Airing Some Moral Cum-Socks: Disability, Race, and Queer Men’s Hookup Culture

Airing Some Moral Cum-Socks: Disability, Race, and Queer Men’s Hookup Culture

I present this dialogue largely as it was (any additions I did make to the conversation were made from innumerable exchanges like this one), even though, to say the least, it does not present me in the best light.

I want it to serve four functions. First, it is a fascinating scenario, which shows how the dynamics of power and privilege in late modern society are always fluid and never truly vertical. As my exchange with this unfortunate young man shows, subjects are always already the products of power and are constantly negotiating their position in relation to other subjects, within complex matrices of subjugation and resistance. Second, I desire it to serve as an apology, in both the classical (hence the dialogue form) and colloquial meanings. Persons often wonder, and, I confess, I often wonder myself, why my self-esteem and mood are disproportionately low, despite my relative privilege and many accomplishments. This dialogue is, however partial, an answer to that question. Third, I record this dialogue with the hope that the many complex and ugly power relations it contains may dissipate, by having the light of truth shed on them. This dialogue represents, as it were, merely one “cum-sock” in the basketful of dirty laundry that queer communities hide from the prying gaze of the world and each other. Fourth, for better or worse, it emphasizes and reaffirms my considerable capacity for both oppression of others — and resistance against them — as I navigate my at times subaltern and at times extremely privileged position within the neoliberal capitalist system.

Asian Man on tinder: do you mind me asking why are you in a wheelchair?

Me: I don’t mind giving you the clinical answer to that — that I have cerebral palsy caused by an underdeveloped blood vessel in my motor cortex which impaired muscle coordination and other functions. Yet that won’t really satisfy you. What you really want me to do is solve the problem of human suffering. I do not have the talent, desire, or time to do that. Disability is part of human biodiversity; and it would be like asking you why you are Asian.

Asian Man: oh… I’m sorry to hear that.

Me: So you didn’t understand what I just wrote? Why are you sorry? We all have different privileges and abilities. I benefit from more social capital because I am white, and I have greater education and financial resources. If you really felt bad for persons with disabilities, you would help them. Yet, like most persons, you are caught in this pseudo-emotional masturbatory dynamic, whereby the performance of my suffering “gets you off” and excuses you from having to do anything tangible to alleviate social injustices.

Asian Man: no, actually, we live in Canada: prejudice barely exists. You ought to enlighten your self, and not divide human beings based on race or gender.

Me: what the fuck are you talking about? I routinely do anti-oppression workshops. I have spent my career trying to create a more egalitarian Canada for everyone, and I’m essentially doing a PhD in sociology. I don’t need to be enlightened about postmodern identity deconstruction, though I would point out that your use of the word “enlightenment” in the context of this conversation is really funny. Prejudice still exists in Canada. In fact, this very conversation is an example of it. And in any case, upon what basis are you making this conclusion: do you have a graduate degree? Like me, have you spent several years reviewing and creating social science research? Have you been published and/or presented on the topic as I have?

Asian Man, no… I mean that’s different. Disability is different from race and being gay. I’m just sorry for the challenges you have to go through.

Me: Then, for goodness sake, do something practical about them. Abstract sympathy helps no one. If you’re trying to suggest that disability is based on “natural phenomena,” whereas race is predicated upon — now thought unjustifiable — cultural differences and social inequality, you must answer the question why , not so long ago, the brightest minds in the world understood “homosexuality” as both a psychological and physical illness: some even thought it was brought about by “genetic degeneracy;” and why some of those same scientists also thought that persons of “Mongoloid stock” (that is, those racialized as Asian) were genetically inferior, justifying both the Chinese Exclusion Act, and the internment of Japanese Canadians during World War II, not to mention (sexual) stereotypes concerning “rice queens” that (lamentably) persist in gay discourse to the present. Furthermore, even if one could allegedly justify a scientific difference between race and disability — which is doubtful at best — from the perspective of normative ethics, the classification is morally irrelevant.

Spare me sympathy; I don’t want or need it. What I do need, is better social support; this comes from more awareness and less ignorance among members of the public. And what I do want, like most persons on here, is for someone to blow me.  Unless you are willing to do that while not saying anything stupid, and, from this conversation, that seems like it may be hard for you, I suggest you jump up your own ass and die. Have a pleasant day! :-)

Questioning a Thinly Veiled Attack on the Rule of Law - Edited version for Jon

Questioning a Thinly Veiled Attack on the Rule of law

I certainly hope the national assembly does not use the notwithstanding clause or if it does, that it is brought down by Quebec voters for wonton disregard of not only entrenched schedules of rights but basic common law prohibitions against bills of attainder, even if an action of attainder is not stated by the statute it implicitly targets a discreet and insular minority for no other reason than irrational dislike. This was overruled by the court’s holding in Vreind at para 101-110 [yes I’m just that cool that I have that much time on my hands that I remember the citations from constitutional cases by memory ;P]

As T.R.S. Allen observes in his book Constitutional Justice, whose conclusions are echoed by Luc Tremblay, even lacking an entrenched schedule of rights, the rule of law — that is, the idea that governmental power be exercised in a fair, predictable, and rational manner so as to be transformed into a command capable of being assented to by a free and informed agent as a valid reason for action in her particular circumstances, as opposed to brute force - requires that the liberal state commit itself to certain basic norms. And all these principles are born of the basic idea that a system of well-functioning laws treats all citizens with equal concern and respect. This principle animated earlier cases involving “an implied Bill of Rights,” which was found to protect Jehovah’s Witnesses in Québec from egregious abuses of process and religious persecution simply because the Catholic majority found their teachings and mode of evangelism disagreeable. At the heart of these decisions there lay a conviction that legislation and administrative action be general in scope, and not express particular animus to vulnerable groups. Governments must strike a proportionate balance between pursuing legitimate objectives and protecting the liberties that ensure life is tolerable and just for the greatest amount of persons compatible with equal liberty of others.

