Yet Another SSM Post

April 29, 2004 | 33 comments
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Somehow I ended up on the official Church website for UK and Ireland and found this on the top of the page:

“The Gender Recognition Bill, which is currently being considered in the House of Commons will allow a man to become a woman in law (and vice versa). This means transsexuals will be able to marry in their assumed sex. The legislation also makes it a criminal offence to disclose the birth sex of a transsexual. We stress that this Bill poses a real threat to religious freedom and we oppose it because we believe it runs counter to the will of God. Please make your opposition known by writing to your local MP as soon as possible. “

Those crazy Brits! What a way to get around the SSM debate–just allow people to select their own gender.

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33 Responses to Yet Another SSM Post

  1. Julie in Austin on April 29, 2004 at 10:43 pm

    fix. Seems like only Kristine’s posts and mine have this problem–is this a gender thing?

  2. Adam Greenwood on April 29, 2004 at 11:36 pm

    If I’m not mistaken, the law doesn’t require a physical sex change, either. One changes gender like one changes a name.

  3. Kristine on April 30, 2004 at 10:45 am

    Guys, I really hate having to say this again: being transgendered and being gay are not at all the same thing–they’re not even closely related. The bill in question would not be a way to get around the same-sex marriage issue, unless one presumes that lots of gay men would happily declare themselves to be women, or lesbians would declare themselves men, for the sake of marrying. Being a gay man does not mean being insufficiently male. Being a lesbian is not a deficit in femaleness.

  4. Kim Siever on April 30, 2004 at 11:02 am

    How is it a threat to religious freedom?

  5. lyle on April 30, 2004 at 1:53 pm

    Kim: To answer your question…the following unattributed news story explains in part. Basically: Sodomites can now use the coercive power of the state to silence those religious believers who feel that homosexuality is a sin. But then again…our Candian friends lack a first amendment too. go figure.

    Canada’s governor general, the representative of Queen Elizabeth II, signed into law yesterday a controversial measure opposed by religious believers and free-speech advocates who say it will criminalize public expression against homosexual behavior.

    The bill, passed 59-11 by the Senate on Wednesday, adds sexual orientation as a protected category in Canada’s genocide and hate-crimes legislation, which carries a penalty of up to five years in prison.

  6. Kaimi on April 30, 2004 at 1:58 pm

    Lyle,

    I haven’t researched the Canadian law myself, but law professor Brian Leiter reports that it has a very clear carve-out for religious expression.

    See http://webapp.utexas.edu/blogs/archives/bleiter/001168.html .

    Leiter cites to the provision:

    319. (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of

    (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

    (b) an offence punishable on summary conviction.

    (2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of

    (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

    (b) an offence punishable on summary conviction.

    Defences

    (3) No person shall be convicted of an offence under subsection (2)

    (a) if he establishes that the statements communicated were true;

    (b) if, in good faith, he expressed or attempted to establish by argument an
    opinion on a religious subject;

    (c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he
    believed them to be true; or

    (d) if, in good faith, he intended to point out, for the purpose of removal,
    matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.

    (…)

    Consent

    (6) No proceeding for an offence under subsection (2) shall be instituted without
    the consent of the Attorney General.

  7. Kim Siever on April 30, 2004 at 2:08 pm

    lyle,

    I don’t see how making sex changes legal nor restricting publication of birth gender will infringe on anyone’s freedome (specifically that of the LDS Church) to worship God how they may. Nor do I see how the GRB will enable “sodomites [to] use the coercive power of the state to silence those religious believers who feel that homosexuality is a sin.”

    We do not have a first amendment, but freedom of religion is already built into our Canadian Charter of Rights and Freedoms.

    2. Everyone has the following fundamental freedoms:
    a) freedom of conscience and religion;
    b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
    c) freedom of peaceful assembly; and
    d) freedom of association.

  8. Steve Evans on April 30, 2004 at 2:15 pm

    Lyle, a little research prior to posting that would have saved you some headaches, I think. Canadians don’t need a First Amendment when our Charter got it right the first time.

  9. lyle on April 30, 2004 at 2:40 pm

    Steve/Kim: Then why is ‘free speech’ not as strongly protected in Canada, or Europe for that matter, vis-a-vis the U.S. if the Charter got it right the first time?

    Kaimi/all: Yes, there is a carve out. But…then why are Canadian religious groups going bonkers & upset about it? Worried that they will be prosecuted anyway?

    Why don’t you address the fears of these folks re: their “fundamental” freedoms? If they still exist despite a carve-out…are they just idiots?

  10. Nate Oman on April 30, 2004 at 2:58 pm

    Steve: My dad served a mission in Quebec, so I have been raised on jingoistic Canadian nationalism. However, the “got it right the first time” point is a little bit…um…forced.

    My understanding is that the Charter of Rights was not adopted until 1982. The previous Candadian Bill of Rights wasn’t adopted until 1960 and didn’t apply to the provinces. The Bill of Rights came just 93 years after the British North America Act of 1867 (aka the Constitution Act) and the Charter of Rights had to wait 115 years. The United States adopted the constitution in 1787. The First Amendment came four years later in 1791. Seventy-nine years later in 1868, the Fourteenth Amendment was ratified. Sixty-three years after that in 1931 the free speech clause was incorporated against the states in Stromberg v. California.

