Monday, April 6, 2009

Inclusion of Sexual Orientation in Human Rights Legislation

From: Mercedes Allen
Sent: Sunday, April 05, 2009 9:34 AM
Subject: Inclusion of Sexual Orientation in Human Rights Legislation

Sorry for the bulk email, but I had to send a note out on this, because when discussions happen behind closed doors, it's easy for people to have the impression that they're not taking place at all. I can't say much more than this (particularily because I'm not in the know, myself), but I thought it important that people know that some dialogue is in fact taking place. Silence is all too often discouraging in our community.

By now, some of you have heard that the Alberta Government is assessing some changes to the Human Rights Act and has a first draft proposal that includes adding sexual orientation to the list of protected entities, but not including gender identity or gender expression. The latter are said to be protected under the category of "gender" already, but this can be subject to interpretation, as happened in a U.S. court with a similar implicit protection recently, where a company dress code based on birth sex was given more weight than a person's gender identity.

This has been largely the result of the respective ministers in the Conservative Party and an unwillingness to discuss gender identity and gender expression, so far. Some of the people who have been pushing for inclusion of sexual orientation have also been pressing them on this point, and plan to continue to do so as the draft proposal goes through debate and changes. It's important that people be aware of that much. These people know that some of us can be called upon to assist in dispelling the myths and representing the community.

I do want people to know, though, some of what they're up against, because if we aren't included in the end, some may find it easy to blame our allies -- which is not fair to them.

Over the past few years, Canada's Human Rights Commissions have been becoming increasingly under fire for a number of things, particularly the enforcement of hate speech laws -- in the case of the federal HRC, the Conservative government has signalled that it intends to remove hate speech provisions as a result of this outcry, which comes mostly from conservative pundits and journalists, but also from the Roman Catholic Church, Albertan protestants (in response to the case between Dr. Darren Lund and Rev. Stephen Boissin about two years or so ago) and white supremacists, some of whom have been able to scrub their backgrounds to portray themselves to the public as innocent victims. Ezra Levant, Mark Steyn, The National Post (all of whom have not surprisingly lost hate-speech cases heard by HRCs), Jonathan Kay and (of course) Margaret Wente have been some of the most visible voices in this, and have repeatedly and loudly used four HRC cases across the country involving transsexuals (Nixon vs. Rape Relief in B.C., a case against a surgeon who refused to perform vaginaplasty touch-ups in Ontario, the reinstatement of GRS coverage in Ontario, and a case that hasn't yet begun against a women-only gym owner who refused entry to a pre-operative transsexual) to assert that HRCs have "lost touch with reality and common sense" (paraphrase). Of course, these cases aren't about hate speech, and when examined are straw arguments, but that hasn't stopped them from winning points with politically-active Canadians. This use of us as the boogeyman likely hasn't encouraged the government to want to consider full inclusion.

And they have to be aware of these criticisms: among the proposed changes to Alberta's HRC are provisions that would allow parents to opt their children out of sex and diversity tolerance education, and a proposal to remove hate speech provisions -- exactly the things that these lobbies are calling for. The inclusion of sexual orientation is not surprising, as it was mandated by the Supreme Court of Canada years ago, and appears to be offered more as a concession now (the carrot being offered to look progressive), than anything.

That doesn't mean that anyone is giving up. But I do want people to know that if it doesn't happen or appear (in the media) to be discussed, it's not a case of being forgotten.

I'm mulling over what else we can do, and am open to suggestions.

--
Take care,
Mercedes Allen
Alberta Transgender Resources: http://www.albertatrans.org/

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