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Remember the Charter of Rights?  Not so fast...

9/14/2013

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The Canadian Charter of Rights and Freedoms, enacted in 1982, has become a cultural touchstone, guaranteeing that Canada is a place of freedom, respect, and equality.
Right?
Two events this week underscore the Charter's weaknesses.  The first is an . underreported court case in Ontario, Tanudjaja v Canada. In that case, a coalition including B.C.'s Pivot Legal Services argued that the Charter imposed an obligation on the federal and provincial government to ensure that affordable, adquate and accessible housing is available for all Ontarians and Canadians.  The coalition argued that section 7 of the Charter, a guarantee of of "life, liberty, or security of the person" imposed that obligation.  
The case was thrown out as soon as it was filed, before any evidence was heard. The court said that the Charter imposes no positive obligation on governments to do anything.  If the government gets into the affordable housing business, it must do so in compliance with the Charter which among other things guarantees equality.  But the government has no obligation to get into the affordable housing business if it doesn't want to. 

So your 'right' as a Canadian to "life...and security of the person" doesn't include the right to eat, or be sheltered.  


The second event - this one all over the news - is Quebec's intention to introduce a "Charter of Values" which would prohibit the wearing of some religious symbols (all except Catholic crucifixes, in fact) if you work in the public sector - government, hospitals, educational institutions.  


This law does contradicts the guarantee of 'freedom of religion' and the guarantee of 'freedom of expression' in both the Canadian Charter of Rights and Freedoms and Quebec's own Charter of Rights and Freedoms.   


Courts have consistently upheld the rights of religious minorities: for example in Multani, a affirming that Sikh boys could wear kirpans (a religious symbolic metal knife worn under clothing) to school; and in Amselem, permitting Jews to erect succah, a small ritual dwelling, on their balconies notwithstanding a rue of the luxury condo where they lived that prohibited balcony structures.  


Queers have objected, unsuccessfully, that 'freedom of religion' should not be a licence to discriminate against queers just because they 'sincerely believe' that being queer is a sin.  In Trinity Western, for example, queers lost an argument that the Christian College should be refused accreditation as a teacher's college because it required all students to sign a contract agreeing not to engage in sexual 'sins' including homosexuality.


So it seems obvious that Quebec's 'Charter of Values' would be thrown out because it contravenes the Charter of Rights.  Because the Charter of Rights is part of the Constitution of the country any other law that conflicts with it can be declared null and void.


Right?


Not necessarily.


The Quebec government can throw in a 'notwithstanding' clause.  Any government is permitted to enact a law which they know contradicts the Charter of Rights if they include a section that says the law is valid notwithstanding the Charter.   If the 'notwithstanding' clause is included, the Quebec Charter of Values would be good for five years, after which it would have to be reenacted.  Governments have to think twice about using the notwithstanding clause, because they know that every five years they will have to pay the political cost of enacting a Charter -violating law.


We queers must stand firmly with the religious minorities in Quebec, even though 'religious freedom' is often pitted against queer rights.  Because what is at stake is our country's very soul.  Unless we all recognize that conflicts among rights - religious freedom and queer rights, or any other conflict - must be settled by the courts, we will inevitably end up with the shameful spectacle of governments enacting legislation designed to hurt minorities just to get votes.  And when that day comes, we will be among the minorities targeted for legislated bigotry.


The Canadian Charter of Rights and Freedoms is deeply flawed because it does not even pretend to address the worst inequalities among Canadians - the inequalities created and perpetuated by poverty.  And the Charter is fragile: if ever it becomes politically acceptable to tack the 'notwithstanding' clause onto any piece of legislation which is currently in favour, all of our Charter rights will succomb.


But, as minorities of any kind - sexual, racial, religious, disabled, immigrant, women (though not a minority!) the Charter is all we've got. 





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Wonderful resource for gender training

9/5/2013

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Sam Killerman has just published a wonderful resource for people doing training about gender (and other oppressions).
He is making the pdf of his book available for free.  Check it out - I especially like the genderbread person!
The Social Justice Advocate's Handbook:  A Guide to Gender

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It Can't Happen Here...Thank Goodness!