    Here is the breakdown:
    1. From Constitution to Full Speech protection:
    United States — 144 years
    Canada — 115 years

    2. From Constitution to ANY speech protection
    United States — 4 years
    Canada — 93 years

    3. From partial speech protection to full speech protection
    United States — 140 years
    Canada — 22 years

    BUT

    4. Total years of ANY speech protection
    United States — 213 years
    Canada — 44 years

    A final note: It is not clear that the the speech protection provided by the Canadian Charter of Rights is as robust as that provided by the First Amendment, since it contains what looks like a fairly large “good-government exception.”:

    “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

  11. Ethesis on April 30, 2004 at 3:13 pm

    Well, Lieter also points with some satisfaction to a guy prosecuted under a precursor for refusing to handle some pro-gay work (he actually did a fair amount of it, but drew the line at something that he thought was excessive).

    Typical fines, etc. were levied in a way that would not have happened south of the border.

  12. Steve Evans on April 30, 2004 at 3:25 pm

    Nate: “My dad served a mission in Quebec, so I have been raised on jingoistic Canadian nationalism” — well, I can’t account for that, now, can I, but it seems strange that you should be subjected to Canadian nationalism at all, under those circumstances.

    I didn’t say that we’d had speech protection longer, nor did I say that it was as “robust” as those protections provided by the 1st Amendment, although that is a very debatable point (case law, I believe shows the two countries to have similar tendencies). I just said we got it right, and I believe it (though it was a bit inflammatory, I guess… sorry for the flareup of ardent Canadianism).

    The “good government” provision is, in my mind, a valuable addition (and typically Canadian in its reasonableness) in that it permits the Government to act against hate speech and obscenity, while at the same time empowering courts to strike limitations on speech that are unreasonable. It’s a extremely well-balanced provision, in my opinion.

    Freedom of speech is not the sole and highest end of democracy, in my opinion. That may be a fundamental difference between American and Canadian perceptions of government, and so our arguments may be going past each other in that regard. I have few qualms about limiting free expression in reasonable ways.

    “why are Canadian religious groups going bonkers”? Because they already were, IMHO. The religious right in Canada is seen as generally more extremist and bizarre than its American counterpart. That perception may be due to the overall moderate politics of Canada in general.

  13. Julie in Austin on April 30, 2004 at 3:54 pm

    Kristine–

    I think most of us realize the difference between transsexuality and homosexuality, but don’t you think many homosexuals would be more than willing to fudge to a government clerk (like I did on that fifth degree of consanguinity question I didn’t understand) in order to get the legal protection of marriage? If I understand the bill correctly, it doesn’t exactly require you to wear high heels for the rest of your life, you are just checking off a box and then you can go about your business.

  14. Kristine on April 30, 2004 at 4:01 pm

    No–do you have many friends who would legally declare themselves to be the opposite gender of what they are to receive *any* government benefit? I don’t.

  15. Julie in Austin on April 30, 2004 at 4:04 pm

    Let me poll some of my homosexual friends and get back to you, but my suspicion is that the response from most would be, “Since gender is (1) non binary and (2) a social construct anyway, who the heck cares?”

  16. Kim Siever on April 30, 2004 at 4:04 pm

    “Then why is ‘free speech’ not as strongly protected in Canada, or Europe for that matter, vis-a-vis the U.S. if the Charter got it right the first time?”

    I thought we were talking about freedom of religion.

  17. Adam Greenwood on April 30, 2004 at 4:10 pm

    Canadian provinces can also opt out of the Charter, which Quebec has done routinely.

  18. lyle on April 30, 2004 at 4:11 pm

    free speech & freedom of religion are generally the same thing…unless you happen to have taken a vow of silence.

    i’m also glad to hear that conservative christians are “nutz.” hopefully members of the LDS church are accorded the same respect.

  19. Kristine on April 30, 2004 at 4:15 pm

    Julie, my queer theorist friends would reply that way, but many of my gay friends would not.

  20. Julie in Austin on April 30, 2004 at 4:20 pm

    Are you calling my gay friends queer theorists? (said in threatening tone)

    (You’d be right. That’s what happens when you go to grad school in Berkeley.)

  21. Steve Evans on April 30, 2004 at 4:25 pm

    “free speech & freedom of religion are generally the same thing”

    WHAT!?! Come on, lyle…

    Adam: the “notwithstanding clause” isn’t as simple as opting out, but you’re right to point it out as a danger to freedom of expression, particularly in Quebec’s infamous Bill 101 context. http://www.worldhistory.com/wiki/n/notwithstanding-clause.htm is a helpful summary of this topic. It’s worrisome, to be sure — but my understanding is that it’s been rarely used and may be regarded as a largely vestigial piece of the Charter. Politicians threaten to resort to it all the time, but it’s a rarity to see anything come of such threats. The clause was necessary at the time of the Charter’s passage as a nod to multiculturalistic concerns, particularly with regards to preserving Quebec’s culture. Since there’s no danger of another FLQ crisis and Quebec nationalism is the product of a bygone era, I’d be surprised to ever see the notwithstanding clause invoked. I find it hilarious to learn that Bork wanted a similar clause added to the Constitution…

    How exactly did this become a thread on Canadian constitutional law?