The legal ingenuity and constitutional vision of these decisions notwithstanding, they reflect a time in which Anglophone Canada thought it appropriate to engage in a quasi-colonial relationship with Québec and, indeed, non-northern European immigrants when these were permitted to enter Canada at all. Concomitant with the personal human rights revolution, which commenced with the UN declaration of 1948, but only really began to gain steam in the 70s, and in Canada came to fruition with the 1982 constitutional amendment, there has been an equally important movement advocating for the rights of subnational and formally colonized peoples (among whom many in Québec number themselves) for a varying spectrum of rights related to self-determination. A measure of autonomy for Québec, as Daniel Weinstock has recently convincingly demonstrated, is both consistent with and required by the liberal rule of law; for only by granting the national assembly greater autonomy is the Québecois nation within the state of Canada able to pursue policies that allow it to preserve the equal rights of citizens to live in a culture of their choosing that would be assimilated by the Anglophone majority, were it not for state action.

As Québecois minority status is largely a matter of historical accident, much like religion, gender, or disability, this would be unjust. Remember, a fundamental principle of the liberal rule of law contends that persons, whether as individual citizens, or creating a life together as members of historically situated collectivities ought not to experience disadvantage because of morally relevant characteristics. Only with such assurance may individuals be properly said to be self legislating, insofar as we can at least — in a very formal way — say that they are subject to rules they themselves could have possibly created. Because of the fact that freedom and equality are interrelated rights and aspirations, and most often our choices are only given actuality through meaningful interdependence with others, travelling with them throughout a shared historical experience, Québec’s right to determine certain parameters of living together must be respected. Nevertheless, since the reason for such autonomy flows from the Québecois nation’s right to maintain distinctiveness within the larger Canadian federal state, this is autonomy must only relate to this project. The most obvious way that the Québecois nation exercises its right to preserve distinctiveness within the Canadian federal state and North America more broadly is through language laws.

Hence, the federal government (justly and wisely) decided not to overrule Québec’s controversial bill 101, even when its original form was ruled unconstitutional by the Canadian Supreme Court in Ford v. Attorney General of Québec (1988). The government of Brian Mulroney didn’t intervene. It recognized that the language laws had the legitimate purpose of preserving the French language in Québec, under considerable threat at the time. The federal government also recognized how important language is in maintaining a particular culture, way of being in the world, and, by consequence of its world-shaping ability (in this respect, much like religion) the affect its extinction would have on the ability of Québecois to be meaningfully free, insofar as the loss of French would restrict the life-plans Québecois could pursue, built through centuries of common experience. Obviously too, overruling the bill would have violated the principle of equal respect and concern for Québecois, creating a genuine political crisis. This is, however, because language is at the heart of what it means to be a self determining nation, whereas fashion choices are generally thought to be on the periphery of national concern, even when regarding articles of clothing worn by state officials.

The National Assembly’s niqab restriction is a different situation altogether. A robust and capacious conception of freedom of religion and equal protection of the law regardless of one’s affiliation and convictions was not something which was imposed on Québec by the  1982 constitutional amendment. Instead, Québec’s own Charter of Rights — which the National Assembly  often describes as essential to its project of living together offers the same protection to religious freedom and equality as does the national Charter. Unlike the federal Charter the Québec Charter applies to private transactions as well as governmental action. Indeed, it was primarily this fact that led to the Supreme Court’s ruling in Syndicat Northcrest v Amselem (2004), which was decided using the Québec Charter. This was a landmark case which added the sincerity of belief test to freedom of religion jurisprudence.

More broadly, when interpreting and applying either the Québec or federal Charters in drafting and implementing legislation, the National Assembly must be mindful of four interwoven yet distinct constitutional maxims, each supported by extensive case law, and, at a more basic level, justified by the principles of liberal common law constitutionalism articulated above. First, State neutrality does not mean, indeed, is antithetical to the idea that expressions of piety, especially those which are inseparable from the presentation of one’s person ought to be removed from public life. State neutrality requires the opposite; it mandates that government create a public sphere in which all religious adherents — and those with no transcendent convictions — are free to present themselves as they choose, to the extent that such presentation is compatible with the equal rights of every other subject. Second, it follows, therefore, that the state is prohibited from privileging one conception of religion, the proper way to wear clothing, or a systematic and closed comprehensive political doctrine. To do so is not to treat citizens with equal respect and concern into distinct but interrelated respects. By privileging one conception of identity, fashion and or the good life, the state indirectly demeans facets of persons identity (for example religion and/or sexual orientation) that they may construe as intrinsic to their personhood. Perhaps on a more fundamental level, to do so is also to disrespect their dignity as rational agents capable of making reasoned judgements about the nature of a good life. Third, legislation which is facially neutral (like the language of Bill 62 would suggest) may nonetheless offend human rights provisions, if it is demonstrably discriminatory in its impact and/or if the legislative context suggests an impermissible purpose was, in fact, behind the facially neutral one given. Fourth, claims of discrimination ought to be considered contextually with an intersectional perspective, which gives proper consideration to the matrices of oppression and resistance in which a claimant finds herself, and through which she defines her own experience. Though this may seem like a overly progressive position, it is supported by a long line of jurisprudence from the Supreme Court of Canada which culminated in the discussion of intersectional discrimination exemplified by the Whithler judgement.

