The Supreme Court of Canada today issued an important decision about hate speech directed at queers.
The background to the case concerned four documents: two flyers, one called "Keep Homosexuality out of Saskatoon's Public Schools!" and "Sodomites in our Public Schools"; and two flyers which were the reprint of a classifed ad with handwritten comments added.
Under the Saskatchewan Human Rights code, it is illegal to circulate publications which "expose a person to hatred and ridicule" on a protected ground - here, sexual orientation.
So the big question for the court was: where does prohibited hate speech end, and where does freedom of speech begin?
The Supreme Court of Canada analyzed what a publication must be like in order to contravene the hate speech provisions. It said that there must be three main elements. First, the person judging whether the publication contains hate speech must do so from an 'objective' point of view, asking themselves whether a 'reasonable person, aware of the context and circumstances, would view the expression as exposing the protected group to hatred'. (In other words, you cannot only ask queers what they think about that question). Second, it is only hateful and contrary to the protections in Saskatchewan's human rights legislation if it is really hateful...in the sense captured by the words 'detestation' and 'vilification'. It's not hate speech just because it is repugnant or offensive. And finally, the decision maker must look to see what the effect of the hate speech is: is the probably effect that it will expose the targeted person or group to hatred by others?
The complainants had argued that the section of the human rights law under which they had been convicted was a breach of their constitutionally protected right to freedom of speech. True, said the Supreme Court of Canada: but, your right to freedom of speech has to be balanced against the right to be free from speech which is likely to cause hatred; and in this case, most of the human rights law is appropriate and impairs one's freedom of speech minimally.
Part of the Saskatchewan human rights legislation outlawed speech which "ridicules, belittles or otherwise affronts the dignity of" a person. That part of the law, said the Supreme Court of Canada, is too broad. And they struck it down.
This case has been long-awaited. Queers have been holding our breath to see whether the Supreme Court of Canada would uphold our right to be free from malicious homophobic speech, or whether once again our rights would be seen as subordinate to someone else's rights to free speech, or freedom of religion.
According to Julia A. MacMillan, professor of pediatrics and associate dean for graduate medical education at the Johns Hopkins University
School of Medicine, every study ever done over the last 30 years confirms that children are healthiest if raised by two loving parents, regardless of gender.In an article in today's Baltimore Sun, MacMillan notes "
Every major children's health
and welfare organization, including the American Academy of Pediatrics
, the Child Welfare League of America, the American Psychological Association, the American Psychiatric Association, the National Association of Social Workers, and the American Academy of Child and Adolescent Psychiatry
, confirms that gay parents make good parents. The American Medical Association
, the nation's largest and most well respected association of physicians, with a membership of more than 200,000, agrees". Studies purporting to show that LBG parents are flawed have been completely debunked for their pseudo-scientific methodologies. There is currently no research specifically about trans parents.
Congresswoman Mary Gonzalez was elected in May as the state's first lesbian member of the House of Representatives. At the time she was dubbed the 'Latina lesbian lawmaker'.
In a thought-provoking interview with the Dallas Voice, she now explains that her identity is pansexual. Not bisexual, as in attracted to both men and women, but pansexual - attracted to people whatever their gender identity.
It is an odd feature of the English language that our sexual orientation is defined by the gender of the person we are attracted to. And it moves from odd to unworkable as soon as you take into account trans people. What is the correct term for a person attracted to trans people, or to both trans and cisgendered people?
There are in the world people attracted only to trans people. How would you describe their sexual orientation?
If your partner is transsexual and transitions from one gender to the other, does that mean your sexual orientation has changed?
For me, 'queer' solves a multitude of problems of that kind. I think that it is conceptually weird to say that if my partner changes gender, my sexual orientation has changed if I stay with my partner. First of all, if s/he is transsexual, maybe it was her/his transsexuality (rather than her ascribed gender) that I was, even unknowingly, attracted to in the first place. Second, even if her/his genitals have changed, her/his gender identity has not: s/he had the 'wrong' genitals in the first place. So if my sexual attraction was to someone who transitioned from male to female, she was always female. Though the world would have 'seen' me as being involved with a man, and after her transition, with a woman, and the world would have described my sexual orientation as "changing" if we stayed together after her transition, I think that way of describing what is going on is simply inadequate.
What do you think?
A refugee claimant from Malaysia disclosed first his HIV status, and only later acknowledged he was gay. The Senior Immigration Officer (SIO) concluded that Ng was not protected as a refugee because he could get HIV medicine for free without charge; and though there was stigma against gay and HIV+ people in Malaysia, that same was true in Canada.On judicial review (a kind of appeal) of that decision, the court said that the SIO was wrong because the particular kind of medicine that Mr. Ng required was not available for free; and because it was improper to compare the homophobia in Malaysia to that in Canada as the SIO had done. The case was sent back to be heard by a different SIO. Ng v. Canada (Minister of Citizenship and Immigration),  F.C.J. No. 598, the Federal Court of Appeal
The Nepalese government, responding to pressure from the LBGT community and a court case last year, has announced that citizenship documents will now provide an option to identify as a third gender.
The change was greeted with alacrity in the Nepalese queer communities, according to an online article in IBN Live (http://ibnlive.in.com/news/nepals-gays-lesbians-get-citizenship-status/261025-2.html)
It is interesting that in Nepal, being lesbian gay or bisexual, or being transgendered, are treated together; in North America (except for some First Nations) we treat sexual orientation and gender identity as separate concepts.
And it is interesting that Nepalese queers have argued for another category, as opposed to arguing that gender markers should be removed altogether. In pending human rights cases we are arguing that passports (and any other identity document that includes a photo) should have no gender markers.
What does it mean that Obama has endorsed same sex marriage?
- a political calculation that he will gain more votes than he will lose by taking this position
- one of the only progressive things he can do since he doesn't control the Senate or Congress
- made necessary because Joe Biden said it first
- a genuine stand for the civil rights of same sex partners
- all of the above?
I expect that it is all of the above, and more reasons we don't know.
And does it matter?
Before the same sex marriage fight in Canada, people thought that same sex marriage was just a matter of opinion. After we won the marriage cases, forcing the federal government to amend the Marriage Act to permit same sex marriage, Canadians understand that marriage is a Charter-protected civil right. And that has made a huge difference to the general acceptance of queers in this country.
The right is right: gay marriage does change the nature of marriage, because marriage is not exclusive any more. And that is a good thing. It moves us closer to the day when everyone - whether married, common law, or "single" - can have the social benefits which started out available only to married heterosexuals. Such benefits include everything from pension benefits to preferential tax treatment to 'family' discounts. Fully a quarter of the laws of BC affect one's rights as a member of a couple or a family.
I spoke to some queers in the U.S. yesterday about Obama's announcement, and they said that it has had a galvanizing effect on queers there, who are feeling energized and proud about Obama's statement. All the best to our US queer friends and allies in this fight!
Whatcott went to the University of Calgary to distribute anti-gay leaflets. The University charged him with trespassing. Whatcott argued successfully that the university cannot charge him with trespassing in those circumstances, because his right to distribute anti-gay leaflets is protected by the guarantee of freedom of expression in the Charter of Rights.
For the complete decision: R v Whatcott