  22. Nate Oman on April 30, 2004 at 4:29 pm

    Steve: Ultimately, doesn’t everything become a thread on Canadian constitutional law, I mean if you scratch below the surface a little bit. Be honest…

  23. Kristine on April 30, 2004 at 4:29 pm

    Actually, Steve, I think it’s a hopeful trend–for a while a post could have started off being about Canadian constitutional law (or practically anything else) and ended up being about same-sex marriage; it’s good to have it go the other way around for a change!

  24. Steve Evans on April 30, 2004 at 4:31 pm

    I’d add that Quebec has not “routinely” resorted to the notwithstanding clause re: freedom of expression — it did so once. I don’t think it’s been invoked in any other circumstance by Quebec.

  25. lyle on April 30, 2004 at 4:43 pm

    Steve: I refer you to any of the church-state articles by Prof. Geddicks who is one of several legal scholars who have noted that ties between freedom of religion & free speech.

    re: the “notwithstanding clause.” You said: “It’s worrisome, to be sure — but my understanding is that it’s been rarely used and may be regarded as a largely vestigial piece of the Charter.”

    In the interests of consistency, as Kaimi pointed out in Adam’s hustings thread, perhaps you might ask Kaimi, or other ACLU card-carrying members (since my ACLU membership doesn’t seem to count), feel about your logic & its implications in the current PATRIOT act debate.

  26. Steve Evans on April 30, 2004 at 4:52 pm

    Lyle:

    sigh… I don’t think that Canadians support the PATRIOT act — especially since it’s an AMERICAN piece of legislation. Why on earth would I evaluate it in light of the Canadian Charter?

    About ties between freedom of religion and free speech, there’s no question the two may inter-depend. But they are NOT the same thing, and you said they were.

  27. lyle on April 30, 2004 at 5:41 pm

    Steve: Hm, maybe you have a pont. So, Canadians shouldn’t care about American legislation; and vice versa. I’m glad I don’t have to worry…yet, about the LDS Church being persecuted because it supports “hate speech” by preaching against homosexuality.

    Of course, supposedly teachers in America have the same type of carve-out right that the Canadian bill does, i.e. if they have “good faith” then their forced union dues can’t be used for political views they find repugnant. Of course, they have to go through an inquisitional like trial to prove this in some states (i.e. Michigan…it’s northern latitude is probably just a coincidence). I’m sure that Canadian Christians have nothing to fear. They will be prosecuted and then at trial, after the prosecution rests, they can present their “defense” that it was “good faith” religious speech.

    When was the last time you bore your testimony to someone? Was that an exercise of your religious freedom? Or freedom of speech? Or is it the same thing? We can quibble about what ‘right’ it is…but the end result is “speech” which is “religious” in nature.

  28. Kim Siever on April 30, 2004 at 6:34 pm

    “free speech & freedom of religion are generally the same thing”

    Then why are they distinguished differently in constitutional documents? Freedom of religion is no more the same thing as freedom of speech than freedom of the press or freedom for lawful assembly is. If they were all the same, there would be no need to specify each of them.

  29. Kim Siever on April 30, 2004 at 6:40 pm

    “When was the last time you bore your testimony to someone”

    Surely, you’re not suggesting the sharing one one’s feelings of the gospel constitutes all of one’s religion. If this was the case, then I could see how freedom of religion and freedom of speech were “generally the same thing”. However, religion—particularly ours—consists of more than vocalising of personal beliefs.

  30. lyle on April 30, 2004 at 7:24 pm

    Kim: Yes, religion does consist of “more.” However, I’m only pointing out that speech is a “minimum,” or necessary part of religous liberty. Of course, not all would agree & this is very very problematic in Muslim countries (hence, the lack of proselyting missionaries).

    You are certainly right re: specificity. I concede that there are distinctions; I’m just not sure that the distinction is very meaningful. In too many ways, IMO, Americans have more freedom to “speak” than they do to exercise their religious freedom; hence my ire re: Canada’s willingess to “limit” _hate_ speech. If this bill were passed in America, I would really fear for religious liberty in the US becuase the American Supreme Court has given far more rights to free speech than religious freedom; which is why Geddicks & others have argued for basing religious freedom in free speech. So, if speech could be limited by statute, constitutionally, to protect a new homosexual institution from criticism, any religious carve-out would be all the weaker because of its lower “position” in the hierarchy of constitutional norms.

    (although the “distinction” argument does remind me somewhat of the argument about whether America needed a bill of rights with specific enumerated rights…or whether they were already protected).

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  32. Our Thoughts on April 30, 2004 at 6:30 pm

    Europe North Area Presidency and Gender Recognitio
    The statement also encourages local members of the Church to write to their Member of Parliament. One thing the Area Presidency suggests be covered in such a letter is that the bill “poses a real threat to religious freedom” and that R…

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