Blogosaurus Lex

The Women’s Court of Canada is a group of lawyers, academics and activists who have rewritten Supreme Court of Canada decisions in the spirit of substantive equality.

The WCC has launched a new website featuring their judgements, providing resources, and highlighting feminist organizations.

The site also features a blog where members comment on current cases and legislation.

I blogged about the WCC last summer when I interviewed WCC member Jennifer Koshan for CJSR’s Adamant Eve. You can listen to us speak about the WCC and about Newfoundland vs. NAPE here (to download audio, right click arrow icon and select “Save link as”).

The Women’s Law Forum of the University of Alberta hosted the  WCC last year. You can listen to the panel presentation, which featured Gwen Brodsky, Sharon McIvor and Melina Buckley, as well as Koshan, here.

Congratulations on the new site, WCC!

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The Legislating Sexualities in Alberta panel is today from 12-2pm in FAB 220 on the U of A Main Campus. I’m looking forward to going, but if you can’t be there, don’t worry. CJSR’s Gaywire is recording it and you’ll be able to download the audio.

In my last post on LSA, I mentioned my hope that there would be some discussion on the use of social media around Bill 44. Therefore, I was very excited to see that Edmonton blogger MasterMaq, with Edmonton Journal columnist Paul Simons (who won a Civil Liberties award from the Alberta Civil Liberties Research Centre for her coverage of the Bill),  complied some data on the Twitter stream around Bill 44 for May and June 2009. There isn’t much analysis yet, but there is a lot of raw data just waiting for it.

I started reading blogs because I love to learn and I’m happy to find that writing for blogs provides similar opportunities.

When I first read the description for the Legislating Sexualities panel, I assumed ‘declaration of pride in Edmonton’ was referring to the fact that Edmonton, while by no means free of discrimination, is a fairly open city. Former City Councilor Michael Phair was the first openly gay politician elected in Canada. The Institute for Sexual Minority Studies and Services grew out of one of the first university LGBT ally groups in Canada and provides U of A with “an interdisciplinary ‘hub’ for scholarly work in sexual-minority studies,” runs  CampfYrefly for sexual minority youth and has been running the InsideOut Speaker’s Series since 2003. The Exposure Festival had a successful third year and is now one of the city’s established summer events. And Gaywire brings Edmontonians an awesome hour of LGBT news and event every week. I look around me and think, “Well of course there’s pride in Edmonton.”

When I looked at the event description a little bit later and a little bit closer, however, I realized it referred to the mayoral declaration of pride in Edmonton. I had no idea what that meant. I did a little bit of research (ie: Googling) and discovered that Edmonton hasn’t always been so open.

Recently there has been a push to have cities officially recognize Pride events and that struggle continues.  There has been strong opposition from politicians and in some cases it has taken rulings by Human Rights Commissions to enforce recognition. In 2003, then-mayor Bill Smith said declaring Gay Pride Week in Edmonton would go against his religious beliefs. A complaint was filed with the Human Rights Commission arguing this decision was discriminatory and based on the mayor’s personal belief. Smith relented before a decision could be made on the case and Pride week was official declared by the city.

Canadians take pride in being one of the first nations in the world to legalize same-sex marriage, but often forget it was through the Supreme Court’s enforcement of the Charter, not because of political will. It’s only been 40 years since homosexuality was decriminalized, and 30 years since Operation Soap. Human Rights legislation exists to protect people from the tyranny of the majority and are a vital part of an open society. I’m glad Canada has such legislation and our courts and commissions are willing to enforce it. I look forward to a discussion of how such legislation has affected the lives of Canadians.

For more information about the history of homosexuality in Canada, check out the two part series Out in Canada on CBC Radio’s Rewind.

Updated: Note the new location, FAB 220

The Political Science Graduate Association and the Faculty of Arts at the University of Alberta are presenting the panel Legislating Sexualities in Alberta.  It will be held from 12-2pm on Friday, February 5, 2010 in FAB 220, University of Alberta North Campus. More information can be found on the facebook page:

This panel will bring together a number of interested and informed actors to discuss the implications of the Alberta government’s actions and attitudes pertaining to sexual minorities. The motivations, repercussions and significance of the Adult Interdependent Relationships Act (AIRA), Bill 44, the de-listing of gender reassignment surgery, and the eventual declaration of pride in Edmonton will be considered.

