Tag Archives: womens rights

“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.

BDSM, Gender, Entitlement, and Jian Ghomeshi

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

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

“Wait, what was that about allegations…?”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“… I think I can square the two Ghomeshis.

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

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

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

Not Responsibility, But Entitlement

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

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

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

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

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

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

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

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

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

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

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

So what next?

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

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

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

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

On conscience-based medical exemptions

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

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

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

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

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

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

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

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

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

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

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

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

(Crossposted to Rabble.ca)

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

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

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

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

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

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

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

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

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

The Poison Pill

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Crossposted to The Bilerico Project)