT people with pedophiles, and claimed that the Nazi party started out as a gay plot.  Lively’s activism resulted in a ban on “gay propaganda,” which is essentially anything that can be seen as LGBT-positive (or perhaps even acknowledge their existence in a non-condemning way), in any environment where children might hear or see it.  In this context, Sodom is able to fearmonger unchallenged, and get away with all sorts of wild claims.  In Russia, the film received high ratings and was critically acclaimed.

But it’s a bit different for a Canadian audience: people who have coped with LGB(t) human rights for over a decade and lived with same-sex marriage since 2006 without descending into a stylish shock-troop cavalcade.  Canadians largely (with exceptions) didn’t mind having to coexist with LGBT people or do business with them in the past few years… although that’s starting to change now that Americans are framing it as a violation of principle that’s going to send them (and all society) to eternal damnation.

But belief is a powerful persuader, which can goad the faithful into ignoring all evidence and reason, in favour of conjectures, no matter how grand.  Although I refuse to dignify far right homophobia and transphobia as being a “Christian” perspective (because certainly not all Christians espouse it), it should be recognized that leaders like LaBarbera and Whatcott still manage to frame it as such, and that can have a strong influence on people who view it as their duty to believe.  Those people don’t have to question God if they don’t want to… but they should most certainly question the people who claim to be speaking for him.

I don’t speak Russian, so I can’t say how much of the English translation of Sodom was polished up for a Western audience.  I am under the impression that very little was changed, if anything.  Which is surprising, because if any film needed to sweep its extremes under the translation rug, it was this one.

Sodom’s producer, Arkady Mamontov, previously gained notice for implying that LGBT rights caused the Chelyabinsk meteorite explosion.  He hasn’t stopped seeing queer-caused calamities since then.  In Sodom, Mamontov makes several weird or inflammatory claims:

• LGBT people are repeatedly conflated with pedophiles within the film, and homosexuality is claimed to be inextricably interwoven with child molestation.  There is a suggestive undercurrent of this throughout the film, nudge-nudge-wink-wink, but at times, the narrator is also far more explicit.
• “Sodomites pay attention to mysticism and different symbols,” we are told.  With jump-cuts of historical artworks and occasional allusions to rites, the film tries to artfully connect LGBT people to devil worship without actually saying it out loud.  Because that is apparently seen by the filmmakers as the limit of believability.
• LGBT people are said to have conspired to rewrite the Bible, in order to make scripture accommodate them (rather than simply critically re-examining the clobber passages).  In the western world, apparently everyone who is lesbian, gay, bisexual or trans* (LGBT) owns a copy of the Queen James Bible.

Language is crucial in Sodom.  It’s quite clear that the film translators much prefer the term “sodomites” to describe LGBT people.  It ties into the title of the film, and is keyed to keep the focus on sex acts in the hope that doing so will make viewers uncomfortable or outraged.  Likewise, trans* people are referred to as “transvestites,” lesbians referred to as belonging “to a new sex tribe,” and when all else fails, “perverts” will suffice. The idea of “mama and mama” is made to seem puzzling, bizarre, disgusting and scandalous.

In the early scenes of the film, Scott Lively explains that Russia is at the first stage of gay activism: “Well, let me explain how this works.  There is a five-stage process of cultural conquest.  Five steps. It begins with a request for tolerance.  Once the gays have achieved tolerance — and tolerance is just the right to be left alone — then it’s a demand for acceptance, and acceptance means equal status.  Then comes celebration — that everyone must accept homosexuality and promote it as a good, valuable thing.  Then comes forced participation: everyone must participate in gay culture.  And then comes punishment of everyone who disagrees.”  LGBT people must not be even tolerated, he argues, because that’s the first step that leads to everything else.

“The average American is not in favor of homosexuality,” Lively claims.  “But they are afraid to speak publicly about it, because the gays have so much power and they can do harm to those people.  Most people are vulnerable to some sort of intimidation, especially if they are in any position of influence, or in the media spotlight.”  Lively welcomes the initial nod of an agreeing taxi driver as evidence… though the driver later seems to change his mind and want to be left out of the discussion (“no, no”) but is creatively edited to appear as though he’s simply gesticulating.  Moments later, in front of the office building occupied by the LGBT establishment organization, Human Rights Campaign, Lively says “they are trying to declare that homosexuality is a human right. And they’re devoting massive amounts of money to promoting this agenda around the world, instead of addressing genuine human rights.”  The HRC is apparently such a monolithic fundraiser that poor, underfunded churches can’t keep up the opposition.

