Canada Post will continue to ban “sexually explicit” material from its general delivery admail service, despite a January ruling at least partially upholding the Sex Party’s right to freedom of expression.
The Sex Party challenged Canada Post’s criteria for “Non-Mailable Matter” in 2006 after the postal agency refused to deliver one of its political pamphlets. The pamphlet outlined the party’s Politics for a Sex-Positive Future and contained a sexual IQ test and images of potentially erotic art, including a photo of a doorknob in the shape of a penis.
Canada Post rejected the pamphlet because, according to its admail policy at the time, it “will not knowingly deliver offensive articles that contain sexually explicit material.”
Ruling that the corporation’s restrictions were “impermissibly vague,” federal court Justice Michel Beaudry gave Canada Post six months to clarify its regulations and define what counts as “sexually explicit.”
When the case was heard last October, Canada Post lawyer Steinman offered the following definition: representations of nudity suggestive of sexual activity, representations of sexual intercourse, and written text describing sexual acts in a way that is more than technical all fall under the umbrella of sexually explicit, he said.
Had that definition been included in the corporation’s regulations to begin with, Beaudry said he would have dismissed the Sex Party’s complaint outright.
Imposing certain conditions on the distribution of sexually explicit material is demonstrably justifiable in a free and democratic society, he ruled.
Dr Gary Kinsman, sociologist at Laurentian University and author of The Regulation of Desire: Homo and Hetero Sexualities, says the court’s decision is typical.
“They don’t want to actually rule that something is unconstitutional,” he says, explaining that instead courts tend to suggest that the flaw is in the procedure, not the prohibition.
The admail program is unique because, according to Canada Post, it is “the only national distribution network with access to homes, apartment buildings and businesses.”
“Canada Post really has the complete monopoly over deliveries to, for example, anybody [with] a letterbox in the West End,” says Sex Party leader John Ince.
Ince claims that most other political parties in Canada take advantage of the service precisely because Canada Post employees can access addresses to which private delivery companies cannot.
Having removed the term “offensive” from its admail policy and added a definition for “sexually explicit,” Canada Post says it’s now in line with the court’s requirements.
The revised policy states that admail containing images or representations of nudity “that are suggestive of sexual activity,” images or representations of sexual intercourse, and text that “describes sexual acts in a way that is more than purely technical” must now be enclosed in an opaque envelope marked “adult material.”
Material considered illegal under Canada’s obscenity law is entirely prohibited.
At the hearing, Ince told the court it wasn’t an option to put his pamphlet into envelopes marked “adult material.”
“Nothing in the material purports to be aimed specifically at adults. We want young people to have access to our content if they are interested,” he said, adding that concealing the flyer only perpetuates a negative attitude towards sex and sexuality.
“The idea that there is something wrong with sexually explicit material and sex-it’s exactly the opposite of what we want to express.”
Now Ince feels the new rules offer some “liberalization” of the policy, in some ways.
Nudity alone “doesn’t need an envelope,” he points out, “which is a big change. And pornography, which they used to prohibit, is now permissible — all it takes is an envelope.”
Still, he has concerns.
“The effect is that anything that is sexual, whether it is political expression or hardcore pornography, is classified as the same,” says Ince. “We see that as a classic emblem of sexphobia.”
To the Sex Party’s assertion that concealing the material runs counter to its political aim of eradicating the “cultural taboo” against open discussion about sex, Beaudry ruled that this constraint “is outweighed by the benefits of protecting children from unfiltered access to the information.
“The possible harm that could be produced by a young person looking at the Sex Party’s pamphlet is incredibly minimal,” says Kinsman, “compared to the damage that’s done to young people by not allowing them to have any access to sexual information.”
Kinsman insists that “young people are not simply innocent” of sexuality or eroticism. “They’re interested in exploring their bodies and their pleasures,” he says, arguing that this curiosity should be “supported and facilitated” in safe contexts.
Ince says his party agreed with Canada Post’s submission that some children might be rendered anxious or embarrassed by the materials contained within the contested pamphlet in the same way that an environmentalist or homophobic tract might cause these reactions. But, he says, “that’s never been the test in a democracy.”
Paraphrasing a 1983 United States Supreme Court decision in a contraceptive company’s suit against the US Postal Service, Ince told the court: “The standards of regulating the letterbox are not to be governed by the standards of the sandbox.”
Beaudry, citing differences between the Canadian Charter and the United States Constitution, dismissed the American case as irrelevant to his own ruling.
Laws and prevailing social attitudes surrounding sex have a strong influence over sex education, Kinsman notes.
In the event that the Sex Party’s pamphlet was seen by children accessing the mail, he thinks that it “could actually open up some useful conversations between children and parents or caregivers.”
Kinsman asserts that sexual explicitness is often judged through a heterosexual-identified male gaze. It is less contentious to portray “prone, naked women’s bodies” he says. “Where sexual explicitness actually has come in is when the penis is present in these images, especially penises with any level of erection.”
Depictions of queer or otherwise marginalized sexuality have historically been considered “more sexually explicit,” he adds.
Ince says the Sex Party expects to run candidates in the event of a fall election and plans to create a new pamphlet that will conform to Canada Post’s guidelines.
“What we can do is not show images that are sexual,” he explains. “Erotic art can be erotic art but have no sexual connotation.
“It’s still going to bother anybody who has problems with nudity or nakedness,” he notes, adding, “we want to see if Canada Post will allow that.”
If not, he adds, the party will likely go back to court.