Specifically, Bill 62 seems to be inconsistent with the SCC’s ruling in R. v.  N. S. (2012), concerning the circumstances under which a witness may wear a niqab while testifying. The majority opinion, written by Chief Justice MacLachlan, and the dissenting judgement, penned by Justice Abella, unequivocally reject the exclusion of niqab wearing women from public life, saying that it is both inconsistent with the Canadian tradition of accepting religious and cultural variation, and that it would further stigmatize an already disadvantaged group. The argument that newcomers to a host society must be courteous and learn to abide by societies laws and customs simply does not withstand scrutiny. This is because of a very simple fact. Both the Canadian Charter of Rights and the Québec Charter offer protection to whomever comes within the jurisdiction of those documents. niqab-wearing-women are following our customs when they exercise their religious freedom and expect equal treatment regardless of this. The federal Parliament and the National assembly have seen fit to constitutionally entrench such values. Wearing the garment, therefore, is not an act of defiance or hostility; it is a noble performance of citizenship, especially when this group of women often confronts considerable and unjustified hostility — would that every Canadian where as committed to upholding and enacting constitutional values

Parliamentarians — whether they are members of the National Assembly or federal Houses — have a duty to legislate in accordance with the rule of law. In this context, the rule of law has the two following aspects. The legislation is invalid simply on principles of manner and form. Assuming the bill does not violate the Quebec charter but is found to violate the Canadian charter, a dubious assumption at best. If the Assembly wishes to breach the law, it must do so explicitly and invoke the notwithstanding clause. Second, the proposed bill is invalid because it represents a not so thinly veiled attack on an already disliked minority, ignoring several centuries of parliamentary tradition, invoking the worst spectres of Canada’s regrettable past.

Unlike the language laws, this proposed ban remedies a threat to no one’s culture, language, or distinct society. The niqab impairs the expression of Québec culture as much as my choice to wear a Sens hockey jersey in Québec instead of a Habs jersey. This law will be overruled by courts, but it is also the task of the federal government to enforce the Constitution. There is no justice in subjecting an already stigmatized group to expensive litigation and public scrutiny, when it is within the power of the federal government to refer this question to the Supreme Court. While much respect ought to be given to Quebec’s distinct society as a matter of constitutional convention, international law, and natural justice, this ought not to allow Quebec to contravene federal law and its own provincial statutes. The niqab ban, in addition to affecting an already insular and often vilified minority is a bill with far reaching and impermissible legal consequences. At the very least,  if the Supreme Court decides to uphold the ban out of deference for the Quebec’s ongoing national project it would need to explain to all legislative houses and all Canadians why it would be hypothetically embarking on such a wide departure from precedent in several key areas, a reference question would allow the court to do this, while saving citizens from litigating an issue that has been effectively decided by the previous case law and ought to have never arisen in the first place.

Judicial Prostitution & Populist Pandering. Or, how I wish I could "benchslap" Justice Giesbrecht for his recent article on benefits accorded to "status Indians"

Find the article of the Justice here to understand my response below

Well before the addition of the Charter to the Canadian constitutional landscape, the great Canadian constitutional scholar F. R. Scott, in an essay reprinted in his 1977 book, Essays on the Constitution, said   the following of the project of constitutionalism in Canada:

[A] constitution confronts a society with the most important choices, for in the constitution will be found the philosophical principles and rules which largely determine the relations of the individual and of cultural groups to one another and to the state, if human rights and harmonious relations between cultures are forms of the beautiful, then the state is a work of art that is never finished. Law thus takes its place, in its theory and practice, among man's [sic!] highest and most creative activities. (cited in Benjamin L. Berger, 2013, “Children of Two Logics: A Way into Canadian Constitutional Culture,” International Journal of Constitutional Law, vol. 11, p. 318).

I intend to show that (former) Justice Giesbrecht’s comments against the extension of full Indian status to women and the concept of Indian status more broadly, make an aesthetic and moral monstrosity out of the artful enterprise of constitutionalism, which is most unbecoming to his (former) office

It is truly a rare thing that an aspiring law student can critique a member of the bench safely. Yet, since this Justice is retired, and since he takes such a caustic tone, I will, thankfully, take that liberty. hopefully with an equal amount of sardonic vitriol. This article its intellectual prostitution. And though my use of the word prostitution may seem inflammatory, the use of prostitution is entirely apt: to prostitute oneself is to commercialize one’s honour (or the honour of one’s former office) in service of shameful purposes

As a preliminary matter, those to the right of the political spectrum often suppose that those to the left of it are enemies of free expression because the latter often questions the ethics and presumption, not to mention sheer irrationality, of the former. This could not be further from the truth. Strenuous criticism does not corrode democracy; instead, it is our strongest bulwark against every form of tyranny. There ought to be no exception for those offering inflammatory alternative conservative perspectives.

His (former) Lordship makes two fatal logical errors. First, he conflates the issue of Indian status (and who ought to have it), which is a political question for Parliament, with gender discrimination, which is most properly a constitutional issue. Second, by cavalierly employing the word Métis, the (former) Justice ignores culture and history’s crucial role in forming identity, and is guilty of a performative contradiction: he engages in biological reductionism, which is one of the things he finds most egregious about the Indian Act. As a private citizen, the (former) Justice is, of course, entitled to advocate for whatever radical political change he wishes, but the question of Indian status has been dramatically settled by resistance to Pierre Elliott Trudeau’s White paper and the subsequent constitutional entrenchment of aboriginal rights. They were entrenched precisely so they would not be vulnerable to the venomous vicissitudes of right wing populist pandering.

It’s a good thing that His (former) Lordship has retired from the bench; for he seems not to understand the basics of Canadian constitutional law, apparent to me, not even yet if first year law student.

Gender equality (section 28) is not subject to the notwithstanding clause of the Canadian Charter of Rights and Freedoms (section 33). This means in principle that any legislation found to violate gender equality can be saved by section 1) the reasonable limits clause); but less flexibility ought to be accorded to Parliament when it decides to abrogate gender equality than with the restriction of other rights. And, in any case, any limitation of a right must pass the stringent requirements of the Oakes framework. The Indian Act is a federal statute. Like all other federal statutes, it is subject to The Charter. There is an obvious case of discrimination, which would likely not pass any of the branches of the Oakes test (valid purpose of legislation, rational connection between the legislation and impugned objective; least drastic means chosen for impairment of the right, and proportionate balance between the deleterious effects on the claimant and benefit to society as a whole: R. v. Oakes, [1986] 1 SCR 103).

