“I feel like a citizen”: Canada’s sex-work decision

Warmer indoors, but still cold on the streets: Sex workers' demonstration in Ottawa, January 2012

Partial but major victory today in Canada’s sex-work court case. The full decision is here, and a description of the case here. From the Globe and Mail on today’s ruling:

Ontario’s top court has legalized brothels and will allow prostitutes to have security and other staff that is specifically aimed at protecting prostitutes.

In a landmark decision Monday, the court said that prostitution is extremely dangerous work where inherent risks are multiplied by laws preventing prostitutes from working together under one roof or hiring security staff. As of April 25, they can engage bodyguards or security staff.

In addition to striking down the law against brothels, the court modified a law criminalizing pimping, so that “it will remain illegal to live off the avails of prostitution, but only ‘in circumstances of exploitation.’” But:

The court left intact just one of three key provisions that had been challenged by three current or former prostitutes. It said that communicating in a public place for the purposes of prostitution will remain illegal. Yet, even that provision narrowly escaped being struck down.

In the court’s only point of disagreement, Mr. Justice James MacPherson and Madam Justice Eleanore Cronk argued that the communication law is unacceptable because it forces street prostitutes to hurriedly negotiate with customers without first being able to size them up.

The refusal of the three other judges to strike down the communication law will likely go a long way to still the fears of politicians and residents who worried about an influx of prostitutes overtly propositioning prospective clients in the streets. …

Activists at a Toronto organization known as Maggie’s: Toronto Sex Workers Action Project, said the judges seriously erred by leaving street prostitutes unprotected, eking out a highly-dangerous existence on the extreme margins of society.

“The vast majority of all prostitution arrests are under the communication law,” said Emily Van Der Muelen, an assistant professor in Ryerson University’s Department of Criminal Justice and Criminology. “The failure to strike down the communication law means that the most vulnerable sex workers will continue to face arrest, police harassment, prosecution and violence.” …

The three judges acknowledged that the law may prevent prostitutes from being able to size up potentially dangerous customers before jumping into their cars. However, they reasoned that, with indoor prostitution now being made legal, there will be strong incentives for outdoor prostitutes to move into homes or brothels.

The Court, ominously, did not altogether discard the idea that eliminating prostitution was a legitimate public purpose, noted Carissima Mathen, a law professor at the University of Ottawa.  The judges simply found that the existing laws were not a means to that end. They

rejected arguments that the prostitution laws were linked by a common goal of eradicating prostitution itself. .. [They] agreed today that the provisions under attack were not truly aimed by legislators at eradicating prostitution, as government lawyer[s] had argued in the appeal.

Rather, they said the purposes of the provisions were to eliminate some of the undesirable social consequences of sex work – neighbourhood disruptions and the exploitation of vulnerable women by pimps.

According to Mathen, “The Court also said that [the objective of eliminating prostitution] could be valid; it just wasn’t borne out by the evidence here … This leaves some room for Parliament to come back with a new law that does have that purpose.”

Nonetheless, Valerie Scott, legal coordinator of Sex Professionals of Canada, told reporters: “I feel like a debutante. I feel like a citizen.”

O Canada, just out of curiosity I was wondering how much an hour for thee?

Tell it to the judge: Plaintiff Terri-Jean Bedford, a profesional dominatrix

Action Canada for Population and Development points out that on Monday, the Court of Appeal in the Canadian province of Ontario plans to release its decision on the legality of the province’s repressive prostitution laws. If not earth-shaking, this ruling could at least be street-shaking. Three laws stand under review: they criminalize pimping, keeping a brothel, and communicating for the purpose of prostitution. The last is especially egregious only because its assault on free speech should be evident; in fact, of course, it’s only one of innumerable such laws around the world. An Ontario defense lawyer explains people’s rights, or lack thereof, under the provision, and the catechistic formula makes this darkly funny:

Is it a crime in Canada to engage in prostitution or to obtain the sexual services of a prostitute? Yes.  Either stopping or attempting to stop a person in order to communicate for the purpose of prostitution or alternatively, communicating or attempting to communicate for the purpose of prostitution will be sufficient to ground a conviction for the offence. This means that both the prostitute and the person seeking the prostitute’s services can be found guilty of this offence.

What if I wasn’t successful in my attempt to obtain a prostitute’s services? It is not necessary to be successful in one’s attempt to communicate for the purpose of prostitution. Merely attempting to communicate with a prostitute is sufficient to be convicted of the offence.

What if I was asking the prostitute how much s/he charged out of curiosity and NOT with the intention to solicit their services as a prostitute? The Crown must prove as a fact that it was the intention of the accused person to solicit services for the purpose of prostitution. The accused must be “serious”. S/he must mean what s/he says and be willing and ready to carry out the transaction.    Simply being curious or joking is permitted under the legislation and is not evidence of the required intention to communicate for the purpose of prostitution….