Next, the film makes a stop at London’s Tavistock Institute of Human Intelligence, which during World War II was exploring “new methods of psychological war, not only against fascist Germany, but also the Soviet Union.”  Tavistock is said to have conspired with the CIA to create the MKULTRA project, for the purpose of manipulating people.  While Canadians may see this as an aside, to a Russian audience, the suggestion is planted that England is still engaging in psychological warfare against them today.  Naturally, the producers find someone “who knows a lot about this” apparently super-secretive institution, Daniel Estulin, who claims that the Tavistock Institute “is the place which created and later imposed on the consciousness of European youth such cultural accents as ‘free love,’ orgy, and civil marriage.”

MKULTRA did indeed experiment with hypnosis, behaviour modification, physical and sexual abuse, LSD, and sensory deprivation.  There have also long been claims that Tavistock contributed to the program.  But in Estulin’s estimation, MKULTRA was really a “fifty- or hundred-year plan” to normalize homosexuality and sexual liberation, “literally to change the paradigm of modern society.”  The film also alleges that “the psychological components of the Ukrainian Revolution — chants, behaviour models, slogans — were also created here.” Estulin cautions that the endgame is “genetic manipulation to eliminate memory,” and warns that after lesbians, gays, bisexuals and trans* people are accorded equality, “… then you can have transhuman.  You can have post-human.  You can have man-machines, such as the Terminator.  You can have cyborgs.  You can have beings that are not totally human as a result of synthetic biology, because today you can literally create a human being in a laboratory.” And frighteningly enough, I guess, they might all want human rights.

The filmmakers also pay a trip to The Fertility Institutes in Los Angeles, where the segment opens with the clinic doctor bragging that they’ve become world-famous for being able to choose a boy or a girl.  Here, they examine LGBT parenting by taking viewers through the clinical process of in-vitro fertilization, complete with ominous music, in a way that is meant to create a chill over the cold sterility of the process.  They make repetitive claims that gays always want boys and lesbians always want girls (and of course, there could be no alternate explanation for that, nudge-nudge-wink-wink): “Green is genetic disorders, like Down’s Syndrome, or they have a genetic problem. Okay? But most of them have boys and girls.  The male gays want boys, and the female gays want girls,” the clinician generalizes with a large grin that is lingered on, suggestively.

There is ample film time spent on Pride parades, as the film editors cut in every example of nudity or garish costumes that they can find, interspersed with footage of kids and teens in attendance.  BDSM folks turn up frequently, and some of the footage looks like it actually comes from the Folsom Street Fair, in a way that makes one wonder if Porno Peter LaBarbera was behind the camera (alas, I can’t find the film credits, or I’d check).  “Aren’t you afraid your child would want to become like them?” The narrator asks one parade onlooker, being careful to stay within the perception of choice and whim, and avoid any thought that sexuality could be something intrinsic and individually-rooted.  “Naw,” is the reply, “we actually want to encourage him to see everything, everything in the world…”

“Sodomites unconsciously understand that what they are doing is wrong,” the narrator assures us, as the camera searches the crowd for any expressions that could seem sad, scared, or otherwise negative.  “However, on the surface, everyone makes an effort to express joy,” he adds, coming up short of appropriate footage and needing an explanation.  Then, they do their level best to depict children of LGBT people as unhappy, ashamed or even terrorized… rather than simply intimidated by being in a large crowd with so much activity taking place.  “The child’s soul feels that everything around them contradicts nature’s law.”

Surrogacy is the next focus of attention.  Remember that Russia is currently debating banning out-of-country adoptions and / or adoptions by LGBT parents.  “Where there is no woman,” the narrator asserts, “there is no continuation of life.  But sodomites try to bypass the laws of nature.  Large sums of money are spent on exactly this: mother-mother, father father.”  At this point in the film, IVF and surrogacy are both portrayed as human trafficking.  “The sodomites have paid for and received living goods for their money.”  The film returns to the assertion that gay parents want only boys, and lesbians want only girls: “for what?  Perverted acts?”  Naturally, a pair of men in New Zealand that subjected their adopted child to heinous abuse and were convicted of molestation are now given ample screen time, and portrayed as evidence that this is the norm.  They allege by extension that all children of LGBT parents are brainwashed into covering up abuse and “to think that this sort of behaviour was acceptable.”  The surrogate mother in this case had been Russian: the intended lesson is clearly that western LGBT people are taking advantage of Russian mothers to provide exploitable children through adoption.  IVF is even framed as a genocide in which one child is created but many others are destroyed.  “It’s an unnatural process.”