The court has said repeatedly that monetary concerns can only override the operation of the charter in the most extreme cases. If this were not the case, virtually any form of government malfeasance could be justified under utilitarian grounds. Rights do very little if they are subject to (overly simplistic) economic analysis. And I stand by the statement issued in Summers (the case which ended slavery in most of the British Empire) – “let justice be done, though the heavens may fall”.

His (former) Lordship would likely point out to me, in a tone sanctimoniously decrying “judicial activism”, with famed piety for the maintenance of democratic institutions (read, systems of white, male, heterosexual, upper-class privilege), that The Charter is not an instrument of “social reform”. Instead, it is a document meant to constrain government action. This is correct. The government is under no obligation to provide those specific benefits under the Constitution. Nevertheless, once it has done so, it must administer government ameliorative programs in a manner consistent with The Charter. underinclusive (that is, sexist by omission) legislation violates the Constitution, per the Supreme Court’s ruling in Vriend v Alberta [1998] 1 S.C.R. 493.

More disquieting, were he still on the bench, is his refusal to take the ethical advice of the Canadian judicial Council, which states the following in its ethical guidelines: “Judges should strive to be aware of and understand differences arising from, for example, gender, race, religious conviction, culture, ethnic background, sexual orientation or disability” (Canadian judicial Council, 5.2, 2004, Ottawa Ontario,). I do not believe the level of disdain and envy demonstrated in this article, not to mention and apparent wilful obliviousness to the actual circumstances of the vast majority of status Indians, is indicative of the kind of cognitive empathy required of an impartial spectator that the Judicial Council imagines in the above quotation.

In commentary to this section, the Canadian Judicial Council goes on to cite, Eldridge v British Columbia (AG) [1997] 3 S.C.R. 624 for the proposition that equality does not entail equal treatment in a formal sense. Rather, it entails equal respect and concern, following Ronald Dworkin’s constitutional principle (defended forcefully in his 1977 classic, Taking Right Seriously), in a substantive sense. This requires considering the actual circumstances of the majority of status Indians, and the intersecting challenges that they face. Only a man with little conception of marginalization and dispossession could envy the vast majority of status Indians their position within Canadian society. The purpose of section 15(2), confirmed by the Supreme Court in R. v. Kapp, [2008] 2 S.C.R. 483, 2008 SCC 41, is to protect government assistance programs from conservative attack predicated on formalistic equality arguments.

Only a man with colonial presumption could actively undermine the goals of reconciliation, especially as they are in a critical and fragile state presently. The preponderance of sociological, historical, legal, nutritional, epidemiological, educational, and criminological evidence punctures innumerable holes in his contrived fantasy of the entitled Indian, who lives in grandeur, at the price of hard-working taxpayers.

A diatribe like this, yes, even (or especially) from a retired Justice, brings the honour, neutrality, cognitive empathy, and constitutional stewardship that ought to be exemplified by members of the bench into the most ignominious disrepute. It is natural to question the kind of reasoning and (lack of) contextual sensitivity he offered while on the bench.  His retirement did not entirely relinquish his sacred duty to defend and propagate a just and equitable interpretation of the rule of law.

In the interest of greater empathy and understanding, I would commend to all the following words of Chief Justice MacLachlan, which she rendered in Mitchell v. Canada (Minister of National Revenue.), [2001] S.C.J. No. 33, [2001] 1 S.C.R. 911 (at para 9, citations omitted):

Long before Europeans explored and settled North America, aboriginal peoples were occupying and using most of this vast expanse of land in organized, distinctive societies with their own social and political structures. The part of North America we now call Canada was first settled by the French and the British who, from the first days of exploration, claimed sovereignty over the land on behalf of their nations. English law, which ultimately came to govern aboriginal rights, accepted that aboriginal peoples possessed pre-existing laws and interests, and recognized their continuance in the absence of extinguishment, by cession, conquest, or legislation. At the same time, however, the Crown asserted that sovereignty over the land, and ownership of its underlying title, vested in the Crown…. With this assertion arose an obligation to treat aboriginal peoples fairly and honourably”.

How does this factually inaccurate and legally naïve article, from a former member of the bench no less, further these laudable aims or acknowledge the truly tragic and appalling historical fact of colonialism? I want to be a judge as a lifetime vocation. I’m glad he retired before I had the chance at one of society’s most esteemed privileges — that is, to be called to serve on the bench. Otherwise, I would be most ashamed of the office, just as he ought to be of this article.

He ought to go back to law school, and he needs to see conditions on multiple reserves. Because he is a former Justice, a position of considerable education, wealth, and distinction, I think I can be forgiven for my lack of sympathy, should he be, in fact, missing out on a “gravy train”.

Don't Rain on My Parade: Why Uniformed Officers Oughtn't March in Pride

I thought I would take a few minutes to explain why I am offended at the suggestion that queers who request that uniformed police officers not march in the Ottawa Pride Parade are engaging in legally cognizable discrimination comparable to that which members of LGBTTIPQQ2S communities experience(d), allegedly primarily in the past.

Let me begin by expressing my utmost respect for the vocation of law enforcement. Anyone who risks his life in the service of others deserves our gratitude. I would submit, however, that it is because of my respect for this calling, and my sincere belief that duty ought always to supersede our personal inclinations, especially when one has the privilege of holding power flowing from public office, that I believe any officer with a sense of duty and the public interest would refrain from marching in capital pride while in uniform. This, as I hope to demonstrate, is in keeping with the ethics that ought to inform the contextual execution of his responsibilities.

