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

The Shylock heart: queer online dating and disability discrimination

As a useful thought experiment, let’s imagine that there is a modern interpolation of Shakespeare, in which the disabled outcast, Shylock, says the following:

[I] am a Crip.

Hath not a Crip eyes? hath not a Crip hands, organs,

dimensions, senses, affections, passions? fed with

the same food, hurt with the same weapons, subject

to the same diseases, healed by the same means,

warmed and cooled by the same winter and summer, as

a ‘Normal’ is? If you prick us, do we not bleed?

if you tickle us, do we not laugh? if you poison

us, do we not die? and if you wrong us, shall we not

revenge? If we are like you in the rest, we will

resemble you in that. If a Crip wrong a ‘Normal’,

what is his humility? Revenge. If a ‘Normal’

wrong a Crip, what should his sufferance be by

‘Normal’ example? Why, revenge. The villany you

teach me, I will execute, and it shall go hard but I

will better the instruction.

— Adapted from William Shakespeare, The Merchant of Venice, Act III, Seen I               

This monologue of indignation perfectly expresses how I feel after most dates.

With the exception of an amazing fellow, whose beauty, intelligence, caring , gentility, and quiet courage, almost eclipse the below and many other far worse stories, online dating has caused me to lose faith in humanity and brought into sharper relief the marginalization disabled queers confront. Hence, while I am thankful for the love and support I do receive, I felt compelled to write about online dating both as a critique of my own conduct and ideological interpolation and rebuke of the attitudes expressed by others.

                                                                                                                                               

I don't know why persons believe it is socially acceptable to be casually cruel and benignly bigoted toward their fellow [disabled] human beings. The guy I went on a date with, who knew I was disabled and the extent of the disability, said sharing my disability was not the kind of life that he wanted. I don't know why I didn't say being with a guy who is physically and emotionally repulsive is not the kind of life I want, so that is okay — nevermind the fact that this was the second date, so I wasn’t committed to sharing very much of my life. Of course, I did not say this because what is the point of vengeance. I wasn’t going to make him any better. He had already made up his mind, which was made clear from his further admission that he agreed to himself that he would “try it” — and I’m still not clear precisely what the it was — and now that he had seen what my life was like, after a few hours, spread over two meetings, he had come to a rational decision. Even more, he required me to reassure him that this decision, in addition to the way in which it was phrased, did not make him a rather selfish individual.

Everyone goes on bad dates. And everyone meets terrible people, but this is indicative of a general pattern of which I have many more disturbing examples.

On good days, being disabled and gay, of course, on account of my other privileges, can be really fun. I love who I am most of the time; I love my friends and their support, and I love the progress that has been made, the caring that I have been given, and the opportunity it has engendered. I’ve definitely received a warmer welcome in queer communities than anywhere else, and that needs to be stated and nurtured with gusto.

Nevertheless, I, and from what I gather owing to personal experience and research, any queer who significantly deviates from the white, homonormative, cisgendered, masculinist, able-bodied, STBBI & drug-free, mentally-well, and economically privileged ideal, often feel like something of a Shylock character within many traditional Gay spaces and social interactions. And this is very saddening for a community already ravaged by the scars of oppression and caustic heterosexist callousness.

Acknowledging the misogyny and anti-Semitism of the play, I’ve always thought that the Merchant of Venice was a brilliant work of art and Shylock a brilliant character, precisely because he can’t win. Usery (lending of money at interest) was forbidden by Christianity, but it was necessary for the continuance of society. Jews were made to do it because of social stigma; this action, in turn, created more social stigma. The other characters, rightly, criticize Shylock, the Jew, for his lack of humanity. Yet it is precisely his profound humanity, in addition to the pain he feels at the denial of it, which causes him to lash out so violently and plaintively against his accusers. He must ask two fundamental and yet humiliating questions those who are significantly marginalized must implicitly ask or deny asking themselves: why don’t other persons recognize that I’m a human being who feels pain as they do? When do unjust circumstances, for which I am often blamed, demand redress, even by unsavory means? I remember disturbing my grade nine teacher by stating, quite matter-of-factly, something like the following: “I thought Shylock was justified in the quest for a pound of Antonio’s flesh.  If someone had treated me as Antonio had treated Shylock, then asked me for a loan, and subsequently was unable to pay said loan, I would cut the bastard’s heart out and eat it for breakfast — mercy is for weak idiots!” I do not believe that that is the reaction anticipated by Ontario’s mind-numbing curriculum.

It seems that Shylock can’t win, and neither can I. The same goes for others who are marginalized in all communities, particularly queer communities.

