A Late Open Letter Protesting Ontario's Sex Education Curriculum Reversion

Wednesday, January 30, 2019

Dear Mr. Ford,

[1]             I am writing in vain, given present litigation of this issue, to respectfully ask that you desist from your defense of the unconstitutional reversion, (in part) to the 1998 sexual education curriculum.

[2]             Your actions exclude gender and sexual minority (GSM) students, perpetuating historical disadvantage and stereotypes. You also denigrate persons coming from GSM families. By deliberately barring their familial models from the curricula of public schools, you send a clear message that those who identify as a GSM and are in a GSM family, are less worthy of equal respect and concern. You communicate that they and their cultural practices are not welcome in Ontario’s public schools.

[3]             I am a doctoral student at the University of Ottawa, who specializes in the role of shame in litigation regarding religious freedom as it intersects with sexual orientation and gender diversity. I analyze how shame has shaped GSM identities, often for the worse, and contributed to maladaptive behaviour, thereby limiting their equal participation in society. Consequently, I am professionally and (as I shall argue below) personally uniquely qualified to offer you a detailed analysis of this problem. Specifically, I criticize how misogyny is an integral part of (hetero)sexism (the belief or implicit assumption that cross-sex attraction and a heterosexual orientation is the natural, preferred, and superior manifestation of erotic desire and romantic pairing). (Hetero)sexism has reinforced historic patterns of male violence within settings such as law, education, healthcare, and the Armed Forces.

[4]             GSM students have felt (and continue to experience) shame in public education.  Many of them do not have the familial support of other minority groups, whose traditions and (racialized) differences are taught by friends, parents, guardians, and relatives. As such, it is particularly important that public schools provide a positive and shame-free environment. This setting ensures that GSM students reach their full potential.

[5]             Current research in the social sciences suggests that shame is not a brief experience that merely is psychological, a part of growing up, or something with which everyone must deal. Instead, shame is a psychosomatic phenomenon. Repeated experiences of toxic shame adversely influence our emotional responses, brain structure, and development, as well as bodily comportments. Not only does this contribute to the subordination of marginalized groups, but it also places them at increased risk of heart disease, (sexual) assault, stroke, depression, dissociation, posttraumatic stress disorder, and conflicts with the law.

[6]             Three main theories explain the wrongfulness of discrimination. It is essential to connect all of these to shame. The first holds that it is wrong for a government actor, or private official who must follow public anti-discrimination legislation, to manifest animus toward a particular group in specified contexts. The second relates discrimination to dignitary harm. The third argues that discrimination is a limitation on a person’s protected core of freedoms concerning which they should not have to deliberate when receiving public services. Alternatively, we may call deliberative liberties potential attributes the condition of whose manifestation the state must protect. I shall deal with these three exceptions of discrimination sequentially.

[7]             The Ontario Court of Appeal ruled in ET v Hamilton-Wentworth District Schoolboard (2017)  that the previous curriculum was constitutional. Also, it stated that the religious freedom of parents who object to the teaching of gender and sexual diversity was not engaged (at para 95). Consequently, it is difficult to see how reversion to the old curriculum is not an endorsement of those who use the debate over sex education to express thinly veiled animosity towards GSM’s and their practices.

[8]             We should examine discrimination claims in their context to evaluate the extent of the discriminatory impact properly. In this situation, the discriminatory nature of “sexual traditionalism" becomes apparent when we consider the long-standing theological-medical-legal assumption that GSM’s, and mainly, their alleged deviant cultures and sexuality, are a unique threat to children, the (intellectually) disabled, and persons otherwise thought of as innocent. As well, and especially concerning anal-sex, it is imperative to consider the entrenched disgust anxieties that have animated opposition to GSM practices and identities. Such fears paint those who transgress the cross-sex penetrative sexual paradigm as improperly gendered, psychologically disturbed, cruel, evil, and subhuman. Taken together, these erroneous stereotypes and prejudicial assumptions produce a cone of silence circumscribing discourses of anal-sex and other GSM activity. A liberal society committed to human dignity (such as Ontario professes to be) must eradicate this cone of silence.

[9]             It is true that a liberal society must make room for differing perspectives regarding matters of ultimate concern, but a genuinely free society cannot survive without a fundamental commitment to the equality of all citizens. The equal worth of all citizens is a constitutional value that the state always has an interest in promoting. It should suffuse the curricula of public schools. It ought to be the task of public schools to teach a collective ethos in keeping with the evolving norms of our liberal democracy. This democracy should never surrender the noble aspiration to treat citizens with equal respect and concern. By deliberately marginalizing gender and sexual diversity after the creation of a more inclusive and contemporary curriculum, your government sends a subtle message that Ontario believes GSM’s and GSM cultures harm children.