It is important to begin with an acknowledgement that Canada has always recognized that no right is absolute. Though police officers’ right to freedom of expression is engaged by the decision (not to) march in a parade, these are highly limited by the nature of their office and the context in which their uniforms are worn. No one has an abstract right to wear an official police uniform. Indeed, impersonating an officer is a crime under the criminal code. Wearing a uniform is a privilege that persons acquire while they hold a public office, by virtue of which they are vested with the power to exercise the state’s (il)legitimate monopoly over violence. In this sense, when Jane Smith is in a uniform she crosses a boundary and surrenders part of her private identity. She becomes constable Smith, vested with the power to kill under certain circumstances. While acknowledging the services that police officers render, and the protection, however faulty, the offer queer communities, their uniforms are designed to embody state repression and coercion. It is simply ludicrous to protest otherwise. Because of the connection between an officer’s uniform and his powers of authority, having uniformed officers present while they are not on duty, confuses the roles of participant and monitor and, even if this is against the best of intentions, gives the impression that Capital Pride supports the coercive power of the state.

While acknowledging the progress that has been made, the coercive power of the state continues to use force to disproportionately discipline queer communities, particularly its most vulnerable members, such as trans-women, sex-workers, those in conflict with the law, and/or persons with HIV-AIDS. The Ottawa Police Department has never issued a formal apology, and the RCMP has never apologized for its shameful treatment of queers, much of which the force conducted on its own initiative, despite several federal reports urging it to desist. An apology would be a concrete step in the process of healing, and so to would be queer-police dialogue that goes beyond the boundaries of homonormative upper-middle-class whiteness. We could easily have lesbian and/or trans spectators of and/or participant in the parade who are triggered by memories of police heterosexism and indifference, at best, and sexual and physical assault, at worst. It was a past time for police officers to sexually and physically assault lesbian women until as late as 1970.

As a sexual assault survivor myself, I would find it more comforting if such a masculinist and authoritarian presence were not at an event, which originally represented freedom from and opposition to heterosexist policing, in both the actual and metaphorical sense.

Furthermore, Ottawa’s queer communities are only beginning to recognize the struggle and the exclusion experienced by members who are black, Indigenous, and/or racialized in some other fashion. We also have a disproportionate number of members who are homeless. How can we \ condone police conduct towards them. This is not the path to queer liberation, Indigenous reconciliation, and/or racial justice. This is nothing more than the resurgence of male chauvinism and an erroneous sense of wounded pride without concrete actions of charitable contrition.

No one has a right to wear the vestments of a public official. In addition, when one becomes a public official one of the costs of the privileges that are born of an assumed office is an increased susceptibility to criticism for collective wrongs. I find the reaction of the Ottawa Police Chief to be a discredit to is office. If his true mission were to serve and protect all communities in Ottawa, he ought to quietly put the process of healing and reconciliation above his own comically wounded straight and masculinist ego. Forgive me if I hurt his feelings, but words, especially true ones, do far less damage than bullets, and he is the one with the gun.

It wasn’t so long ago that police officers were actively trying to stop pride celebrations. Of course, only an ungrateful idiot would downplay the fact that that is no longer happening. But now I fear a more sinister enemy is facing queer communities today. A man of the state who offers us liberal heterosexism with a rainbow makeover but who is not himself radically changed by the encounter. Police officers are not the victims here; we are. They have plenty of other fabulous pomp and circumstance specifically dedicated to them. Yet they, along with corporate and governmental interests, are constantly trying to co-opt the energy generated from erstwhile grassroots social activism for morally dubious purposes. This does not bode well for the constant but vital task of holding the state accountable for its past, present, and future violence.

However penitent the police may appear, their actions and the actions of their supporters, (at least in this particular scenario) betray less desire to enforce inclusion and equality and more of the bullying tactics many of us not in a position of power were used to seeing on the schoolyard, and which have, alas, carried through to the banality of violence that characterizes our everyday lives of pride and shame.

Police officers should show their pride like everyone else. They have no business doing so in uniforms specially designed to signify state violence. To claim discrimination based on a polite and well-founded request makes a mockery of Canada’s Constitution and the vocation of police officer itself

The Abortion of Reason: Reflections on Moral, Political and Legal Reflections on Today's Anti-Choice (Putatively Pro-Life) March

Introduction

As today is the so-called March for life, I thought I would take some time to explain why we have no abortion law, and why I think we should not have one. Often, there is a lack of clarity in the debate, so maybe it is helpful to offer some rather than getting lost in the mire of choice and life rhetoric. Let me just say from the outset that I applaud democratic engagement on all topics, especially this one.

Relevant historical considerations

·       Abortion laws arose alongside the development of gynecology and obstetrics, at the time a predominately male field of study and practice. Gynecologists resented the control the undisciplined practices of midwifery had over women’s bodies and the subject area, so they used abortion as a discursive tactic to discredit midwifery and assert their own authority. Concomitant with this development and, indeed, in part, because of it, women’s bodies were subject to an increasing patriarchal medical gaze.

·       It is no surprise, therefore, that laws attempting to regulate (primarily women’s) reproduction, sexuality, and parenting, have disproportionately targeted and/or affected citizens who were already marginalized by an unjust capitalist system.

·       Criminalization was not very effective in stopping a significant number of abortions. And it is difficult to gather statistics, because many went unreported by virtue of being illegal. Because of their clandestine nature and lack of proper safeguards, these abortions were rather dangerous. It’s more difficult to treat a botched abortion than it is to perform a proper one.

·       There has never been a legal, nor even a Christian, consensus on “the sanctity of life” or when life begins. This has changed with science. For several centuries, the Catholic Church allowed abortion until quickening.

·       Any claims to “sanctity of life” by religious authorities and their pretensions to ethical superiority, should be tempered with the observation that the Catholic church once seriously debated the question of whether women and Indigenous peoples possess souls at all, and especially the very “important” question of whether they were equivalent to those of European men.