On the one hand, if I yell like Shylock and demand retribution, or at the very least, justice, I am branded as someone heart of heart, who won’t convert to dominant ideologies and receive my inferior status, as Shylock is made to do at the end of the play. If I don’t accept my putative natural inferiority and express gratitude for the social standing I have achieved, I become an unnatural ice queen. People become perplexed when I laugh derisively after hearing statements, such as, “it is what is on the inside that matters”. I wish very much that that were true, but it doesn’t seem to reflect the world in which we live. And curiously it is often the conventionally attractive who say that.

On the other hand, if I express frustration or sorrow at the current state of things, I am labeled as an “eternal Jew”. I become a strange object of tragicomic contempt, who is resiliently obstinate in his pain and will to live despite years of oppression. I become a lesson in pity and scorn that is both at once necessary for the functioning of the social order, as well as the monster that creeps outside it. Like Shylock, and like everyone, I am an agent of my own pain. And this is as perplexing as it is nauseating.

In fact, what is most disturbing to me is not necessarily the subjugating actions of others. Rather, I am far more appalled by the fact that I am both an unwilling and willing participant in this immorality. The times we hung out I was disgusted by his general demeanor, interests, grooming regiment, teeth and oral hygiene, unibrow, career development, lack of muscle, definition, emotional intelligence, and the list goes on. And yet, I was trying, despite all evidence to the contrary, to see the good in this person. And I’ll never be able to separate ethics, what little I have left in these types of situations, from an overwhelming desire for convenient sex and intimacy. I probably did like him a little, but it was difficult not to erupt in sardonic laughter when he said “I feel bad, because you seem like you really like me and were looking forward to us dating”. Because I had a very strong urge to reply, “even though you are genuinely intelligent, your idiocy is marvelous. In future, when gay men show the slightest bit of interest in Renaissance dance reenactment troop choreography, and how you accomplish this using permutation mathematics, it’s because there is a slight chance of sleeping with you, and you’re the only one available; it’s not because they’re interested”.

What really bothers me about online dating is I’m always figured as the one to be tolerated, when most of the time, from any kind of more neutral standard, I ought to be the one tolerating. So, because I exemplify some of the very stereotypes I detest so strongly, though am working to change, this is a fitting situation. It has made the violent reality of external and internalized stigma all the more apparent.

To reiterate, it has also made me cherish those who do love and appreciate me as an equal. But I am fairly certain that the monstrous side of me was created by circumstances similar to, though distinct from, those that created such a complex character in the mind of Shakespeare. And I’m also fairly certain that all of us, most especially myself, need to consciously challenge internal and external stigma, lest the theatrical personas that we create for ourselves solidify into iron masks from which it is difficult to escape. In addition, however spiteful this may be, I don’t think I can be entirely blamed for coveting one, if not several, pounds of queer flesh, in anticipation of the time when I may finally desecrate the hearts of those who would deny me full humanity. Monsters exist in all of us; they are made, not begotten — to invert the formula of the Nicene Creed, in a blasphemous move that I think Shylock would appreciate.

Not just for me,  but for for everyone wanting a fuller experience humanity and the diversity of life, there must a way beyond martyrdom ,on the one hand , and vengeance, on the other. It's a shame that despite all my learning and diligence in trying to practice ethics, even I have difficulty breaking this  cycle.

An ambivalent apology for pornography: opposing, in part, fightthenewdrug.org

This response to the article Sex before kissing: how 15-year-old girls are dealing with porn addicted boys

The article offers many valid and disturbing points for discussion, so I thought I would use it to discuss sex negativity, adolescent sexuality, pornography and sex-work in general. Here's why things the strategy of "fighting pornography" is very misconceived and one of embracing pornography and gaining control over it may be better.

As a general observation, because what society considers to be intimate behavior has varied widely across region and time, I see no logical reason why placing ones lips on someone's mouth is categorically different from placing one's lips on someone's genitals. Granted, I am fully aware of the historical reasons why this is the case, but many persons can and do find oral sex less intimate than kissing, and it is conceivable that this social value could change without severe catastrophe.

 My second general observation is that anti-pornography activists invariably betray their theological underpinnings, even if argued from secular premises, by the heterosexist and uniform way in which they characterize pornography. Though a minority, gay male pornography is a huge part of pornography. It has similar but separate issues. So while I have sympathy for campaigns against coercion and forced sex-work, the image of the fallen/vulnerable girl that this website propagates is pernicious. It perpetuates the violence it is trying to fix. What is needed is to reinforce, again and again and again and again, principles of autonomy and consent. I also find polemics against pornography circular. The only way persons involved in pornography understand what they do as dehumanizing is if we keep suggesting that it is dehumanizing.

