(Image Credit: “Gender Non-Conforming Flag’ by author Pradejoniensis, via Wikimedia Commons; the image is at this link. Used without modification under Creative Commons Licence)
The case of the teacher in Oakville presenting as a woman in an outlandish manner is the natural outcome of a flawed legislative process. Is the Canadian society capable of having a mature discussion about such issues?
QUITE THE SIGHT
During what turned out to be a genuine case of ‘Phew, what a fortnight!’, we learned about a teacher at a school in Oakville, ON turning up in a manner that was sure to raise many eyebrows. In a sign of the times, I saw this first on Twitter (as the media personality Jonathan Kay has observed, nowadays all the important news seems to break only on Twitter). But given the fast-paced nature of that platform, I cannot quite recollect the Twitter account that brought it to everyone’s notice; hence, I am unable to locate that account now. They claimed that they had confirmed the facts about the case, where the teacher (who is said to have been a male / man until recently) had been seen wearing a preposterously large prosthetic bust with hard nipples. Joe Warmington of the Toronto Sun followed up on the story (see this link), reporting that the Halton District School Board (HDSB) had issued a statement saying that they were looking at “going through creating a safety plan” for the teacher’s security as school resumed.
The statement issued by the school can be seen at this link of the newspaper Daily Mail of the UK (yes, the story has gone international). In it, the school says that as part of the HDSB, it “recognizes the rights of students, staff, parents/guardians and community members to equitable treatment without discrimination based upon gender identity and gender expression. Gender identity and gender expression are protected grounds under the Ontario Human Rights Code“(emphasis added). I believe this this part of the statement brings us to the nub of the issue. Given the legal framework under which it operates, the school has no recourse other than to let this teacher present in this manner. Any qualms we may have about the situation are the result of the fact that the legal framework does not specify any limits that would restrain the teacher from presenting in this manner.
It is worth pointing out here that what constitutes ‘gender expression’ is left undefined. At the risk of inviting a lot of backlash, I am prepared to say that this makes ‘genderism’ our modern Wild West. In a nutshell, what exact shape this Human Right takes is left to the imagination of the individual, and the rest of the society has no recourse other than to lend full accordance to this person’s idea of that Human Right. As anyone with a passing familiarity with the law can understand, this is a recipe for disaster; traditionally, laws are infamous for being excruciatingly detailed. Viewed in that light, the case of this teacher is not surprising in the least.
Short snippets of videos available so far show this teacher at some kind of a workshop, operating machinery. A lot of people have pointed out that the prosthetic bust is big enough to pose a safety hazard for that kind of work. In addition, the long hair of the teacher (which is said to be a wig, but I am not certain if it is) also pose a safety hazard. On one hand, the matter of safety may appear to be a separate issue from the one of gender identity / gender expression, but because this is a teaching environment, its importance cannot be ignored; teachers and instructors are supposed to inculcate awareness of safety among their students by personal example.
There has been much follow-up on the story over the fortnight by various media sources. In an interview by Rebel News, an official of HDSB made the rather startling statement that the dress code for students does not apply to staff. This statement created a separate controversy, as there cannot be separate (and stricter) dress code for students. A lot of people have pointed out that the teacher’s gender expression poses a danger to the students’ safety. It would seem that this is a tussle to decide whose safety concerns outweigh those of the other. I am of the view that this debate is unlikely to reach a conclusion, because the process that brought this part of the Human Rights Code into being was seriously flawed. Hence, any discussion that has the Code as its starting point is destined not to reach a destination.
We usually think of a law as the end-result of a legislative process – but this is true only at the surface level. If we peer closely, we will see that the legislative process is part of a broader political process which, in turn, is the culmination of an even broader societal process. This is the reason why, on matters of grave significance, reaching the point where we can codify our overall agreement into law usually takes a long time. Something starts as a social issue, gets debated (often hotly), then makes it to the political arena where it is again debated (often hotly) and lastly, in the process of arriving at the exact wording and details of the proposed law, it is yet again debated (often hotly) before being finalized. Even after this, various legal challenges are common, where certain parts of the laws are debated in courts (often hotly). On issues that have the potential to make significant and lasting change to the structure of the society, this entire series of processes (societal, political, legislative and juridical) unfolds over decades. Even then, there may be pockets of resistance to the newly established status quo; given the human condition, it is well nigh impossible to have 100% consensus on matters of grave significance.
Two good examples of this are the legalization, respectively, of same-sex marriage and marijuana. Both the issues were among the top of social issues for decades, and even after the laws that most Canadians are okay with (grudgingly or otherwise) were enacted, there are still groups that are as strongly opposed to both these arrangements as they always were.