Legal Arguments against Abortion Law

COMMON LEGAL PRINCIPLES

·       There is an important distinction between individual morality and the political (shared) morality of the community — as these principles are embodied by laws as an overlapping consensus, and/or societies general will.

·       Criminal law ought to be based on only those issues on which there is an overlapping consensus

·       To prevent important violations of liberty from the state, citizens ought to be afforded liberty unless and until actions are prohibited by the state. If it were otherwise, citizens would not be able to govern their conduct according to legal principles.

·       Individuals ought to respect laws on contentious issues; for law is a product of compromise, and without compromise and mutual fair play, society could not function.

·       The government is constitutionally prohibited, both by section 28 and section 15, from discriminating based on sex. Section 28 is not subject to the notwithstanding clause, so if abortion laws were found to violate section 28, which I think they do, this judgement could not be overridden by Parliament, as for example, same-sex marriage — at least in theory — could be.

·       Both empirically and normatively, Canada is a multicultural society with many visions of the good life, which hold widely differing conceptions of what human personhood is and when such personhood begins. Domination of the majority or a minority is both ethically unacceptable and impracticable in the current context.

WHY WAS ABORTION STRUCK DOWN?

 In the first charter Morgenthaler case, the Supreme Court struck down the Pierre Trudeau’s administration partial decriminalization of abortion because it was found to violate section 7 rights. Section 7 guarantees the right to life, liberty, and security of person, and the right not to be deprived thereof, except in accordance with the principles of fundamental justice. At the time this case was decided, the court had identified arbitrariness as one of the fundamental principles. Hamish Stuart describes section 7 as a test of instrumental rationality. In layperson terms, it would be bad if legislatures made irrational laws. In order to assess a law, adjudicators look to its pith , substance, and purpose. This is determined by several factors, including, but not limited to, legislative debate, preambles, structures of acts, canonized rules of interpretation, and so forth. At the time, the Trudeau administration decided to institute therapeutic abortion to protect the health of women. This was the policy that was democratically chosen by Parliament. They did not reference the sanctity of life, the dignity of women, or any other theological principle.

Since this was the obvious legislative purpose, the abortion regime was found unconstitutional because it was administered unevenly and unfairly throughout the country. Far from promoting women’s health, that regime endangered the health of many women. While presenting serious liberty infringements, the main issue was the security of person interests of women affected by the law. As a side note, one can also argue that the law infringed equality concerns on several grounds beyond sex discrimination, favouring those who were married, had money, and lived in certain areas. Importantly, this was not “an activist” decision. The court did not rule that abortion restriction is unconstitutional (with respect, they should have), rejecting Justice Wilson’s link between abortion and conscience. They did not say that Parliament could not legislate on abortion. They merely said this particular law was unconstitutional. It was a bad law. Parliament may legislate on abortion. I believe it would be unwise to do so, but as the law stands they are free to do so. They have not managed to pass any bills on this matter. And it very well could be found unconstitutional now.

SUBSEQUENT DEVELOPMENTS IN LAW

Additional principles of fundamental justice — Following  the Morgenthaler decision, the court has recognized overbreadth and gross-disproportionality as principles of fundamental justice. Though it is unclear what role, if any, overbreadth would play in judicial challenges to an abortion regime, it’s clear that gross-disproportionality would invalidate the law because the law would infringe section 7 interests, out of sync with any reasonable objective; it is would be a grossly disproportionate burden for many women, and indeed possibly women as a class. In addition, cases such as Carter and PHS have a much broader definition of the right to life, and when it is infringed, particularly in the case of matters of health. Moreover, the Hutchinson case recently established that unwanted pregnancy, because of the complications that may arise, constitutes risk of bodily harm. This would engage section 7, and it would almost certainly render abortion laws unconstitutional.

Developments in section 15 jurisprudence — Following Morgenthaler, equality jurisprudence recognizes the importance of human dignity, historical disadvantage, stereotypical treatment, and the value of feminist jurisprudence and charter interpretation. While abortion may or may not offend the dignity of fetuses, they do not have rights, whereas women residing in Canada do. Forcing women to carry fetuses they do not want perpetuates historical disadvantage and stereotyping, by suggesting that the primary function of women is to carry children, and they are not capable of making decisions affecting their own bodies. By subordinating her desires to the interests of the state, the state is essentially treating her as a means and not an end. This is only justifiable in a state of emergency or war .

Developments in State Neutrality Towards Religious Belief and conscientious convictions — Though there are many putatively secular arguments against abortion, nearly all of them rely on some sort of essentialist ontology of the human person, and most persons who oppose abortion come from a religious background. Just because a law comes from religion, it doesn’t preclude the state from enacting this provision of law. Indeed, many religions, as well as nonreligious worldviews, create overlapping consensus on moral questions, arriving at similar convictions through different means. Nevertheless, the ongoing connection between religion and pro-life advocacy ought to give us pause, considering that the state has a duty to be neutral in matters of personal conviction where there is considerable disagreement.

WHY AREN’T FETUSES LEGAL PERSONS

Numerous decisions have stated that fetuses are not legal persons. The reason fetuses are not legal persons (entities bearing rights capable of legal [e.g. corporations] and natural [e.g. born human beings]) personhood at law is that they cannot be invested with rights or responsibilities because they do not have agency and/or an independent biological existence from their mother. Strictly speaking, Parliament is not prohibited from legislating that unborn babies are persons. It has not done so, however. It has chosen to maintain the common law definition. The reason it has chosen to maintain the common law is mainly pragmatic. If the fetus were a legal person, this would create a host of complicated problems. Is it permissible for a disabled child to sue her parent for possible conditions acquired during pregnancy? If the life of the mother is at stake, which life ought to take priority and why. Should we incarcerate reckless pregnant women. These are complicated questions, which ought to be decided by Parliament, not the courts. Again, as part of the democratic process, Parliament has — wisely in my estimation — chosen not to change the common law definition

Moral Arguments

IS NOT A FETUS A HUMAN BEING?