[10]         Moreover, your noncompliance website seeks to punish educators who, perhaps at the request of a student, wish to discuss GSM’s in their classroom. The Canadian Supreme Court case of  Chamberlain v Surrey District Schoolboard (2002) discussed similar problems. Some parents feared the possibility that their children may encounter material discussing same-sex-parented-families in kindergarten. After noting that the concerns of religious parents were also crucial to decision-making, former Chief Justice MacLachlan (speaking for the majority) concisely stated that "tolerance is always age-appropriate” (at para 69). In passing, your teacher reporting strategy causes an unnecessary chilling effect upon freedom of expression, which the Charter also prohibits.

[11]         In addition to endorsing the sentiments of the former Chief Justice, I would add that there is no valid nontheological ground upon which one may object to GSM’s and GSM behaviour. Consequently, by adopting the views of (principally religious) interest groups, your government offends the constitutional guarantee of freedom from religion, while attempting to protect freedom of religion. This contradiction, in my respectful view, is an absurd result.

[12]         Were I to accept the doubtful proposition that this decision was not prejudicial, your lawyers ought to agree with me that Canadian discrimination law examines the effects of an impugned measure and strives to achieve substantive equality rather than formal equality. This commitment to substantive equality obliges legislatures and reviewing courts to scrutinize the impact of a legislative distinction or omission in its entire context. A substantive and contextual equality analysis has been the governing approach for 29 years (Andrews v Law Society of British Columbia, 1989). Moreover, in  Vriend v Alberta (1998), the Canadian Supreme Court determined that fear of and an environment of sexual orientation discrimination is equivalently objectionable to direct discrimination. This environment may cause persons to conceal their true sexual (and gender) identity. Such circumstances often create unnecessary shame and fractured self-images (at para 102).

[13]         Parents have the right to oversee their children’s education. Nonetheless, in various circumstances, especially relative to the age of the children, these (potentially GSM) children have overriding rights. They have a right to receive a sexual education that is relevant to their circumstances. This education should give Ontario’s children the tools required to live their identities safely in the modern world. Failure to provide this pedagogical culture to (GSM) students violates their dignity and equality rights. Ontario’s (GSM) students are entitled to raise a question related to their individual needs and identities without fear of (tacit) reprisal. It does not send the message that GSM’s are worthy of equal respect and concern when teachers are encouraged to celebrate, and provide their students information concerning, Diwali, Hanukkah, Kwanzaa, National Indigenous Peoples Day, or the constitutional gains of the disabled, while they are prohibited, on pain of professional and possibly legal sanction, from discussing GSM sex. To the contrary, the message is frankly Orwellian.  All minorities are equal, but some minorities are more equal than others.

[14]         All children, and particularly GSM ones, have the right to a safe school environment free from harassment, (hetero)sexism, intimidation, and violence. Repeated studies show that bullying is a dangerous and systemic problem in North America's public schools. A hands-off approach to heterosexual privilege, GSM bias, and GSM bashing does not amount to state neutrality. Instead, it merely allows the unjust (hetero)sexist status quo to continue. This environment has an adverse pedagogical effect and detracts from academic outcomes of GSM students, worsening their pre-existing disadvantage. Specifically, it aggravates their increased risk of suicide, substance abuse, psychiatric difficulties, and homelessness. In aggregate, these circumstances diminish the dignity of GSM and their allies.

[15]         Viewed in context, one can quickly ascertain that sex-education reversion violates the deliberative freedoms of GSM students in two ways. First, silence in the classroom denies GSM students opportunities they otherwise would have had to understand, cultivate, express, and explore their sexual orientation and gender identity in an inclusive environment, thereby hampering their ability to develop these capacities and traits later in life. Second, silence concerning GSM sexuality and gender (expression/identity) does not constitute neutrality, especially as GSM students experience this false neutrality. It limits their deliberative freedoms; for it requires them to contemplate (possible reactions to) there GSM identities, when they are receiving a public education. Education is a context in which they should not carry extra deliberative burdens (that is, in this specific situation, the psychological pressure of passing as straight by conforming to the (hetero)sexist prejudice inherent in the relevant sections of the 1998 curriculum)

[16]         Discrimination claims also must be examined on an intersectional basis. Your (in)actions have adverse impacts upon GSM’s of colour, transgender persons, and or GSM’s with disabilities, many of whom confront increased systemic barriers. Barriers to accessing culturally competent sexual education mean that you are worsening the harm done to some of the most vulnerable members of our society. For instance, many persons with disabilities are thought of as asexual by peers and family. They are also disproportionately excluded from cultural settings in which we exchange sexual knowledge more freely. For many disabled students, especially those with a marginalized gender (identity) or sexual orientation, public education is a key, if not the only, service that facilitates their right to access accurate information concerning gender and sexuality.

