The Glone and Mail - 01.08.2019

THURSDAY,AUGUST1,2019 | THEGLOBEANDMAILO A

OPINION

NEWS |

W

hen Canada added gen-
der identity or expres-
sion to the list of explicit
prohibitions from discrimination
through Bill C-16 in 2017, a poll
found 84 per cent of respondents
supported the decision.
Explicit prohibition from dis-
crimination offers two approach-
es for combatting discrimina-
tion: It places the onus on some-
body seeking to discriminate to
prove it is reasonable to do so,
and thanks to equivalency be-
tween explicit protections, it
brings in past judgments on any
explicitly prohibited discrimina-
tion into the context of every
other one.
It was an important win. But
nonetheless, transgender-rights
activists had no illusions about
where the fight for equality
would really occur: the courts.

One such legal battle is hap-

pening at the BC Human Rights

Tribunal. The complainant,

Jessica Yaniv – a transgender

woman – brought forward com-

plaints against more than a doz-

en businesses that, she claims,

balked at Brazilian waxing her

genitals because she is transgen-

der and has not sought gender-

affirming genital surgery.

Some businesses defended

themselves by saying it was due

to specific training and supplies

needed to accommodate her, as

she has typically male genitalia;

some said that because they

work from home alone, they can-

not offer their service to every-

one because of some combina-

tion of dignity, safety, technical

and religious grounds.

The case is about broader is-

sues than just genital-waxing

services, though. It’s about

whether we tolerate culturally

rooted stigma; whether we allow

businesses to refuse service to

anyone because of sexual, racial,

gender or religious identities;

and whether we expect Canadian

businesses to adhere to our laws

as intended and without excep-

tion.

Transgender women are wom-

en, like tall women or franco-

phone women are, and everyone

has the right to equal treatment

under our law. Everyone is entit-

led to access services free of dis-

crimination, balanced by the fact

that every worker is entitled to a

safe, dignified workplace. These

facts are binding, but they still

need to be advocated for, be-

cause cultural norms have not

fully adjusted. In 2019, publicly

funded charity Vancouver Rape

Relief justified excluding trans-

gender women and girls on the

basis that we are not born wom-

en. In 2017, a Toronto women’s-

only spa refused to accept a trans

woman. In 2014, a Richmond,

B.C., barbershop denied a young

transgender man a haircut, say-

ing that it doesn’t cut women’s

hair.

Employers carry a responsibil-

ity to protect workers while

offering services without prohib-

ited discrimination. A worker can

refuse to perform unsafe or un-

dignified work within reason, but

their employer is required to em-

ploy staff who will do the work it

advertises. This rule applies to a

business offering Brazilian waxes

as it does for a health authority

offering provincially funded care.

But such accommodation is

meant to happen without undue

hardship to the business. Accom-

modating every need requires

deep pockets, and courts do

allow leeway: Governments and

large enterprises have a much

shorter leash than small busi-

nesses.

That means that while every-

one may be entitled to get their

genitals waxed, nobody is guar-

anteed to have every special

need met by every provider at

every location. Everyone has a

right to access services without

prohibited discrimination, but

there’s no right to demand any

specific worker, nor continuous

availability. Believing this is a

right isn’t equality – it’s believing

that your equality is more equal

than others’. It’s contrary to what

trans people have fought for, in

our own pursuit of truly equal

rights.

Looking among the tribunal’s

defendants, I see single moms

scraping a living together waxing

people’s genitals for low wages,

now forced to defend themselves

in court. I’m reminded of the

false bogeymen that live in cis-

gender people’s minds, and how

Ms. Yaniv, who has been de-

meaning to immigrants on social

media and allegedly harassed the

business owners, does nothing to

diminish them. I’m seeing the

hatred fill my inbox, amplified by

her choices.

This is a crucial point: Being in

a community is never armour

against criticism for an individu-

al’s actions. As I said, transgender

women are women. As is the case

for any broader demographic,

that also means some transgen-

der people are as susceptible to

bad behaviour as cisgender peo-

ple. So, as we wade through the

transphobia saturating the com-

mentary around the case, con-

text is still important – and that

context includes a person seem-

ingly disingenuously pursuing

this as a human-rights issue.

But the law doesn’t choose the

cases; the cases choose the law.

This is an awful situation, to be

sure – and the way forward is the

pursuit of policies that prepare

businesses’ staff for diversity

while keeping them safe. Who

knows where we’d be instead, if

that was already the case.