A standard argument against abortion is as follows: anything that exists in potential has the right to develop to its full actuality, so because the fetus could develop into a functioning human being, Mozart or whoever, it ought to be protected and given the rights of a full human being. There is a deep problem with the Aristotelian ethical logic that undergirds Christian theology. According to traditional moral theology, if I think about stealing or murder, long enough, if I really dwell on that, it is equivalent to me having actually completed this activity. It is true that in very special cases, mainly for public safety, the law punishes acts that have been committed in potential, as it were, like conspiracy to commit murder, but generally modern persons have a much more developed conception of actuality and potentiality. If abortion were made illegal once again, it is difficult to see where this chain of causation would end. At least the Catholic church is consistent in opposition to contraception, but if any action or technology that disrupts the putatively natural process of procreation is unnatural, then one could conceivably argue that potential sperm are part of future life, and so masturbation ought to be punished as well. Good luck enforcing that law. As a popular battle cry goes — if abortion is murder, fellatio is cannibalism!

ONE CANNOT CLAIM THAT ABORTION IS EITHER “NATURAL” OR “UNNATURAL”

The Naturalistic Fallacy is a basic principle of modern ethics, whereby one cannot derive an ethical command from a descriptive or putatively natural fact. Nature cannot serve as a guide for ethical judgement. My response to those who call anal-sex, for example, an unnatural form of intercourse is to argue that even if it is an unnatural form of intercourse — itself a premise flying in the face of zoological evidence — rape is a form of intercourse perfectly natural to most mammalian species; yet most of us would consider it to be reprehensible. The opposite holds true as well. If the naturalistic fallacy did in fact tell us anything, we would have to conclude that abortion is acceptable because it is natural. Somewhere around 20% of all pregnancies miscarry. I am in no way trying to minimize the pain of such losses: I merely suggest that nature cannot be a guide either way.

BODILY INTEGRITY AND PERSONAL CONSCIENCE

One must not use moral agents entirely as means because they deserve respect as an end themselves. Supposing for a moment that the fetus is a fully grown adult, capable of usual intellectual reasoning, feeling the full gamut of pain, and entitled to all the same legal rights, it is unethical to tie someone to an intravenous machine and impair her functioning, so that that person can remain alive. This would still hold true if we use a less drastic metaphor like forcing someone to remain in a wheelchair for nine months, so that another person who they don’t know can stay alive. And it would still hold true even if they had partial culpability in her dependency. I think pregnancy is much more drastic than being in a wheelchair for nine months, however. As natural and joyous as some may find it, the end process is incredibly painful, and, yes, even with modern technology, it is life-threatening. Forcing someone to give birth when she does not want to  essentially inflicting the world’s most excruciating pain upon her without her consent. As morally questionable as some choices to abort may appear, I would never do this to someone against her consent. Pregnancy, wonderful though it sometimes maybe, forces a woman to carry a parasitic life form that may kill her and jettison this life form, by means of violent muscle contractions, outside of her body. “In sorrow thou shall conceive,” indeed. Women should be allowed to refuse the patriarchal edict of the chauvinist Israelite war-God!

Being used as incubator or respirator for a developing life form or an adult person would be more reprehensible, if I hated the person in question, and being with him cause me great suffering. They could be a constant reminder of my sexual assault, bad relationship and/or social subordination . This action may be commendable; it ought not to be obligatory! The point is it is unethical for a party possessed with the power of the government to compel me I must do so. That is equivalent to torture. The situation is different when the fetus has left the pregnant woman’s body. Then she can access support; move independently of her child; and even give the child up for adoption. The child is not actually part of her body, and so she does not have the same ownership and interconnection with it as she did when she was pregnant. The fetus, or, indeed, the person I kill, by removing myself from the intravenous life-support machine may or may not feel pain; it may be bloody, gruesome, unpleasant, bad for my health, indicative of the culture of nihilism, or whatever other social ill persons who sanctimoniously claim to be pro-life level at those who believe in abortion. The fact is one cannot ethically force me to be tied to that machine for nine months, if one cares about anyone’s life beyond the life of an imagined fetus. As a person with a disability, I am particularly aware of the lasting damage caused by ongoing and unwanted corporeal violations.

WHY IS IT ONLY HUMAN LIFE?

I am always struck by the pro-lifers who are meat eaters. A pig, for example, has the intelligence of a five-year-old child. Whatever suffering is experienced by the fetus, it is nothing compared to the excruciating misery caused by factory farming. This isn’t to deny the importance of anthropocentric religious conceptions of the human person for some citizens. Nevertheless, once the argument admits this point, it becomes difficult to justify legal prohibitions against abortion: they have moved out of the overlapping consensus of political life and become part of a particularistic and environmentally problematic worldview.

QUALITY OF LIFE FOR PERSONS LIVING

Persons frequently inquire of me something like the following: how can I, as a person with a disability, actively support abortion when so many persons with disabilities often don’t get to live in this world precisely because of abortion? Are not our lives equally valuable? Does this not amount to a kind of cultural genocide? To which I must answer yes, in part. In general, the world is overpopulated, and human beings are wreaking havoc on the planet. Persons in the global North are consuming far more than those in the global South: the last thing we need to do is be having more children. Clearly, I would like to see the kind of structural transformation that has every person regardless of her perspective disability, race, and/or socioeconomic status supported.

At present, however, it is difficult, if not nearly impossible, to see beyond the unjust structures of neoliberal capitalism. I realize that this is a-chicken-and-egg scenario, but, frankly, my support of abortion, at least in part, comes from principled self interest. We do not take care of the socially disadvantaged persons we have in our society. Persons with my level of mobility impairment must fight for is every resource which we acquire, and I live with guilt because I live in a modicum of comfort. Remember too that this is in Canada, which is an extremely affluent postindustrial society.