Panelists:

Lucas Crawford (English & Film Studies)                          Dr. André P. Grace (Education)
Dr. Lois Harder (Political Science)                                     Dr. Cressida Heyes (Philosophy)
Rachel Notley (MLA for Edmonton-Strathcona)                 Michael Phair (Education)

Like it or not, the law has major consequences and affects on our identities and relationships. I’m looking forward to hearing this panel discuss what these consequences and affects are for sexual minorities in Alberta.

Bill 44 amended the Human Rights, Citizenship and Multiculturalism Act (HRCMA), in part by changing its name to the Alberta Human Rights Act (AHRA), and generated controversy because of its enshrinement of parental rights and its use of the Human Rights Commission to enforce them.  For a deeper understanding of the bill and its ramifications, read this post by Linda McKay Panos.

I hope there is some discussion of citizen engagement in response to the bill and how social media fueled and facilitated the debate. A letter writing campaign was launched and rallies were held in opposition, Facebook groups were started on both sides of the debate and there was much discussion on Twitter – to the point where the hashtag #bill44 trended (was one of the most mentioned terms or hashtags on the site) during the final debate of the bill.

What gained less attention was the reason the legislation was being reviewed. In the 1998 the ruling on the Vriend case, the Supreme Court of Canada read sexual orientation in to the AHRA (then the HRCMA). Due to the common law tradition, the law itself changed as soon as the ruling was handed down. Legislatures usually amend the written law to reflect such changes soon after such a ruling, but in this case, Alberta’s legislature took ten years to respond. I’m curious about the length of time governments have to change written legislation after an SCC decision.

The de-listing of gender reassignment surgery (GRS, also known as Sexual Reassignment Surgery, SRS) for transgendered Albertans raises questions about who we deem worthy of medical treatment and how marginalized minority groups are treated in Alberta. It also raises questions about how people are defined under the law. Our society is heavily invested in the idea of a gender binary and our laws and bureaucratic processes reflect that. Transgendered people in Alberta, and in most places, must identify themselves as male or female on government documents (India legally recognizes the hijra as a third gender, but even this is problematic, in part because it groups all non-conforming gender expression in to an ‘other’ category). Not conforming with one’s legally designated gender can have many legal consequences (US websites) going beyond discrimination.

Ontario was forced to re-list GRS after the Ontario Human Rights Commission found gender identity disorder was a disability protected by human rights legislation. This raises questions of how we classify difference; it would be better to see trans people protected in terms of identity than in terms of disability. Complaints have been filed in Alberta claiming the de-listing of GRS is in violation of the AHRA.  I am hopeful the precedent set in Ontario will be followed, these challenges will be won and funding for GRS will be reinstated.

I’m also very interested in learning more about the Adult Interdependent Relationships Act. Though it can be argued this legislation was created to prevent same-sex couples from marrying, it is progressive in terms of its recognition of legal rights for people in alternative households. Although it does not provide all of the legal benefits of marriage, it is a law that acknowledges people have ways of supporting each other and living together outside of the nuclear family structure. The AIRA is a fairly new law and some of its language is ambiguous. I’d like to know what kind of cases, if any, have come before the courts to test this law.

Though it’s been over 40 years since Trudeau declared the state has no place in the bedrooms of the nation, the law continues to affect our relationships and our identities. I’m looking forward to learning more about how it does so and what the consequences – intended and not – are.

Legislating Sexualities in Alberta will be held from 12-2pm on Friday, February 5, 2010 at the University of Alberta in Dentistry/Pharmacy 2104, University of Alberta North Campus.