JessicaYaniv’sfightfortransrightsmissestheverypoint:equality

MORGANEOGER

OPINION

FounderoftheMorganeOger
Foundation,vice-presidentofthe
BritishColumbiaNDPandisatrans
woman

T

hree hundred years ago,
the priests who then effec-
tively controlled the Island
of Montreal, made a promise to
their Mohawk neighbours,
whom they had been converting
to Catholicism. The Mohawks
would get their own, bigger, tract
of land off the island if they
agreed to move.
The Mohawks upheld their
end of the bargain, but the
priests did not, or at least not en-
tirely. And that is where you
need to start to make sense of
the enduring tensions between
the Mohawks of Kanesatake and
the non-Indigenous residents of
the nearby town of Oka, Que.
Until the betrayal by the Sulpi-
cian priests is addressed, recon-
ciliation can be nowhere in sight.
It is now up to the federal gov-
ernment to see to it that the land
claim at the heart of this conflict
is settled once and for all. The
good news is that, perhaps at no
time since the 1990 Oka Crisis,
which took the life of a Quebec
police officer and set the cause of
reconciliation back a couple of
decades, has the possibility for
real progress seemed as close.
Yet, instead of seizing the
moment, and purchasing two
large tracts of land at the heart of
the dispute that the properties’
non-Indigenous owner is willing
to sell, Ottawa is staying on the
sidelines. It timidly organized a
meeting last week with Kanesa-
take Grand Chief Serge Simon
and Oka Mayor Pascal Quevillon.
But instead of attending herself,
Crown-Indigenous Relations
Minister Carolyn Bennett dis-
patched her parliamentary secre-
tary, Marc Miller, to oversee the
affair.
It is unclear what mandate, if
any, Mr. Miller had to negotiate

on behalf of the minister. The

whole exercise appears to have

been more of an attempt at dam-

age control on the eve of a feder-

al election than a sincere effort

to achieve a durable peace. Be-

sides, Mr. Miller had to meet sep-

arately with each leader, since

Mr. Simon has refused to enter

the same room as Mr. Quevillon

until the mayor apologizes for

comments that the Mohawk

chief has called racist.

Mr. Quevillon’s remarks, evok-

ing the proliferation of cannabis

sales huts and illegal garbage

dumping on land developer

Grégoire Gollin had offered to

“gift” to the Mohawks, were in-

deed a smear. The behaviour the

mayor described can be attribut-

ed to a tiny minority of Mo-

hawks, and is equally decried by

Mr. Simon and most of the 2,500-

strong Mohawks living in or near

Kanesatake. Most of the 4,

non-Indigenous residents of Oka

understand that.

Mr. Gollin’s motives are not

entirely altruistic, of course. His

prospects for developing the

land in question for non-Indige-

nous housing are dead in the

water. So, he came to an agree-

ment in principle with Mr. Simon

to cede the land to the Mohawk

Band Council on the condition

that it be maintained as an

ecological reserve, which would

entitle Mr. Gollin to a charitable

tax-credit.

Any such deal would have to

be first approved by a majority of

Mohawks. Many are against ac-

cepting Mr. Gollin’s offer, and not

just because it comes with

strings attached. They believe

most of the land in question be-

longs to them in the first place.

So, Mr. Gollin wants Ottawa to

step in and buy the 60-hectare

tract of land he offered to gift to

the Mohawks and an adjacent

150-hectare plot he also owns.

Federal ownership would ensure

the land is held in trust awaiting

a settlement of the Mohawk land

claim.

The response from Ms. Ben-

nett’s office has amounted to

“that’s not how we do things.”

Ottawa prefers reaching a finan-

cial settlement with the Mo-

hawks. The Mohawks could sub-

sequently use the funds to make

land purchases around Oka.

Ottawa is mostly fearful of cre-

ating a precedent that could be

used by other Indigenous groups

in their own land-claim negotia-

tions. But the situation of the

Mohawks of Kanesatake is

unique, and it requires a unique

response. A government that

claims to have put reconciliation

at the core of its mandate should

be making an extra effort to get

this done.

Twenty-nine years ago this

month, an attempt by the town

of Oka to expand a golf course

into a territory known as the

Pines, considered sacred by the

Mohawks, thrust their then-270-

year-old plight into the interna-

tional spotlight. It is more than

high time that the federal gov-

ernment put an end to their

waiting, which has lasted not 30

years, but 300.

In spite of what Mr. Quevillon

says, the will is there on all sides.

As Mr. Simon described it in an

open letter this week, those

white pines around Oka were

planted around 1870 by both

Mohawks and French settlers

who sought to mitigate against

recurring sandstorms.