[17]                    I am passionate concerning eradicating (hetero)sexism in schools; for I had the horrendous experience of being a high school student from 2004-8. My journey in public education gives me personal knowledge of the old curriculum. I came out as a gay man in grade 9. I also did public speaking engagements concerning (hetero)sexism in education across Ontario. Additionally, I have cerebral palsy and use an electric wheelchair for mobility. Thankfully, my disabilities shielded me from most direct physical violence, though friends and colleagues recount their numerous bashing stories from high school. For the most part, I merely suffered severe ostracism and practices of pedagogical silence around GSM sexuality. These circumstances made the segregation I felt a form of pedestrian torture.

[18]          Nevertheless, I used my academic skills to challenge the (hetero)sexism of high school education, especially in rural southern Ontario in which I spent my childhood and adolescence. Fortunately, I had several supportive teachers and educational assistants who provided enrichment material related to male homoerotic literature and philosophy, supported my early efforts to begin a gay-straight alliance, establish safe classrooms for GSM students, and demand my high school's harassment and anti-discrimination policy include sexual orientation as a prohibited ground of bullying. Despite these efforts, throughout high school, I was chronically depressed, and without supportive faculty — at that time, merely owing to good fortune — I likely would have committed suicide. When the new sex education curriculum came into effect, I had the faintest hope that future generations of children would not have to experience the agony that elementary and high school sometimes is for GSM students. Alas, on this and a mounting number of other disquieting instances, your government has lessened my faith in democracy.

[19]         You will likely claim you are merely enacting the will of the electorate and that the Constitution does not mandate a specific form of sex education. Like other claims of your government, this is only partially correct. The Constitution does not often proscribe government action. Nevertheless, once the government has chosen to provide a service or benefit, such as education, you must do so following the Constitution. Consequently, you would be free to give no sex education; yet once you have chosen to provide sex education, you must do so in a way that does not have an adverse impact on gender and sexual minorities. Applying the ruling in ET, the government cannot discharge its onerous burden (under section 1 of the Charter) to provide a compelling reason for this rights infringement. Also, the Supreme Court of Canada has repeatedly held that a government action that discriminates for a bad faith purpose, like the curriculum reversion in question, cannot be justified under section 1 of the Charter.

[20]         In closing, I raise a practical but critical problem. I have been volunteering at a sexual health clinic for some time. During my tenure, I have been shocked by the ignorance of persons, regardless of their sexual orientation or gender (identity), concerning the most basic of information related to sexual health, informed consent, and harm reduction. On this ground alone, Ontario’s students deserve a sexual education curriculum that will adequately prepare them to navigate the complexities of today’s erotic world safely. This education should also give them the knowledge they require to make choices that reflect their diverse values. For the preceding reasons, I respectfully ask that you cease from your current courses of action and reinstate the changes made to the health curriculum by previous governments.

[21]         I would happily provide references to secondary literature upon request, but as your time is valuable and this letter is already lengthy, I thought I would spare you the drudgery of footnotes. Thank you for your time and thoughtful consideration of my arguments. I look forward to your response.

I am yours Respectfully,

Connor Steele

Open letter to Premier Doug Ford protesting the use of the notwithstanding clause on Bill 5

Here is my letter to Doug Ford concerning his use of the notwithstanding clause on Bill 5 . Please consider writing your own letter to the premier on this issue because it is vital to the health of our democracy. Feel free to use mind and or steal sections as you see fit. It is important that Ontarians let Premier Ford no that the manner in which he has conducted himself is grossly unacceptable, whatever one's particular opinion concerning the legitimacy and extent of proper judicial review.

Tuesday, September 11, 2018

Dear Premier Ford,

 I would like to thank you for your time in reading my letter. For It Is an extension of my freedom of expression rights protected by the Charter. Though I did not vote for you, I acknowledge that you one as part of the democratic process, have a majority, and, thereby, a clear mandate to govern as you see fit within constitutional limits. I also recognize that the notwithstanding clause was intended to preserve the democratic will of the people; and, consequently, I cannot protest its use as such.