If you can’t wait to think about how the law effects and interacts with our identities, relationships and life chances, check out this lecture from Dean Spade entitled Trans Politics Beyond Law and Order. Spade recently spoke at UofA as part of iSMSS’s Inside/OUT Speakers Series and was recorded by CJSR’s GayWire.  Dean Spade is an Assistant Professor of Law at the University of Seattle Faculty of Law and founder of the Sylvia Rivera Law Project, which “works to guarantee that all people are free to self-determine gender identity and expression, regardless of income or race, and without facing harassment, discrimination or violence.”

I spend a week a month in Ottawa and our condo is about two blocks away from the Supreme Court of Canada.  Sometimes when I am here I like to make a field trip to see what is going on there, so I mosey on down to the Court to observe. 

The Supreme Court of Canada building does not lend itself easily to moseying.  It is a tall, grey, austere, brooding building.  It is serious architecture, as befits its serious business.  In contrast, the Parliament buildings are neo-gothic Victorian follies, perhaps reflecting the theatrical tenor of many of the exchanges there.  The Supreme Court is mysterious; it does not open itself easily to the observer. And, there are some interesting mysteries and traditions associated with the building. For example:

In front of the Supreme Court of Canada are two beautiful statues: on e of Justice (Justicia)  and one of Truth (Veritas).  These statues were commissioned in the 1920s as part of a memorial to King Edward VII, and are the work of famed Canadian sculptor  Walter S. Allward.  (Allward is perhaps best known as the creator and architect of the war memorial at Vimy Ridge.  Indeed, the statues on the Vimy Memorial are instantly recognizable as the work of the same artist.)  What is little known is that the two statues that grace the front of the Court mysteriously disappeared and were lost for almost 50 years.  In 1969 they were discovered in crates under an Ottawa parking lot!  Recovered, they were finally installed in front of the Court in 1970. http://www.scc-csc.gc.ca/court-cour/info/eng-ang.pdf

Another mystery involves a missing red leather chair.  Many years ago, when the court was smaller than today’s bench of nine, each of the judges had a matching red leather chair.  Six of seven are accounted for today, but the Court is on the lookout for the missing seventh chair.  If you or someone you know has a battered old red leather chair languishing in their basement, the Supreme Court of Canada would like to have it back!

I recently learned of a tradition of the Court that was new and interesting to me.  In front of the building are two flagpoles.  The pole to the west flies the Canadian flag. The one to the east also flies the Canadian flag, but only when the Court is actually sitting.  So, as I mosey on down to the Court, I can check the east flagpole.  If the flag is flying, then the Court is in session. If it is not, I can forego a visit to the building, if my purpose was to watch the proceedings.

Another tradition: several years ago, I had the privilege of a “backstairs” tour of the Court.  In the judges’ lounge is a lovely, inlaid wood table.  Every judge of the Court has an assigned spot at the table, and even the places where their coffee cups are placed was labelled!  The table is not hierarchical in terms of a head and foot: it is round.  But still, this seems to take organization to great lengths!  (I think that it is in this room that they are looking for the missing red chair.)

The Supreme Court of Canada is open daily for tours.  I highly recommend it should you be visiting Ottawa. http://www.scc-csc.gc.ca/home-accueil/index-eng.asp

The Alberta v. Hutterian Brethren of Wilson Colony case, which I blogged about here and here, took an interesting turn today as the colony applied to Supreme Court for a rehearing.

Check out CBC’s coverage and stay tuned to Blogosarus Lex for more commentary on the case.

Jennifer Koshan of the University of Calgary’s Faculty of Law has posted a thorough and excellent analysis of Alberta v. Hutterian Brethren of Wilson Colony at ABlawg.

Paying particular attention to previous case law and to the interpretation of the Charter within this case, Koshan argues that by easing the burden on government at the expense of disadvantaged groups the decision sets Charter jurisprudence back several years.

You can read the post here or click here for a pdf version.

My previous post on this case can be found here.

UPDATE: ABlawg.ca has a new post on the case by Jonnette Watson Hamilton, Controlling Entry into the Marketplace in Order to Exercise of Freedom of Religion.  The University of Alberta’s Faculty of Law Blog linked to the articles and generated a discussion in the comments.