Adult sex workers, from pornography to individual sex exchange transactions, ought to be unionized, educated, tested, protected from violence, and fairly compensated for their labor. This is not a nihilistic view of sex; this is a realistic view of sex. It is one that recognizes that an individual has the right to dispose of her body as she sees fit, and the state should, as far as possible, remove coercion and barriers to safety when she does this. Canada already has stringent regulations about the importation of pornography and its manufacturer in Canada. The problem with making pornography [more] ethical is that it is impossible to police the Internet. I think regulating sex-work in the way proposed is the best policy option because monitoring and licensing sex-work in this way gives the state more ability to prosecute human trafficking. While we might like law for moral reasons, the state often achieves more social control through bureaucratic regulations. So I think we be better able to crack down on human trafficking, if the state had a more active role in the regulation, education, and promotion of sex work. Think of all the regulations we have around food and drugs. If you want to protect children from sex-work, this is the best shot.

First, I am against the premise of this website, because I don't think prohibiting or combating drugs/drug use works as a matter of social policy. Without question, many persons, myself included, have varying degrees of unhealthy dependency upon pornography because it helps release dopamine. virtually every human being exhibits some addictive behavior, particularly in adolescence. I live with a lot of chronic pain, and so my choices coping with that are food, alcohol, cannabis, narcotics, or pornography. Whatever combination I use, or the things I add, I will be dependent on something. Human beings are always dependent on dopamine responses. Calling pornography the new drug that we must fight is a rhetorical tactic, which I find distasteful because it further marginalizes persons who use substances. As I have said to many persons previously, and as with substances, we require an open and honest dialogue about how to use pornography in the context of sex positivity that gets rid of this Virgin Mary /fallen woman/naïve girl as victim melodrama. Undoubtedly, women are continual victims of sexual violence. I do not condone this. Instead, I demand responsible education, empowerment and more and better sexual activity for everyone, including teenagers within their age bracket. If you demystify something, you take away the power of taboo/intrigue, so I agree with education and harm reduction.

Second, given the historical record, I am deeply suspicious of neurological arguments used to enforce moral reasoning, as exactly the same ones were used against masturbation as such. Third, though we must protect children from sexual assault and harassment, "save the children" has always been the battle cry of those wishing to force their sexual morality on others — just something to keep in mind. Fourth, children and adolescents have the right to explore and develop their sexuality in a healthy and age-appropriate way. I think a big problem that causes the overuse of pornography among teenagers is that they experience a lot of sexual frustration, and are not given the proper techniques, tools, and lubricants to masturbate effectively. Because the images they receive are not healthy and unrealistic, vigorous masturbation (“jackhammering”) in pursuit of an explosive orgasm can cause damage to the genitals, dissatisfaction, erectile dysfunction, and problems with sexual performance. Very few persons, young or old, know how to pleasure themselves well, or the very many things that are out there to help them, if they want to have a good orgasm but finding a partner to do so is difficult or not desired.

There is still a lot of shame around this, so adolescents don't know how to cope with the hormone spikes around puberty. Growing up, my parents and I had an agreement about drinking: I could drink whatever I wanted of good-quality alcohol, so long as they controlled it and I was under their supervision. Because of this agreement, I would wager, I rarely ever drink, and when I do it is always controlled. Because I was gay, I did not have similar conversations and arrangements about sexuality/sexual material. Consequently, I hope that I would make good-quality sexual material available to my children, which was ethically produced and not violent, along with whatever else they wanted by way of accessories, if any, to explore their sexuality. Clearly, teenagers are going to go beyond these limits, and or not want to discuss this with their parents, but the key I think is understanding in order to maintain the possibility of open, nonjudgmental, factually based, and compassionate discussion. And if they were uncomfortable talking to me or my partner, I would try to connect them to another role model and or mental health care professional.