“These are trees of peace,” Mr.

Simon wrote. “Whether in 1870

or 1990, history teaches us les-

sons. I hope everyone will retain

them, in order that our rights be

recognized all while taking the

path toward peace and harmo-

nious cohabitation.”

AsOkaedgestowardacrisis,Ottawaismissinginaction

KONRAD
YAKABUSKI

OPINION

KanesatakeGrandChief

SergeSimonspeaksto

reportersafterameeting

withfederaland

provincialrepresentatives

inMontrealonFriday.

Thefederalgovernment

organizedthemeeting

todiscussa300-year-old

landdisputebetween

Mohawkpeoplefrom

Kanesatakeandthe

townofOka,Que.

GRAHAMHUGHES/

THECANADIANPRESS

W

hen Canada stands up
for human rights, and
vows to protect the most
vulnerable, people around the
world will notice. Two Saudi sis-
ters, Dua and Dalal al-Showaiki,
need Canada to put its money
where its mouth is and accept
them as refugees.

For the vast majority of Saudi

women, life is improving in their

country as social and conserva-

tive norms are relaxing. From

new cultural and entertainment

events, to new individual free-

doms finally given to women

that allow them to seek work in

once-closed economic sectors –

and most notably to drive their

own cars – there is an overall

sense of optimism that the rigid

cultural customs of the past are

finally giving way to a more mod-

ern society. There is indeed hope

among most Saudi youth that

this country is on the cusp of

positive change.

This sense of joy, though,

applies to those who do not en-

gage in politics, and those who

are happy to be patient recipients

of top-down change. It certainly

does not apply to those who

want to be at the forefront of re-

forms. After all, Saudi jails are full

of young and old who have ques-

tioned theirgovernment’s poli-

cies and who have dared to ask

for the simplest rights, the least

of which being to place women

on an equal footing as men in the

eyes of the law. For LGBTQ Sau-

dis, the prospects of being open

about their identity and living

freely remain dim despite a flour-

ishing underground culture.

We might see Saudi Arabia

resemble its relatively more

relaxed neighbours such as the

United Arab Emirates or Qatar in

five to 10 years; but the country

will never have the social, cultur-

al or political norms of, say, a

Nordic country. At least, not in

our lifetime.

For a few vulnerable Saudis,

escaping their country is the only

hope for a normal life. Now hid-

ing out in Turkey, Saudi sisters

Dua, 22, and Dalal, 20, fled Saudi

Arabia and are seeking asylum in

Canada. The sisters have stated

their father was planning to force

them to marry older men not of

their choosing and that a brother

had been sexually abusive to

Dalal in the past. For the older

sister, Dua, coming out as a

young gay woman meant she

was expelled from her university,

ostracized and referred to a

women’s centre to likely get “re-

educated.”

Before we throw down the

gauntlet to Saudi Arabia for its

obviously-homophobic policies,

just look at the fact that six other

countries punish same-sex rela-

tionships with the death penalty,

and that 70 countries still punish

homosexuality with lengthy im-

prisonment. Just take a look at

the United States, the beacon of

individual rights, and one will

find some of the worst homo-

phobic state-level laws on the

books. Conversion therapy is still

practised in many U.S. states and

promoted by leaders such as U.S.

Vice-President Mike Pence. Three

Canadian provinces have banned

conversion therapy on minors

outright and only two cities in

our vast country have an outright

ban on this treatment, period.

The struggle to protect the hu-

man rights of the most vulnera-

ble is universal and we hold no

moral high ground, but we are

not unable to help. Canada’s gui-

deline on how to judge refugee

cases on the grounds of Sexual

Orientation and Gender Identity

and Expression (SOGIE) is not

flawless, as it remains hard to

prove and often requires already

vulnerable applicants to give in-

timate details about their lives

that they may want to keep dis-

crete.

We have a good track record in

approving SOGIE-related claims

for refugee applicants, but no

system is perfect because the

world is not perfect. When the

United Nations High Commis-

sioner for Refugees determines

the validity of Dua and Dalal’s

claims, Canada should help the

Saudi sisters have a chance at liv-

ing an ordinary life.

CanadamusthelptheSaudisisters

DuaandDalal

al-Showaikiare

countingonustobe

ahuman-rightsleader

BESSMAMOMANI

OPINION

ProfessorattheUniversityof
Waterlooandseniorfellowat
boththeCentreforInternational
GovernanceInnovationandthe
ArabGulfStatesInstitutein
Washington