I do, however, with the greatest of respect, raise three concerns regarding its use in relation to Bill 5. As I have already suggested, the purpose of the constitutional override was to ensure democratic legitimacy by means of parliamentary sovereignty. Parliamentary sovereignty, as you are well- aware, receives its normative force from the will of the electorate. It is your ability to represent and discern our interest that makes the divestment of personal sovereignty each of us holds onto our individual members of Parliament legitimate. It is said that sometimes the judiciary does not represent constituencies, and so the notwithstanding clause was a constitutional safety valve on issues like language rights, same-sex marriage, assisted suicide, and abortion, the Parliament or provincial legislature would, at least on paper, have the last word. I accept this as an excellent feature of our constitutional design.

Nevertheless, your invocation of it in this specific case is not normatively defensible. Regrettably, in my respectful submission, you did not provide Ontarians with an election platform stating that you would make cuts to Toronto city Council. They, therefore, could not give you an explicit mandate to do so. Without this, you do not have a clear democratic mandate on Bill 5, undermining the ethics of your hasty decision to use the notwithstanding clause.

Second, it seems counterintuitive, cordially, to use the notwithstanding clause — in the name of democracy — to overrule a decision that repaired and called to your attention grave defects your actions have created in the municipal democratic process. The learned application judge pointed out that your government could likely pass a similar bill for future municipal elections; the Charter, however, precluded you from interfering in this specific municipal election in the manner that you chose.

Third, it is important for the development of the law and the orderly governance of parliamentary and judicial affairs that, when a government has objections to a pressing Superior Court decision, the proper recourse is expedited appellate review.

 I acknowledge that some constitutional scholars may agree with you that this was a bad judgement. Having read the judgement, and being an aspiring constitutional law scholar myself, I must confess that I think it has some flaws. Bluntly, however, they, your esteemed person, and I, are not on the bench. It is for appellate courts to criticize Superior Court Justices. It offends a basic constitutional convention, not to mention the standards of polite discourse, for you to do so.

Lastly, in my respectful view, it seems disproportionate in the extreme and unbecoming of you as Her Majesty’s loyal servant, to recall the legislature, such that your will — for you have no way of determining the will of Ontarians on this matter because you never asked them or outlined it in your platform — be done.

In closing, I do not dispute your absolute power to legislate within your jurisdiction, nor do I contest your right to invoke the notwithstanding clause. Yet just because one has the legal right to do something, it doesn’t follow that one should. In this specific case, for the reasons I have outlined above, your actions were not normatively justified. I would also cordially remind you that Her Majesty’s government is a government of laws, not persons; and it is especially not a government of one man, in the person of the Premier. With deference to your greater wisdom, there seems to be a fundamental contradiction and your claim to be “for the little guy,” when you are so willing to abrogate rights cavalierly. Rights, and particularly freedom of expression, are what allow the little guy to contest the power of big guys in government. Indeed, it is what I am enacting right now.

Again, I thank you for your time,

Connor James Steele

| B.hum, MA , PhD ABD

The Changing "Facials" of Toxic Masculinity: On L'Oreal's Men-Expert product line

Charcoal Face Mask British Commercial

It’s no secret that (rightly or wrongly) queer men are often thought of as artistically inclined, particularly with respect to personal appearance. Researchers into GBMSM mental health generally connect this to internalize shame for not living up to certain (perceived) gender ideals and the concomitant but related shame many of us have felt (and still often feel) at being different for loving in the (perceived) wrong way in a culture that is still, despite laughable protests to the contrary, intensely heterosexual. This, of course, is inextricable from the development of discourses concerning camp as a positive and nonviolent form of political resistance that attempted to parity, and thus subvert, expectations of heterosexist society. It is also no secret that a certain subset of GBMSM, including sometimes myself, can exhibit a rather toxic form of masculinity, as an unfortunate response to this shame, which includes, but is not limited to, a particularly problematic brand of misogyny and cissexism. I also recognize that the pursuit of beauty, even if unintentionally, serves to perpetuate unconscious and explicit ideas concerning white supremacy. It goes without saying, as well, that ability and class has much to do with this.

These concerns notwithstanding, one of the happy consequences of being queer, for me at least, has been the exposure to (stereotypically constructed as female) cleansing and beauty products. And it was my hope that straight men who were inclined to also transgress gender norms and avail themselves of the many products available to women under our traditional system of gender would eventually use them. To some extent, this has happened and is happening. Nevertheless, the campaign by L’Oreal, which offers a line of beauty products under the moniker, “Men Expert, is” particularly objectionable and indicative of transformations in sexuality and gender without substantial change, thereby allowing modified (hetero)sexism and cissexism to stay intact; indeed, they stay intact more powerful because they seem to “accommodate” social changes.