Can any of us really comprehend the abject subaltern condition of disabled persons in the global South. It isn’t to say that once they are here, disabled persons do not live lives of quality with tremendous interdependent love. To maintain that and protect that, we must staunchly refuse abortion laws, and I find the deployment of disability to support antiabortion laws, simply because a particular person may or may not have existed on account of abortion, to be a strange example of narcissistic egoism as erroneous, if not more so, than my narcissistic self interest in supporting abortion. The pro-life movement does not have moral legitimacy until every child is fed and loved: only then may abortion become an issue of moral significance.

AGAINST THE FETISHISTIC IMAGE OF THE CHILD, NATURE, AND MATERNITY

The Nazi practice of euthanasia is well-known and comes up as a red herring in many arguments. Nevertheless, what is less often discussed is the other sinister side of these sorts of dark biopolitics — namely, the Nazi breeding program. Every totalitarian regime, starting from the Persian Empire, has relied on control over women’s bodies and the maintenance of heterosexist ideas concerning sexuality as primary indicators of national health. The Jews were a threat to the purity of the German blood, and some women had to reproduce like cattle to ensure the health of the German nation. In his book, No Future: Queer Theory and the Death Drive, Lee Edelman labels this sort of rhetorical strategy reproductive futurism. While not endorsing all of his theory’s hedonistic implications, I do resent that the child, and particularly “the poor and innocent fetus,” which pro-lifers parade around like some idyllic-yet-macabre talisman, becomes the primary means through which the modern biopolitical state exerts unwarranted control over its citizens. It is for the sake of the imaginary child that we are deferring enjoyment. Yet we ignore the suffering done to fully developed children, as well as the suffering and ideological pressure exerted on women’s bodies.

Nowhere is this more apparent than the nauseating speeches given by women who regret their abortion at pro-life rallies. Voluntarily re-assuming their subjugated role as feminine helpmate, they speak of their horrendous transgression as crowds of men and women cheer. In this pantomime of self-righteous repentance, the women brand themselves with a proverbial scarlet letter. This signification of, “woman who once had an abortion” becomes a badge of honour and a mark of shame as the women are consumed and effaced by the ceaseless and destructive cycle of heterosexual reproduction, ready and willing to be submissive and inseminated like cattle.

Children and pregnancy are wonderful aspects of the human experience: persons should enjoy these when and if they want to do so.

Conclusion

Restrictions on abortion are unconstitutional, heterosexist, antidemocratic, patriarchal, irrational, presumptuous, and unwise, bloody fetal tissue be damned!

Reflections on "Woman's World" by Cher: Critiquing the Narrative of Normative Diva Empowerment in Popular Culture

Woman's World by Cher

Unsurprisingly, this is my prewriting warm-up song! :-) I find this video particularly fascinating, and Cher's career fascinating and general, for the ways in which they express some of the contradictions in modern gender politics in popular culture.. I do not question her authenticity, strength of character, struggles in the entertainment industry, and/or talent; but the contradictions in the video give us cause for reflection about the confused contemporary ideology of gender.

While the video takes special care to "represent" cis women of all ages, colors, body sizes, and abilities, it is Cher, a white (" and part Cherokee") cis woman, who is the focus. , She has maintained iconic status into her elder years. Nevertheless, she has only accomplished this by virtue of considerable plastic surgery that maintains an impossible body image, notwithstanding the positive effects of her status on public perception of the elderly. She proclaims emancipation for cis women in a manner that contradicts reality, yet it is reiterated everywhere you turn, from cosmetic commercials to government policy documents.

And she does so in a masculinist discourse, which will primarily appeal to gay men, who are now her principal and loyal audience. These men, including myself, keep her and Madonna alive by means of a crypto-misogynist pastiche to the Virgin Mary; for pop culture — and gay culture in particular — loves the Diva as an enduring form of feminine idealization and subordination. We keep these women alive through repetitious drag queen performances, and there is no consensus as to whether such performances help or hinder the cause of transgendered persons and, if so, to what degree. One's allegiance seems to be defined by whether one takes "bell hooks' approach to Cher" "or Judith Butler's". And what a drag they both seem to be, in very distinct ways.

And this, like all other issues of genuine intellectual interest in the study of culture and politics, seems at once incredibly trivial and vital to and emancipatory politics. In addition, such musingsare likely to "trigger" someone's insatiable urge, even if this desire is eventually suppressed,  to shame me, as a natural, yet disproportionate, response to a world that is, alas, quite unresponsive to those who are in pain and need assistance.

So who's world is it really? It's the same world we've always had but with more confusing contradictions. I pity the putatively "general public". I'm fairly educated in this stuff, reasonably intelligent, and queerness as part of my daily experience. I can't make sense of what's going on and what the future will hold. Maybe, since rigid categories have been used to subjugate persons, that will prove to be a good thing in retrospect.

But it is these very contradictions that make contemporary forms of heterosexist, colonial, ablest, cissexist, and patriarchal oppression more insidious and enduring, and, unfortunately, increasingly difficult to challenge. I see no utopia in anyone's future, either coming from the left or the right. Queer theories, religions, feminisms, deconstructions, Indigenous critiques, Marxisms, and liberal democratic theories cannot in and of themselves make society great again. What we need is constant vigilance, struggle, dialogical engagement, and the fearless pursuit of free critical Inquiry. In a time of near global disaster, it may seem self-indulgent to analyze pedestrian cultural products. Nonetheless, in such products, we see ourselves more clearly than in our grandest aspirations and the contradictions arising therefrom. Consequently, the line between political and cultural critique is as false as the vision that Cher offers, yet it is perhaps equally compelling to our enjoyment as the catchy pop song she and her characteristically outlandish hairstyles