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Should BDSM be safe from discrimination?

Human Rights Tribunal asks what counts as sexual orientation

BC’s Human Rights Tribunal will hear evidence later this year to decide whether the province’s Human Rights Code should expand its definition of sexual orientation to protect people with kinky sexual preferences, such as BDSM, from discrimination.

This is an important case, says gay lawyer Garth Barriere, because the BDSM community still faces discrimination-even within the queer community.

As society moves to accept more mainstream queers, “the fringes become less tolerated,” he says.

The case revolves around a complaint brought against the Vancouver Police Department (VPD) by a self-described pagan and BDSM lifestyler.

Peter Hayes had obtained work with a limousine company on May 16, 2005, provisional on his receiving a chauffeur’s permit from the VPD, writes tribunal member Lindsay Lyster in her Dec 28 preliminary decision.

Two days later, Hayes went to the police department where he was met by officer Kevin Barker who told him he was being denied the permit because of a 2003 complaint by a woman who suggested to the VPD that Hayes was involved in a cult.

“Mr Hayes thought this was a vindictive move by an ex-lover, as the cult that was named is a science fiction book called Tarnsman of Gor by John Norman,” writes Lyster. “Mr Hayes was surprised, as he had received no inquiries from the VPD for a year after the complaint was made.”

Hayes asked for details of the complaint but Barker refused to provide them, Lyster continues.

Hayes then asked Barker to explain what cult activity he was supposed to be involved in.

Barker allegedly replied that participation in pagan religious activities and domination/submission relationships constituted a “danger to society.”

Hayes would pose “an extreme risk” of recruiting passengers into his cult if he were granted a chauffeur’s permit, Barker allegedly added.

“That Mr Hayes suffered an adverse impact as a result of the respondents’ actions is, on the facts alleged, clear, as he was denied a chauffeur’s permit and lost the opportunity to work,” Lyster finds in her preliminary decision.

But does it count as discrimination under the BC Human Rights Code?

The code currently prohibits discrimination on the basis of sexual orientation based on one’s gay, lesbian or bisexual identity. Now the tribunal must determine if BDSM should also be considered a protected form of sexual orientation.

Barker and the VPD say sexual orientation does not and should not include BDSM.

“We submit that sexual orientation is wholly concerned with gender,” Lyster quotes from the VPD’s submissions in her decision. “Sexual orientation is separate and distinct from preferences or behaviours while engaging in sex. The Legislature has not gone so far as to prohibit discrimination on the basis of preferences or behaviour.”

Lyster dismisses the VPD’s position as “inarguable.”

“The ground of sexual orientation is not exclusively status or identity based,” she says, “but also protects against discrimination on the basis of behaviours engaged in as a result of a person’s orientation. If it were otherwise, the prohibition on discrimination on the basis of sexual orientation would offer scant protection indeed.

“Such an interpretation would prohibit a person being fired for being gay, while doing nothing to prohibit a gay man being fired for having sex with his male partner,” Lyster explains.

A parallel can be drawn here between behaviours within a sexual orientation and behaviours within a religious context, she continues.

“Prohibitions on discrimination on the basis of religion protect not only against discrimination on the basis that a person is a member of a given religion or holds certain beliefs. They also protect a person’s right to engage in practices related to those beliefs, without fear of discrimination.”

The language of the code was never meant to be frozen in time, Lyster continues, suggesting that definitions such as the one for sexual orientation should change with changing social conditions and evolving conceptions of human rights.

“I consider it especially appropriate to take a liberal and purposive approach,” she says. “To take a more restrictive approach would have the effect of denying those complainants whose complaints may push at the borders of the Code all access to the tribunal and any opportunity to prove their case.

“It would also have the effect of freezing the interpretation of the Code, thereby stopping the dynamic process of the interpretation of human rights norms in its tracks.”

Lyster quotes Supreme Court of Canada Justice John Sopinka in ranking human rights legislation “amongst the most pre-eminent category of legislation.”

Says Sopinka: “One of the reasons such legislation has been so described is that it is often the final refuge of the disadvantaged and the disenfranchised. As the last protection of the most vulnerable members of society, exceptions to such legislation should be narrowly construed.”

Lyster points to a recent BC Provincial Court ruling, which accepted expert evidence “that consensual BDSM is part of normal and acceptable adult sexual behaviour.”

The 2004 R v Price decision is helpful, she says, to understand BDSM. That decision held that a number of videos depicting BDSM activities did not offend community standards and thus were not obscene.

Lyster urges Hayes to present expert evidence at his upcoming hearing as well. “Expert evidence would also be of substantial assistance to the Tribunal in understanding matters such as: the nature of the [BDSM] behaviours, practices and preferences in issue; whether persons who engage in such behaviours have, like homosexuals, historically been subjected to disadvantage, stereotyping and discrimination; and whether those who are drawn to such activities, like homosexuals, share ‘a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs.'”

“The issues about whether other sexual practices can fall under sexual orientation is an interesting one,” Barriere says. “The boundaries are malleable and flexible.”

At some point, however, the tribunal will have to draw a hard line at non-consensual sex acts, he notes.

It comes down to consent, Barriere concludes.

Hayes may also decide to argue that his BDSM practices are inextricably linked to his pagan spiritual practices-and should therefore be protected by the religious freedom portions of BC’s Human Rights Code, as well.

A date has not yet been set for Hayes’ hearing to resume.