The Centre for Constitutional Studies at the University of Alberta has posted a summary of the case, outlining the majority and dissenter’s use of the Oakes test.

On July 24, the Supreme Court released its decision on Alberta v. Hutterian Brethren of Wilson Colony, ruling 4-3 in favour of Alberta. This is an interesting case because it raises questions of religious freedom, state security, and the use of s. 1 to override s. 2(a) of the Charter.

The Hutterites of Wilson Colony brought the government to court over their objections to a regulation which came in to force in 2003 requiring a photo for all driver’s licences. Alberta began issuing photo driver’s licences in 1974, but had allowed an exemption for religious reason until this change. The members of the Wilson Colony had previously fallen under the exemption because they believe having their photo taken breaks the Second Commandment.

The community argued that the new regulation contravened their right to religious freedom under s. 2(a) of the Charter. They further argued this imposition caused them duress because of the necessity of driving due to their rural location and the conflict hiring outside drivers would have on their value of self-sufficiency. They asked for the exemption to continue and suggested exempt licences be stamped declaring them “Not to be used for identification purposes”. The Government of Alberta argued this imposition was necessary because of its face-recognition data bank used to prevent identity theft.

Though the Colony was successful in the lower courts, the SCC overturned these decisions, and ultimately agreed with the province that the infringement on the Hutterites religious freedom was justified under s. 1 of the Charter.

This ruling has raised much discussion, even within itself as the dissenting Justices wrote detailed opinions. TheCourt.ca has published two posts providing thought provoking analysis and commentary on the case.

First, The SCC’s Distressing Decision in Alberta v. Hutterian Brethren by Daniel Del Gobbo gives a summary of the case and examines the Court’s use of s. 1 to override the religious rights of the Hutterities and sides with the dissenters.

In the second post, The Globe Gets It Wrong On Hutterite Brethren (But Only Partially), Christopher Bird criticizes the Globe and Mail’s comparison of the case to Charkaoui v. Canada.

This question is raised again and again in Canada, when should state requirements override people’s freedom to follow their beliefs? In matters of security as in this case? Of beliefs passed on to children? When is someone old enough to follow these beliefs without state interference? No doubt we will continue to see these questions asked of the courts and watch with interest as they give us their answers.

This was a close case. Do you agree with the majority’s ruling or with the dissenters?

UPDATE: A new post on the case can be found here.  (August 10, 2009)

UPDATE: Daniel Del Gobbo has written another post on this case at TheCourt.ca. This time, he examines the freedom of conscience element of this case and the history of freedom of conscience cases in Canada. (August 26, 2009)

Listen to Adamant Eve tonight at 5:30 to hear my interview with Jennifer Koshan of the Women’s Court of Canada.

The Women’s Court of Canada is a group of academics, lawyers, and equality activists who came together to rewrite decisions of the Supreme Court which they felt were lacking in consideration of section 15. The result is six decisions which were published in Volume 18 of the Canadian Journal of Women and the Law.

In March of this year, four members of the WCC came to the University of Alberta, spoke about the Court and conducted workshops on their respective decisions. Professor Koshan spoke about N.A.P.E.;  Gwen Brodsky spoke about Gosselin v. Quebec (Attorney General);  Sharon McIvor spoke about Native Women’s Association of Canada v. Canada; and Melina Buckley, who rewrote Symes v. Canada spoke about her work with the suit filed against the government of British Columbia by the Canadian Bar Association demanding the government recognize civil legal aid as a consititutional right. It was a facistnating afternoon and luckily for Eve listeners we recorded it and will be playing the lectures on upcoming shows.

I spoke with Professor Koshan about the formation of the Women’s Court, about the N.A.P.E. case, which Professor Koshan chose to rewrite, about pay equity, and much more.

Listen to Adamant Eve on Fridays at 5:30 on CJSR 88.5 FM or listen live at www.cjsr.ualberta.ca/listenlive.htm.

UPDATE: The podcast can now be found on Adamant Eve’s main page, blog, and by clicking here.

Originally posted on the Adamant Eve blog.