There are websites like make love not porn.com and XXXartfilms.com that attempt to reduce degrading images of sex and challenge the mythology surrounding pornography. But more deeply, I seriously doubt whether or not we can categorize behavior or image “X” as dehumanizing, without an eye to context. This is how the feminist anti-sex-anti-queer lobby succeeded in regulating gay male pornography with the 1993 obscenity test, still valid law, delineated in the case of Butler and reaffirmed in the case of little sisters books. Against all logic, and historical understanding, gay mens’ BDSM images are said to cause attitudinal harm to women. Pornography is often causally linked to a great number of social ills. In reality, however, it is an interdependent network of things, and we need a better strategy than calling pornography an epidemic or drug. Furthermore, even if pornography can be demonstrably proven to be in some instances dehumanizing, surely one of the joys of being human is the ability to renounce one’s humanity. Absolute humanity is a very heavy burden to carry, indeed, and it is not precisely clear to me what this concept entails

The strongest case against pornography is that we must never treat human beings, including ourselves, solely as a means and not agents in their own right. As essential as this fundamental norm of political life is, there are circumstances in which we do, in fact, use ourselves and others solely as instruments.

While this is not ideal, it may be healthier to accept this, than justify worse evils in the pursuit of moral purity. As soon as one has a standard of absolute humanity, one must figure the persons one treats “inhumanely” as themselves outside the category of human. If one is going to have a principled stand on the exploitation of labor stemming from some version of the Kantian categorical imperative, one cannot profit from contemporary capitalism. As such, I am always amused by the moral hypocrisy. Given the choice between being or having one of my relatives as a sex worker, as opposed to working for minimum wage for a multinational corporation, or far less if  I lived in the global South, and sex-work, I would choose sex-work without a moment’s thought or regret. 80% of pornography and sex-work in Canada is done indoors under relatively safe conditions. Sex-work of all types takes long hours, a lot of skill, and has many occupational hazards. Nevertheless, the hourly rate of pay ranges from 100 to over $1000. There is absolutely no logical reason to argue that the exchange of sexual services for money is inherently less demeaning than being a Walmart greeter, or that the consumption of pornography is any less unethical than buying from a multinational or consuming meat. This is why we must  situate discussions of pornography within larger debates about globalized capitalism and its attendant exploitation. I realize that many people have to shop at and work for places like Walmart. The point is to demean neither and recognize that everyone is implicated in very many forms of moral evil. Though often a vice, and not a necessity, pornography is not a particularly grave ethical problem. We ought to educate children to make more responsible consumer choices, so that they can do the same as adults.

In terms of pornography, wider rape culture, and women's rights, the conversation has to start very early and emphasize consent and egalitarianism. I think the broader question we have to ask is the role of violence in our culture. The only reason pornography is so violent and graphic is because our culture is violent. If we show more scenes of love on TV and fewer images of violence, love would begin to infuse our culture, thereby having an affect on sexual images. What we also need is more authentic nudity in television, movies and pornography to give us a realistic understanding of what the human body ought to look like and be able to do. Sometimes there is nothing more ridiculous than non-pornographic images of naked persons, and we should be aware of and comfortable with those images.

There are two theological biases of which we should be aware. First, Christianity historically and at present has deep discomfort with the fact that human beings are embodied creatures, who have vulnerability and produce many gross fluids. The irony of pornography is that while it claims to be about embodiment, it actually creates an apotheosis of the body, thereby allowing the viewer to transcend embodiment. We never see the porn star prematurely ejaculate for example, except in gonzo porn. The second theological bias we ought to consider, coming from a culture that is descended from the Protestant Reformation, is the Christian, and especially Protestant, bias against vision. The eyes are often imagined as the window to the soul. And the culture in which Christianity developed had a strong belief in the power of the evil eye. Images, more so than other stimuli, are thought to have an impact on the soul. This is partly why Luther was against icons and also why he wanted persons to focus on the spoken word. Christians historically have feared visual stimuli as particular occasions of possible sin. This is no doubt because men are more affected sexually by visual stimuli, but it seems hypocritical to not also condemn the volume of erotic fiction produced, simply because it does not involve images or actual persons.

To this day, much of the erotic enjoyment for me that comes from pornography gets back to behaving badly. I suspect if we work to have a more realistic picture of sex and sexuality, by removing the strange dynamic of transgression-experience of the sacred-hyper praise of sex, that occurs from both sex positive and sex negative persons, pornography with lose some of its appeal. Working against Christian prohibition has created this situation as much as nihilistic capitalism. Many contemporary conservatives make an idol out of sex within marriage, as though conjugal satisfaction and fidelity will bring heaven on earth. I don't see how this is categorically different from the secular humanists’ assertion that a good sex life is the root to transcendent happiness.

For the record, I find this article disturbing, and it is sad that children feel this way. Nevertheless, fighting pornography is not an effective strategy, and it would have morally unacceptable consequences. We are not experiencing a pornography epidemic, we are experiencing profound and rapid social change, and we need better strategies to help children in general adjust.