7/31/2013

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A lesbian couple in France has been forced by the court to recognize the "rights" of the man who donated sperm to conceive the child - even though he had signed a donor insemination agreement waiving all parental rights.
As a result the donor dad now has visiting rights with "his" child.
France has been slow to recognize the rights of lesbian and gay couples. For example it is not legal for two gay men or two lesbians to adopt a child.
In B.C., the question of whether a 'donor dad' has any rights has been answered by the legislature.  As of March 18 2003, a donor is NEVER a parent on the basis of his donation of sperm (or her donation of eggs, as the case may be).
  So a donor cannot claim time with a child; and is not liable to pay child support.



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Happy Day in the U.S.of A!!

6/26/2013

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Today is a big day for U.S. queers.

The U.S. Supreme Court today ruled against the "Defence of Marriage Act", a federal law which provided that same sex partners could not get federal spousal benefits even if they lived in a state where same sex marriage was permitted, and had married.

The case began when Edith Windsor's partner, Thea Spyer died.  The two had married in Canada in 2007, after being engaged for forty years.

Yes, forty years.

After her partner passed away, the federal government ruled that she had to pay more than $300,000 in additional estate taxes because the federal government did not recognize Windsor's marriage to Spyer.

Windsor, now 84, celebrated her victory along with the rest of the country.


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No to Hate Speech about Queers, says Supreme Court of Canada (but...)

2/27/2013

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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.

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Southpaws - what you have always known

12/5/2012

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I'm sure you have noticed that more of your friends are left handed than you would expect...well, it's true.
A Canadian study found that if you are queer, you are much more likely than heterosexuals to be left-handed.  And the association is stronger for lesbians.  In fact, if you are gay, you are 34% more likely to be left handed; if you are lesbians, 91% more likely!  Ray Blanchard, one of the authors of the study published in the Psychology Bulletin, says that this is evidence that at least some part of your sexual orientation is genetically or biologically determined, perhaps in the womb.
  Thanks to Gay Today and Jesse's blog for this tidbit.


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November 02nd, 2012

11/2/2012

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In a progressive judgement, the Federal Court of Canada has decided that there is an  an obligation upon the Refugee Protection Division  to specifically discuss why the Applicant, as a homosexual living in a place where it has been demonstrated that homosexuals are harassed, would not be subjected to persecution as she cannot live her sexual orientation openly. Some GLB refugee claims are thrown out because a person cannot prove that they are queer.  Here the applicant proved that, and also proved that in her home country queers faced persecution.  This is an important case because it says that it is up to the government to show she would be safe returning home, rather than up to her to demonstrate that she would be in danger.  C.C.F. v. Canada (Minister of Citizenship and Immigration), [2012] F.C.J. No. 1346


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Mistaken Identity:  when a woman is read as a man

11/1/2012

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Sheila Gilhooly has published a fabulous new book, "Mistaken Identity" , stories about her life being (mis)taken for a man.  Though cisgendered Sheila is read as male about 70% of the time.
The stories are chilling, hilarious, triumphant. 
There will be a launch at Little Sisters - we'll keep you posted.  And the book is available for preview - go to Sheila's website
http://sheilagilhooly.wordpress.com, and click at the bottom of the page.
Full disclosure: I am Sheila's partner and wrote the afterword. 

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Canada is suspicious of spouses sponsoring their partners

10/31/2012

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Immigration Canada believes that there are "thousands" of fraudulent marriages between Canadian citizens or permanent residents and non-Canadians, and so they are tightening the rules.

Effective immediately, you are allowed to "sponsor" your spouse - defined to include your married partner, someone you have been living with for two years (a common law partner), or someone you are unable to live with because of the laws or social context in your respective countries (for example, consider a Muslim from Iran who is in a relationship with a Canadian: the two cannot live together as spouses in Iran; and Canada may deny a visitor visa).

But now, says Canada, there are two new requirements.  According to Jason Kenney, these new requirements are designed to stem fraud arsing out of fraudulent relationships in which a couple marries solely for the purpose of bringing the non-Canadian to Canada, sometimes for a fee.

The first requirement relates to you only if when you made your application for spousal sponsorship, you had NOT been living together for two years AND you have no children.  In that situation, the law now requires that you live together for two years after you come to Canada. The rule makes an exception if you are in an abusive relationship.  In that case, you should go immediately to your doctor, and report the abuse so it is on record.  Then you should go to a lawyer, or call Immigration Canada, and explain why you have moved out.

The second requirement is that once you are yourself sponsored as a spouse, you cannot sponsor anyone else as your spouse till five years have passed from the date you acquired permanent residency. 

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Lesbian - No, Pansexual - Congresswoman from Texas

8/15/2012

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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? 
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