These advertisements are as farcical as they are outrageous because the implicit ideological enjoyment they offer the straight man who desires to purchase them is something like the following: “you can buy our products, but don’t worry: the power of your phallus is still intact. I know in years past you might have called someone a homo for using such products, but now we have found a way for you to do so that will enhance your virility, potential for violence, and capacity to dominate others. It’s 2018. You can have a facial, and it doesn’t have to be like homos do it, at the spa, [or, because this is what we are unconsciously talking about here] at the bathhouse. You can box before getting a facial, instead of sucking a cock”.

On one level, this is, of course, a crass marketing strategy that only the most dimwitted, confused and self-conscious (straight) man would be foolish enough to believe. On the other, however, it gets to the heart of what I find hypocritical in our changing, though highly limiting, view of sexual and gendered citizenship. I reject that straight men ought to be allowed the, in no sense unethical on its own, impulse to self-care and aesthetic development, without questioning the underlying masculinist structures that have prohibited them from doing so in the past. If one desires a facial, of whatever sort, one ought to at least question the patriarchal images that have traditionally barred this form of enjoyment. It is unfortunate that as capitalism has revamped the heterosexual subject as an aesthetic and responsible one, it has also entrenched heteronormativity and patriarchal violence at an even deeper level of libidinal enjoyment.

Trinity Western University’s Community Covenant and Contemporary Contracts

There is a great irony in the controversy concerning allowing a law school at Trinity Western University (TWU) with a contract enjoining students and faculty to forbear from, inter alia, sexual intimacy outside monogamous opposite sex marriage, in consideration for goods and services rendered by the University. Namely, that the case of Syndicat Northcrest v Amselem [2004], which proponents of the law school often proffer as a strong shield for freedom of religion, may act as a sword against them, when the case is construed as an innovation in contract law. An implied premise of the majority ratio in Amselem is that fundamental rights cannot be entirely extinguished by contract; for a party to a contract (especially in circumstances of unequal bargaining power) necessarily lacks the requisite knowledge concerning her (mutable) life-plans effecting the consensus ad idem between the promisor and promisee necessary to waive these rights, if it is even moral to do so. Consequently, a contract that purports to abridge freedom of religion, particularly without express declaration and precise circumscription, must be unenforceable. The same principled arguments hold true against the curtailment of sexual orientation protection and expression at TWU. Granted, the Québec Charter   applies to private transactions, whereas the Canadian Charter may or may not apply to private law school accreditation. In theoretical terms, however, one cannot have one part of Amselem without the other.

I follow scholars such as Lon L. Fuller, Ronald Dworkin, T.R.S. Allen and David Dyzenhaus in thinking that the enterprise of constitutional law is one of humankind’s highest arts — to use the phrase of eminent pre-charter scholar, F. R.W. Scott — in which we sculpt present realities , as far as possible, consistent with an integral search for, and application of, liberal Grundnorms. The purpose of my talk here today is to demonstrate the following: first, if correctly applied, in conjunction with the principal that there is no hierarchy of rights, within the context of a law school, Amselem ought to be determinative in the TWU matter; second, considering this argument would add greater intellectual rigour to the debate. With the greatest of respect, therefore, the Ontario Divisional Court also erred in the case of Ontario (Human Rights Commission) v Christian Horizons [2010], both in its application of contract theory and interpretation of the exemption given to religious organizations. The court interpreted section 24(sub 1) (which is now 18) of The Ontario Human Rights Code widely, following the SCC's direction in cases such as Caldwell v Stuart [1984] and Brassard (Town) v Québec (Commission des droits de la personne) [1988], but the reasoning in Amselem, and the Bedford criteria for overruling precedent, ought to narrow this interpretation. Caldwell can also be distinguished because this does not involve the indoctrination of children.  This also means, albeit for slightly different reasons, I must respectfully disagree with the British Columbia Court of Appeal (BCA) and side with the Ontario Court of Appeal. The BCA also erred in its interpretation of contract doctrine and its impoverished view of substantive equality.It is also imperative to note that section 3 of the hunter human rights code protects against discrimination in matters of contractual capacity; for I believe that this should extend to matters of waiver.   Peter W Hogg notes that the Supreme Court does not have a consistent position on contractual waiver (ch. 37 p. 52). While I agree with the dissent of Wilson J. In  McKinney v. University of Guelph (1990), that section 15 interests ought not to be subject to contractual waiver (at p. 447-8), I believe the current case is distinguishable from the prevailing ratio of McKinney because the community covenant does not confer any benefit, unlike those flowing from mandatory retirement. (at p. 239, per Laforest; at p, 277, per Cory J. concurring).I also note that McIntyre J. Found age discrimination contrary to Manitoban, public policy, in the case of Craton v. Winnipeg School Division No. 1 (at p. 154), even though mandato  ry retirement was part of a contract because there was no benefit