Sodom also takes aim at a lawsuit against a florist, Baronelle Stutzman, who refused to sell flowers to an LGBT couple.  Because of the gay mens’ intolerance and ignorance, we are told, Stutzman is likely to lose her house and her business.  Viewers are manipulated into tears and rage at the thought that the special right to have equal access to goods and services has trumped the perfectly ordinary, everyday, sensible right to deny someone else exactly those things.  “But why are the rights of all the other people violated in the light of the first?” the narrator later asks.

There is an undercurrent of discussion about neocolonialism that infuses the film — or more honestly, one that hijacks the discussion of neocolonialism.  There are plenty of examples of anti-LGBT conferences and meetings with religious and political leaders by people like Scott Lively, and it is actually American groups’ homophobia that has been trying to change Asian, European and African nations through fearmongering and lobbying.  But the film reverses this so that the American government is portrayed as deliberately promoting homosexuality around the planet, “as plague, as cancer.”  Yet corporate globalization, militaristic interference, and widespread espionage are not identified as colonial problems… only homosexuality.  One Moldovan political leader relates how his attempts to ban a pride parade resulted in a stern talking-to from an American-connected diplomat.  How fascist.

Later in the film, prison rape takes centre stage, with abuses in Gldanskaya (a Georgian prison) that are claimed to have been directed by an American puppet dictator and inspired by Abu Ghraib.  The abuses are portrayed as a deliberate attempt to spread homosexuality through non-consensual torture.  “There was one goal: to break, diminish and humiliate.”  They later add, “the same thing awaits people who aren’t accordant with the regime in Ukraine.  The pro-American regime will use the same methods in jails and prisons.  There are currently thousands imprisoned from Kiev to Odessa, and only God knows what is being done to them.”

As the film winds to its conclusion, it presents Russia’s law banning “gay propaganda” as the solution, warning that any insufficiently condemning representation of LGBT people is dangerous.  Father Mikhail, prior of the Saint Georgiy temple in Tblisi explains: “Everything begins with a harmless character in a movie or a sitcom.  This man is obviously homosexual, but he is funny, witty, and then it stops.  He disappears.  Then another film, then a few more.  It’s like a poison in small doses.  It won’t do anything to you right away.  But with time it gets bigger and stronger, and the tolerance of the system weakens, accepting it more and more each time.”  It underscores Father Mikhail’s point with visions of HIV and gay BDSM.  “Russia occupies one of the leading positions” in restoring order, the narrator says.  “The law banning gay propaganda, a return to traditional values, and the strengthening of the faith of the nation… all this postpones the end of times.”

What separates Sodom from something like The Protocols of the Elders of Zion (aside from the choice of minority group that is targeted) in a place like Canada is the context.  Here, everyone has a friend, or a family member, or a co-worker who is gay or lesbian, or bisexual, or trans*.  There is a familiarity that is comfortable.  There are certainly people who are closed-minded to LGBT rights, or are susceptible to a feeling of culture shock at social change, or don’t know (or don’t care to know) any of the issues LGBT people face… but for the most part, Canadians recognize people as people, and don’t feel all that threatened when those people fail to adhere to rigid cultural hegemonic expectations.

The situation is far different in Russia.  Fewer people know LGBT persons, and with the “gay propaganda” law and potential for violence driving them further into the closet, the next generation is far less likely to have any familiarity with them.  In this environment, Sodom is a tinderbox, ready to ignite.  In this context, Sodom cannot help but trigger violence and rage.  There isn’t even the usual lip service to loving the sinner but hating the sin.

LaBarbera and Scott Lively have formed the Coalition for Family Values specifically for the purpose of bringing Russia-inspired laws banning gay “propaganda” to western nations:

“The Coalition for Family Values will be encouraging our current and future affiliates throughout the world to lobby their own governments to follow the Russian example. While the LGBT agenda has seemed like an unstoppable political juggernaut in North America and Europe, the vast majority of the people of the world do not accept the notion that sexual deviance should be normalized. It is time that these voices are heard on the world stage before the so-called elites of the Western powers impose their inverted morality on everyone through the manipulation of international law, which they clearly intend to do…”

And that starts with eliminating LGBT-positive portrayals and human rights protections.  But they’ll have the public believe that they are the true victims of a colonial and fascist agenda.

So now you know.

(Crossposted to Rabble.ca and The Bilerico Project)

On conscience-based medical exemptions

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

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

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

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

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

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

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

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

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

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

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

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

(Crossposted to Rabble.ca)

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

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

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

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

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

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

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

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

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

The Poison Pill

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Crossposted to The Bilerico Project)

C-36: Conflating sex work with human trafficking

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

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

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

Conflating sex work with human trafficking

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The rescue industry

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

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

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

A matter of advice

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

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

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

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

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

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

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