This necessarily means that the exercise of implementing major changes on the society are messy, fractious and rancorous. We may be excused for being tempted to avoid this rancor and squabbles in preference to mental peace. However, in the long term, this rancorous process is the only way to avoid discord over the long term. This is because the fights will be over specific points, sub-points and sub-sub-points of the idea being proposed. They will be about multitudes of people putting their minds together to envisage the myriad scenarios that are likely (to a greater or lesser degree) to arise if the proposal were to be implemented. As the exercise rolls forward, these objections would either be resolved, or the proposal would be amended to avoid these scenarios. In short, there is persuasion and adjustment at work on the way to the destination of a finalized legal setup that most of the members of the society are either in agreement with or reconciled to.
The root of the problem in this teacher’s case (and more generally, in many other cases where gender expression / gender identity has caused friction) is that the exercise outlined above was short-circuited. Whether this was out of ideological zeal or with an eye on political gains is beside the point. In colloquial terms, we can call this a ‘top-down approach’. As a result, the societal process on Bill C-16 did not unfold as it should have. A variety of ‘what if?’ scenarios were either not allowed to be brought up or were shoved aside as transphobia. Therefore, the piece of legislation – from which the Ontario Human Rights Code is derived – is inherently defective. The two sides can keep making their arguments till the cows come home, and it wouldn’t take them an inch closer to a mutually agreed decision.
At this point, many readers may be tempted to point to the parliamentary committee hearings on Bill C-16 where professors Jordan Peterson and Gad Saad made forceful presentations against the blanket nature of the legislative proposals. However, the point here is that their arguments did not influence the final outcome (the legislation) in any manner whatsoever; the ‘persuasion’ and ‘adjustment’ aspects of the process were conspicuous by their absence. Incidentally, we are seeing a repeat of this precedent in the matter of the various pieces of legislation in relation to the Internet (Bills C-11, C-18 and the as yet unnamed Bill on ‘Online Harms’), where the strenuous objections of various stakeholders are being similarly brushed aside. This is another area where we can foresee a similar discord erupting over the short term, and potential disaster over the long term. This is because ANY law or policy that is implemented without according due consideration to the societal processes is bound to engender discord.
THE DEFINITION OF INSANITY
In fairness, Canada is not the only country where there was a mad rush to enshrine trans rights into law; this was also the case in many other western countries. (Let me make it abundantly clear here that I have nothing against trans rights; my issue is with the short-circuiting of the societal processes that would have helped us arrive at a more well-rounded piece of legislation with built-in mechanisms to handle contentious cases, rather than shutting down any objections as ‘transphobia’).
We now have two examples from elsewhere, where the whole issue of gender identity / gender expression has gone for a serious relook, viz., the closing of the Tavistock transition clinic in the UK, and the case of the Vanderbilt transition centre in the US where they took down their entire website, and there are calls for closing it down. I believe that we are well past the ‘alarm bells ringing’ stage; we can see the flames of actual fires in the distance. We should be taking measures to see to it that the fire doesn’t reach our home – but sadly (yet unsurprisingly, which is sadder still), the important components of our society on whom it is incumbent to bring the issue to the fore are silent. It is difficult to guess their motivation (or lack thereof) in the matter. Whether it is ideological obeisance or fear of being branded a transphobe and the consequences of that, they are failing in their duty to the society in a major way. Given that many of these components are members of the media receiving taxpayer assistance to ensure their very survival, this failure is especially worthy of condemnation.
And this is not just a case of things happening in other countries where someone can take shelter behind the argument that it cannot happen here. Even this common recourse to Canadian exceptionalism is inapplicable in the present instance, because we have already tasted the bitter fruits of ideologically driven policy that rode roughshod over the societal process that is supposed to be at the base of legislation and policy-making – in the form of the Hydro rates disaster in Ontario, where millions of people were reduced to choosing between buying food and paying the Hydro bills. This disaster led to the crushing defeat of the government that chose – and persisted with – this ill though-out policy – to the extent that the political fortunes of the party have not recovered even after 4 years. But their being in the political doldrums is cold comfort to the millions of Ontarians whose suffering cannot be erased. In addition, according to former Liberal MP Dan McTeague, the impact of the high cost of Hydro is simply being concealed in the present, by way of adding roughly $6.5 billion a year to the public debt of Ontario; at some point, these chickens will come home to roost, and cause further damage to Ontarians in their personal lives.
Do we want Canadians – who will number many more millions – to suffer the same fate? Some might argue – with reason – that it would be a much worse fate. The legal framework around the issue of gender identity / gender expression needs a serious relook. What are the ways in which the law / policy has seriously gone overboard? What are the constituencies other than trans people whose well-being has been potentially compromised because there aren’t enough built-in safeguards? This is especially the case for young Canadians. It is a cliché to say that ‘Children are our future’, but zero thought has been given to the possibility that many of these children may end up being confused or broken because this law was made hastily. What is the future of our society when a significant demographic of working age people will have been damaged before attaining adulthood? Thankfully, we still have some time to take remedial measures, but that time is running out fast.