Mr. Amselem and the other applicants were orthodox Jews who wished to celebrate the festival of Sukkot. Orthodox Jews are required to “dwell,” that is, take all their meals in, a tent -like structure that remains open to the heavens. One of the requirements of such dwelling is that it be done “joyously”. For some orthodox Jews, this means that the structure in question must be near their primary residence, especially on Sabbath days: it was otherwise very inconvenient. . Mr. Amselem rejected the offer of a communal sukkah; for he believed that the only way to satisfy his religious obligations was to have a structure on his balcony, thereby facilitating solemnity, joy, and ease of access (at paras 14-17). The problem for Mr. Amselem and his co-appellants was that they had chosen to live in a posh condominium development with draconian bylaws, particularly in relation to the external appearance of the building. The co-owners had a public image they wished to present to the world and a way of living that would preserve that image (at para 6-7). Further, their right to proprietary integrity and development was and still is enshrined in the Québec charter alongside the guarantee of freedom of religion (at para 18). They were so concerned about this, in fact, that they hired their own rabbinical expert and sought the intervention of the Canadian Jewish Congress, both of which sided with them (as did the courts below), in opposition to Mr. Amselem’s evidence (at paras 133-6, Bastarache J dissenting).

Before considering the majority judgement, I would like to review the dissent of Justice Binnie. He takes a very traditional view of contract that resembles the one adopted by proponents of Trinity Western’s law school program. Even though Justice Binnie acknowledges that the Québec charter, unlike the Charter of Rights, applies to private legal relationships and, thereby, can affect the construction of contracts, he emphasizes the fact that the appellants signed contracts. They, therefore, freely chose to abrogate their right to religious freedom, in a manner similar to the way that hypothetical LGBTIQ+ present and future students at Trinity are said to abrogate their rights by signing the community covenant. What mattered for Justice Binnie was individual choice. He assumes that restrictions on religious expression, even if not trivial or insubstantial, and even if they have the effect of extinguishing the right entirely, is something that an individual or corporate entity can require as part of what is effectively (for the prospective tenant) a contract with quasi-adhesive status in which the bargaining power is very limited. Mr. Amselem and his co-appellants can simply reside elsewhere if they do not like the arrangement. They freely signed an agreement; they ought to have read it; and now they are bound by its terms (at paras 184-6). Justice Binnie’s reasons, as so often with his perceptive judgements and dissents, have a certain matter-of-fact appeal. He did not write the majority judgement, however: Stare decisis enjoins us to be bound by the majority judgement.

It is difficult to discern a single clear ratio in the judgement of Justice Iacobucci, despite the merits of his opinion. Yet while expressly not deciding the vexed question of whether one can, in fact, waive a constitutional right such as freedom of religion, he does clarify that such a waiver, if it is morally permissible at all, must meet four criteria. First, the waiver of a fundamental right would have to be sought for a pressing countervailing interest: this is implicit from his finding that the right to live in an environment free from subjectively ugly structures is not one of these interests (At paras 60-4, 82-86). Second, if such limitations are to exist, they must be proportionate to the objectives sought by the contract and infringe the waived right as little as possible, proportionate to those objectives. Third, there must be some ability on the part of the offeree to negotiate the terms of such waiver, thereby making quasi-adhesive contracts suspect because of necessary power differentials. Fourth, and this is the most important implication, one cannot validly waive rights protection in the present to apply in perpetuity for future circumstances (at paras 92-100).

This is so for two reasons. First, there is the more obvious point that all rights in the Charter, those found in human rights codes, and our common law tradition, derive from our aspiration to create a unified moral personality. One is not human in addition to having a given religion or sexual orientation. Instead, one expresses humanity in and through those traits. Second, and this is perhaps the more controversial point, we cannot perpetually alienate rights, especially by contract, because human moral personality is, and ought to be allowed to be, subject to change and development. In a very real sense, this alienation is a species of objectification, on the one hand, and involuntary servitude, on the other. Thus, a principled theoretical implication of Justice Iacobucci’s judgement is the following: because fundamental rights are crucially important yet subject to change. They can never be entirely extinguished by contract. Such extinguishment would require an agent to have knowledge of herself and limit her future prospects in a way that is neither logically possible nor desirable. In philosophical terms, the theory of contract receives its moral force from the ideas of free volition and consensus ad idem. The absence of these vitiate contractual obligations. These agreements are pacta non sunt servanda.