Must there be a monetary transaction for the offence of communicating for the purpose of prostitution to be completed? No. Money does not have to be tendered for the offence of communicating for the purpose of prostitution to be complete. All that is required is an intention to engage in the sexual act.

It’s a relief that joking about prostitution is permitted, as well as simple curiosity about price ranges. It’s hard to imagine how either capitalism or democratic politics could continue without some legal leeway for the latter.

A lower court struck down all three laws in 2010. The primary rationale was that the provisions increase the dangers sex workers face. The question of personal freedom was not entirely circumvented, but the judge found centrally that “These laws, individually and together, force prostitutes to choose between their liberty interest and their right to security of the person as protected under the Canadian Charter of Rights and Freedoms.” According to the Globe and Mail,

Ontario Superior Court Judge Susan Himel based her decision on a broad conclusion that current laws offer little protection. She pointed at evidence that violence against sex workers is endemic – from serial killings by Vancouver farmer Robert Pickton, to missing prostitutes in Alberta and frequent violence against sex trade workers in the Atlantic region.

“By increasing the risk of harm to street prostitutes, the communicating law is simply too high a price to pay for the alleviation of social nuisance,” Judge Himel said. “I find that the danger faced by prostitutes greatly outweighs any harm which may be faced by the public.”

The case could eventually head to the Supreme Court of Canada. If Himel’s ruling is upheld, however, the protection grounds on which she based it could open the way not for a general liberalization of Canadian laws, but for a shift to targeting only the client, not the sex worker — the so-called “Swedish model.”  The restrictions on sexual autonomy would simply be moved, at least formally, to the consumer.

Canada, that happy if chilly non-colonial and rights-based country, too often gets a free pass for its frequently appalling treatment of sex workers, both by and beyond the law. One reason is that its laws are not globally atypical, however at odds with the country’s professions of respect for freedom. Another, though, is that the disparity between its reputation and its record simply doesn’t register with many “mainstream” human rights activists. After all, Human Rights Watch and other players in the field don’t recognize that sex workers have any right to be sex workers. If the Ontario court hands down a progressive ruling, perhaps it might stimulate both reassessment and remedy for a persistent, wounding blindness among human rights practitioners.

Thatcher, dead, endorses gay rights

Baird and baroness in happier days: Meryl Streep will play her in the movie

John Baird, now Canada’s Foreign Minister,last made news a couple of years ago when his cat died.  The cat was named Thatcher, after an object of Baird’s admiration, and he sent friends a text message reading, “Thatcher is dead.”  As word raced through Canada’s Tory government, mourning spread, and Prime Minister Stephen Harper prepared a message of condolence to the British people. It took some time for Buckingham Palace to confirm that the Iron Lady was still alive, though rusting. Harper’s spokesman concluded, “If the cat wasn’t dead, I’d have killed it by now.”

Baird made news today as well, in a more congenial way, by an act of homage to another tough woman, Hillary Clinton. Clinton’s  initiative of US support for LGBT people’s human rights, announced last month, has become a model for other politicians striving to make a mark.   In a speech in London, Baird therefore took his shot at the headlines, and outlined two priorities for Canadian foreign policy: LGBT rights and religious freedom.

What’s striking about Baird’s mimicry, though, is how generally appalling his speech is, once you get beyond the gay-specific sections.   He targets the developing world — Uganda is, as is ordinary these days, his preferred negative example.  But his language is that of an increasingly illiberal interventionism, driven by the need to reshape other societies, and economies, in a pliable and useful image.  LGBT rights advocates should not be happy to find their cause mixed in with this repressive agenda.

Let’s see. Seething just beneath the surface of the speech, there’s neoliberalism:

The support for free markets and open societies will be the defining struggle of the coming decades – the United Kingdom and Canada have been partners in this great endeavour before; we are partners now, and we will be partners in the future in our common cause.

There’s state feminism, Tory style, with a nod to his late cat:

We in Canada, and in Britain, know well the Queen’s leadership and both our countries benefit from the full participation of women in all aspects of society. I think of leaders like Baroness Thatcher.

Thatcher (femme, not feline) at least fought for her own rights, but in other countries, passive women force us to go out and bomb things on their behalf:

 I am particularly proud of the role Canada has played – in concert with our NATO allies and Afghan civil society – in advancing women’s rights in Afghanistan.

The women lucky enough to have survived NATO’s help, though, have an exciting time ahead of them: “The young Afghan girls that go to school today in Kandahar and Kabul will grow up and learn about the political tenacity of Margaret Thatcher.” The prospect of a whole generation of Afghan females, unveiled and pompadoured, proclaiming that “There is no such thing as society” must strike terror into Taliban hearts.

And, of course, there’s a blissful amnesia about the past:

Dozens of Commonwealth countries currently have regressive and punitive laws on the books that criminalize homosexuality. In some countries, these laws are unenforced hang-overs from an earlier era; in others, they are actively implemented. The criminalization of homosexuality is incompatible with the fundamental Commonwealth value of human rights.

