What should be the basis for hope?


I agree hope is one of the most important things in our lives, particularly for those who are marginalized in society and around whom is rarely anything more than silence.

Except now.

First, the Alberta Government decided to add sexual orientation to its human rights law a decade after the Supreme Court of Canada declared sexual orientation a right analogous to those in Chapter 15 of the Charter of Rights and Freedoms–in ruling on a challenge from Alberta–that effectively added sexual orientation to the Alberta law, making this addition symbolic, but important. But not adding gender identity and gender expression.

Second, it decided to defund sex reassignment surgery, funding it had maintained during the decade Ontario had not funded this surgery. Ontario refunded SRS last June.

In the coverage generated over this decision to defund, there has been much mention the Ontario Human Rights Commission ordered the Ontario Government to refund surgery as a basis for hope. In fact, the Ontario Government agreed that if the Commission in Hogan, et al. ordered it to, it would.

But the Commission didn’t.

This is the only Ontario Human Rights Commission decision I am aware of concerning funding of SRS in Ontario: Michelle Hogan, Martine Stonehouse, A.B. and Andy McDonald v. Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care (Tribunal Decision) in 2006 which is reported on the OHRC website here.

In summary, four transsexual people filed a human rights complaint on the basis that delisting funding for SRS–which the Mike Harris government did just about a decade ago–violated the human rights of transsexual people.

Three of the complainants were in the queue for surgery when funding was delisted, but not at the point which the Harris government recognized as far enough along, the fourth transsexual person was not in the queue. The tribunal ruled the Government of Ontario must pay for the three who were in the queue–it simply finessed the point at which they were recognized to be “in the system.” The ruling was that Ontario either pay for surgery for these three or, for those who had paid for surgery by other means, reimburse them.

The fourth transsexual person, not being in the system at all, was ruled not th have had his–I believe he was a female to male transsexual person–rights violated.

This was an extremely disappointing outcome.

One of the four tribunal members, in a minority and dissenting opinion, ruled that “the government’s decision to remove public funding for sex reassignment surgery was discriminatory, arbitrary, reckless and an abuse of power. She would have ordered the government to fund sex reassignment surgery for all four complainants, since all four met the criteria for funding that had existed prior to October 1, 1998.”

It is my understanding discussions between the former Ontario Minister of Health, George Smitherman, the Trans Health Lobby Group AND others lead to the ministerial decision to relist SRS in Ontario.

It is unclear whether a Human Rights Agency would order a government to establish a spending program, however small–so-called positive rights–as opposed to rectifying individual situations, when they are currently based on negative rights including employment, accommodations and services; that is, not spending programs but causing people, entities, etc, NOT to do things, like discriminate. .

This is also illustrated in the B.C. Tribunal decision to order the B.C. Government to pay for a female to male procedure; “it was ordered to pay for the phalloplasty of Louis Waters because his sexual reassignment from woman to man was underway when B.C. de-funded the procedure.”

Personally, I am not convinced the current regime of implicit protection of gender identity under the statutory categories of sex and especially for surgery, sex AND disability, is enough to leverage governments to list, or in the cases here, relist surgery without other pressure.

Even explicit and formal creation of the category of gender identity (and I would personally hope for the creation of the category of gender expression, also) may not do what is needed. However, the raising of the public profile of transsexual people, our embodied lives, struggles and needs, not only for surgery, but also for counselling, hormones and hair removal as publicly funded services, as part of a campaign for explicit human rights, might.

Such a campaign in Alberta has recently been reported on Xtra.ca, here, and elsewhere, with Mercedes Allen being prominently mentioned.

I would find more hope in an overt political campaign, even including human rights complaints, as long as the limits of human rights agencies are explicitly understood.

UPDATE: I have been struck by the language used in the campaign to relist SRS in Alberta. The Egale Canada press release uses the language “transsexual and transgender people,” which is a change since Mickey Wilson took over trans policy–the term has been “transgender” only. The apparent leader of the movement, Mercedes Allen, is also using the term “transsexual” whereas previously the term has been “transgender” only–as in “transgender surgery.”

This usage has been mine all along, though I have been criticized for even using the word “transsexual;” I have found it incoherent to use the phrase “transgender surgery.”

Hope is not based on an imposed and inaccurate unity.

For me, distinction and difference, respected, is the basis of hope.


2 Responses to What should be the basis for hope?

  1. Vanessa says:

    *sigh* Sometimes it seems as though the struggle is endless. I’m heartened by small steps made forward, and how public opinion is shifting (at least in the US) towards tolerance and away from hate. Surely once the public perception has changed laws will soon follow?

  2. Greg says:

    Hey congrats on having a letter published at “SALON”. Just thought I’d let you know that somebody noticed, and thought it apposite. I clicked on to find others, but learned it was your first.

    Not your last I hope. A useful and interesting community there.

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