 We waive rights frequently in the context of criminal proceedings and commercial transactions. But this is different. First, when an accused person waves his right to counsel — as allowed by the 1999 Supreme Court judgement of Mills — he does so for that specific instant; he does not waive his right for five times or four years. Second, within the corporate context, it is briefly helpful to consider noncompete clauses as a useful analogy. Though they can impose time restrictions, much like the community covenant, they are usually most likely to be enforced when they are reasonable and tailored to the objectives. Assuming , arguendo, that noncompete clauses match the level of gravity we ought to assign to sexual orientation waiver, I would be more inclined to suggest the law society of upper Canada ought to have approved Trinity Western’s proposal if the clause had read — and, as I understand it, this is more reflective of common practice in any case — “respecting community personal  beliefs, sensitivities, and desire to live a chaste life,  students shall refrain from unmarried (defined by our interpretation of the Bible)  heterosexual or homosexual sexual activity on campus and, in the event that they do so off-campus, shall not advertise, communicate,  or advocate doing so to their fellows in a manner that is disruptive of community values”. This version, though onerous and, perhaps, also morally problematic, would not have completely extinguished rights, while accomplishing community objectives. I note in passing that the biblical basis of these condemnations do not help the contract. Incorporating Romans chapter 1 means that students subscribed to the opinion that homoerotic behaviour is dishonourable, effeminate, and deserving of capital punishment. Moreover, the SCC’s recent, albeit contentious and highly divided ruling in Douez v. Facebook Inc. (2017) sheds further doubt on the status of qausi-adhesive contracts in situations of unequal bargaining power.

One of the reasons we ought to protect freedom of religion from complete contractual waiver is that religious affiliation can at least in some lives, my own being one of them, change frequently and profoundly. It is repugnant to exempt an institution from disability non-discrimination provisions simply because an applicant was able-bodied when they hired her. Persons ought to be free to become disabled or change religions without fear of losing employment. It is not because persons with disabilities cannot change their conditions that we protect them from vocational or educational discrimination; it is because discrimination based on ability stereotypes unrelated to employment is per se morally evil.

I am gay, yet I have never seen the attraction or ethical viability of “the born that way” argument, but, through training in philosophy, I have come to see homoerotic behaviour and orientation permissible on utilitarian and, more important, for me at least, Kantian grounds, as well as a positive social good, on par with the benefits of religious expression. I believe that people ought to be able to choose to be queer, as well as manifest the various identities under that label through practices, in the same way that individuals have the right to choose whether to be Baha’i, Baptist, and/or Buddhist at any point in their life as a right flowing from moral personality. Renouncing this choice represents an ignominious sacrifice of one’s dignity as a moral agent. Often this case precedes under the assumption that an imagined fully formed, let us say lesbian, student knows her identity and so can purportedly freely choose to go somewhere else. We have seen from Justice Iacobucci’s judgement that that is inadequate.

Even if it were sufficient, however, it does not solve the moral dilemma of what to do with someone who changes sexual orientation later in life (in this example, law school) and the harm done by the forced shaping of someone’s sexual orientation through oppressive institutional contexts. Justice Iacobucci recognized the mutability of rights by the scope and flexibility with which he constructed the “sincere belief” test. Remember that Mr. Amselem was not required to demonstrate that he had this belief for a long time. Justice Iacobucci found that his erstwhile contract signing self was not obliged by his previous religious convictions when he purchased his condominium. What mattered was Amselem’s present state and the present development of his moral personality (at para 42). That development had to be curtailed by the rights of the other property owners, insofar as the structures had to be removed after nine days, were required to be unobstructive, and were ordered to conform to the aesthetics of the building as far as possible (at para 88).

 While not denying its religious character, the community covenant is, in many respects, like the co-ownership agreement. It asks individuals to refrain from (sexually) expressive activity to maintain a certain way of life, collective appearance (within and outside the bounds of the property), increasing its marketability to perspective members. It is predicated on a very exclusive, some would say elite, notion of collective identity, designed to create a boundary between the ingroup and outgroup. It offers students a nonnegotiable contract while wanting to withhold access to scarce social resources. Finally, both cases deal with the marginalization and concomitant deference that is properly owed to two beleaguered and insular minorities, queer and Jewish persons, in environments historically associated with discrimination — upper-class Montréal, on the one hand, and Christian educational institutions, on the other. Even if, as appears to be the case, this particular provision in the community covenant is rarely enforced, prospective students would be learning contracts in a legal environment where principles of contract mean very little. This is counterintuitive at best.