How you “enforce” a “hangover” is less than clear; but never mind that — you’d think these countries picked up these laws during a drunken binge, instead of during the nightmare of colonialism.   That “c” word is unspeakable for Baird, himself the scion of a settler colony, as it implies a common responsibility for that old oppression’s effects. And such commonality in turn seems incompatible with the Commonwealth.  (Meanwhile, elevating human rights as “the fundamental Commonwealth value” may be rhetorically useful, but ignores where the Commonwealth came from.)

To the contrary.  Colonization, though we can’t actually call it by name, was the source of all the good stuff:

Voluntary associations like the 54-nation Commonwealth can and must be propelled forward as an agent for democracy, rule of law, human rights and development. That reflects the true value of the British democracy that has spanned the continents and shaped the world.

There’s a blithe confusion about all those funny little countries in Africa, which are hard to tell apart:

However, there are slivers of light.  Rwanda and South Africa have been leaders in protecting and promoting the fundamental rights of gays and lesbians. Slivers of light.

Rwanda?  Who told him that?

There’s a vision of human rights that deprives victims of both agency and voice:

As citizens of a global community, we have a solemn duty to defend the vulnerable, to give voice to the voiceless, to challenge the aggressor, and to promote and protect human rights and human dignity, at home and abroad.

Finally, there is his fixed conviction that injustice and oppression happen somewhere other than at home.

[A] priority to me as Foreign Minister… is, promoting and protecting the fundamental rights and liberties of people around the world. It is something we often take for granted in our pluralistic societies, something we often overlook. But the vivid images of suffering and repression beam through our television sets, and are plastered in our newspapers.

I am not sure where that “plastered” comes from.   But you can compare this to Clinton’s comment in her Geneva speech last month:

I speak about this subject knowing that my own country’s record on human rights for gay people is far from perfect. … Many LGBT Americans have endured violence and harassment in their own lives, and for some, including many young people, bullying and exclusion are daily experiences. So we, like all nations, have more work to do to protect human rights at home.

It’s unusual to accuse a Canadian of lacking humility as against an American; but there you are.

Identity crisis

A scandal arose in Canada this week over an amendment to airline security regulations that the government had enacted quietly last July. The new rules read:

An air carrier shall not transport a passenger if
(a) the passenger presents a piece of photo identification and does not resemble the photograph;
(b) the passenger does not appear to be the age indicated by the date of birth on the identification he or she presents;
(c) the passenger does not appear to be of the gender indicated on the identification he or she presents; or
(d) the passenger presents more than one form of identification and there is a major discrepancy between those forms of identification. [Emphasis added]

Item c) would seem to ban transgender people who haven’t changed their identity papers from flying. Activist Mercedes Allen explains more:

Most Canadian provinces require evidence of genital reconstruction surgery before allowing the change of gender markers on foundational documents.  Standards of care call for a minimum of one year living as one’s identified gender before the required procedure can occur (two years in some provinces, including Ontario).  This is further complicated by the fact that some provinces have removed coverage for this surgery from their health coverage, so some individuals can be trapped indefinitely with incongruent gender markers on their identification.

In fact, there have been no reports of trans people denied air travel because of the ban. The transport Minister’s spokesman claims that “Any passenger whose physical appearance does not correspond to their identification can continue to board a plane by supplying a letter from a health-care professional explaining the discrepancy” — though the regulations are far from clear on this.

The deeper problem is that Canada treats the legal identity of certain people as a medical problem, and demands a medical solution.  Recognizing gender identity should not depend on genital surgery, anymore than it should (as in Sweden) depend on sterilization. Requiring that opens the door not only to discrimination, but to physical abuse.

For a loud defender of religious freedom, John Baird seems deaf to the old verse — it’s Luke 6:42 — that asks, “How can you say to your brother, Brother, let me pull out the mote that is in your eye, when you yourself behold not the beam that is in your own eye?”  And, equally, he appears oblivious to how human rights activists must be aware of history, including history’s curious susceptibility to irony.

P.S. A petition against the travel regulation is here

Sex work, drugs, stigma

My friend and colleague Akim Ade Larcher, originally from St. Lucia in the balmy Caribbean but now working in cold Toronto, finds Canada colder than it should be. Blamelessly placid though the country may appear, a chill still surrounds those whose bodies are different, or who, even more seriously, do things with their bodies of which the state disapproves.  Akim writes,

In Canada, the word stigma is associated with sex workers, drug users, prisoners, HIV positive people, gay men, Blacks, sex offenders to name a few. I wanted to explore the concept of stigmatization … and see whether I could capture how the criminalization of sex work and drug use increases risks and harms.

Purple orgasm

He’s now trying to raise funds to mount an exhibit of photographs and literary texts showing the persistence of stigma and the power of criminal law in Canada. Take a look at the website, which looks fantastic, and particularly the videos. Let him know what you think, and contribute if you can.