The University itself seems to recognize this, as the Ontario Court of Appeal pointed out; for it does not bar students of other religions or indeed no religion. Were a restrictive admissions policy adopted, it would call into question the moral equality of non-Christians, but it would arguably be more in keeping with the University’s mandate of promoting both orthopraxis and orthodoxy. The only reasonable inferences to be drawn are that — LGBTIQ+ persons are, first, more able to discard their identity than other groups, second, somehow more toxic on communal Christian living than the presence of nonbelievers and, third, less worthy of Charter protection than “deserving” equity-seeking-groups. 

Trinity Western is a religious institution, and so its commitments are more serious than the aesthetics of a condominium building. Yet the sacrifices it asks of its students are much greater as well. Mr. Amselem was only prohibited from his particular interpretation of what a religious practice required in a specific instant. Queer persons at Trinity Western are prohibited from sexual practice altogether. Mr. Amselem and his co-appellants were free to express their religion elsewhere while retaining co-ownership. Queer persons at Trinity cannot officially express their sexuality anywhere, without fear of losing their place. It is most unfortunate that the court has retreated from the dignitary equality-based framework enunciated in the 1999 Law decision. However much human dignity may be impractical to operationalize from a litigation and jurisprudential perspective, the dignity of an integrated moral personality ought to remain our focus when considering human rights. Because the virtual extinguishment of sexual freedom, and, therewith, a key component of integrated moral personality, is accomplished by the community covenant, Trinity Western is not an appropriate place for the teaching of contracts or constitutional law. Lawyers take an oath to uphold the rights of every person. It too is a solemn covenant between them, their colleagues, and the public. And that contract ought to trump in this case. To the extent that it still applies, my submission is that Amselem effectively overruled the relevant dicta from Trinity Western v British Columbia College of Teachers.

After a long day of negotiating our neoliberal healthcare system  as a person with a severe disability, who is often ostracized from multiple parts of society at once, and trying to complete a PhD, on the Trinity Western law society submissions, I usually watch Supreme Court webcasts. I am likely the only one. Yet it makes me so happy because the law is the one venue in which I am at least theoretically equal. This idea, at times more an aspiration than a reality, is what gives me the strength to do what I do,. In the spirit of John Dunn’s poem “No Man Is an Island,” when one person is diminished, we all are; when one right is abrogated unjustly, all rights are abrogated unjustly.

Bibliography

Legislation

Human Rights Code, RSO 1990, c H.19, Accessed 2018-03-27

Jurisprudence

Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279, [1988] S.C.J. No. 79, 53

Canada (Attorney General) v. Bedford, [2013] S.C.C. 72, para 158, [2013] 3 S.C.R. 110.

Caldwell v. Stuart, [1984] 2 S.C.R. 603, [1984] S.C.J. No. 62,

Douez v. Facebook, Inc., 2017 SCC 33, [2017] 1 S.C.R. 751.
Mckinney v. University of Guelph, [1990] 3 SCR 229, 76 DLR (4th) 545.

Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497

Ontario (Human Rights Commission) v Christian Horizons 2010 ONSC 2105. 

Syndicat Northcrest v Amselem, 2004 SCC 47, [2004] 2 SCR 551 [Amselem].

R. v. Mills, [1999] 3 S.C.R. 668

Trinity Western University v British Columbia College of Teachers, 2001 SCC 31, [2001] 1 SCR 772

Trinity Western University v. The Law Society of British Columbia, 2016 BCCA 423, 405 DLR (4th) 16.

Trinity Western University v. The Law Society of Upper Canada, 2016 ONCA 518,

131 OR (3d) 113

Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1. S.C.R. 396

Secondary Literature Consulted

Allan, T.R.S., Constitutional Justice: A Liberal Theory of the Rule of Law. Oxford: Oxford

University Press, 2001.

Martin, Dale B. “Heterosexism and the Interpretation of Romans 1:18-32.” In The Boswell Thesis:

Essays on Christianity, Homosexuality, and Social Tolerance, edited by Matthew Kuefler. Chicago:

University of Chicago press, 2006. 133-140.

McCamus, John, The Law of Contracts. 2nd ed. Toronto: Irwin Law, 2015.

Dworkin, Ronald.  Taking Rights Seriously. Cambridge: Mass.: Harvard University Press, 1978.

Dyzenhaus, David the Unity of Public Law. Oxford: Hart, 2004.

Peter W Hogg, Constitutional Law of Canada: Volume II. Fifth edition: Looseleaf (supplemented [2015]). Toronto: Carswell, 2007.

Scott, Frank R. Essays on The Constitution: Aspects of Canadian Law and Politics, University of Toronto Press, 1977,

Sullivan, Ruth. Sullivan on the Construction of Statutes, Sixth Edition Markham: ON: Lexis-Nexis, 2014.

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.