Dress Codes and Other Sorry Excuses for Policing Identity

@HuffPostGay

Last month, the fifth grade parent group at my daughter's school had the first of many conversations about how to mark our children's transition to junior high. Unfortunately, the issue we discussed -- whether the kids would be wearing caps and gowns at the end-of-year celebration -- sidelined a much more important issue: what the kids would be wearing under these gowns. (My daughter's school had sent out a notice to parents that boys must wear one thing and girls another.)

For many children, a gendered dress code may be just another imposition by adults, and to some it may seem small compared with decisions related to bedtime, computer usage, and the precise meaning of the phrase "clean up your room." But to others it is a big deal. Indeed, clothing is such an essential expression of who we are that international law recognizes it as a human right to wear what we want, barring reasonable restrictions for the purposes of safety or to protect the rights of others.

And it is precisely because clothing can project our identity so concisely that the clothing associated with particularly stigmatized populations is vigorously policed around the world. For example, several European countries and some North American jurisdictions place restrictions on head coverings. These restrictions are closely linked to discomfort with Islam and are based on the negative and erroneous stereotype that Muslim women are "oppressed" and "submissive." In fact, even where headscarves are not explicitly prohibited by law, women can be fired for wearing them, and many are discriminated against even before landing a job.

Likewise, many jurisdictions enforce strictly gendered dress codes in public by eitherrequiring specific attire or criminalizing cross dressing. These restrictions are tied to stereotypes about sexuality and sex. Cross dressing is conflated with transgenderism, which again is conflated with an insatiable, predatory, or "perverted" sex drive. A good example of this is the comment reportedly made by a lawyer who was arguing against a 6-year-old trans girl's right to use the girl's bathroom at her school. "How do you know if someone is really thinking this way or not?" the lawyer is quoted as saying. "How do you know if someone just wants to go in the restroom and be a peeping Tom?"

The suspicion directed at trans people, cross dressers, or anyone whose gender expression is not traditional finds its most extreme expression in violent crimes committed against individuals who visibly do not conform to gender norms. But it is fueled by the little injustices in our daily lives. Being forced to wear clothing associated with an identity that we do not share or cannot align with is a powerful reminder that our true sense of self must be hidden to be safe.

Moreover, dress codes facilitate abuse, first by enforcing the notion that there is a "right" and a "wrong" way to dress, and that transgressers can and should be punished, and secondly by normalizing the punishment. Where we face sanctions and exclusion for being who we are (such as being thrown out of a public bathroom, being expelled from school, or being fired, for example), it is hard to avoid the basic feeling of being somehow "wrong." Over time, this feeling of "wrongness" can contribute to depression and the conviction that violence and discrimination is inevitable.

But it is not.

There is no legitimate reason for gendered dress codes, or for dress codes that enforce or prohibit a specific faith. The European Court of Human Rights has repeatedly noted that gender identity, including the right to dress according to who we feel we are, is one of the most basic essentials of self-determination. In the Americas, this sentiment finds legal expression in the adoption of several new laws that seek to protect everyone against discrimination, regardless of their gender identity.

We, the adults, need these laws because many of us have internalized gendered dress codes, which we have to unlearn. Not so for our children: They learn dress codes from us. So I, for one, will be telling my daughter that she can wear whatever keeps her warm, comfortable, and happy under her graduation gown (if she chooses to wear one).

Video Restrictions in India and the Growing Effort by Governments to Restrict Our Rights to Freedom of Information

@RHRealityCheck

This week, several video-sharing websites were blocked by the two main internet service providers in India in response to a court order related to movie piracy. The company that had pushed for the court intervention said it hadn’t intended such a blanket block. The internet service providers said they merely did as told. The internet activist group Anonymous said it would shut down the website of the Indian Supreme Court in retaliation.

Meanwhile, over 3 million individuals had their right to exchange information and ideas summarily suspended.

India is not the only modern democracy where government institutions are pushing (and are being pushed) to facilitate blanket restrictions on internet use and flow of information to the detriment of human rights. In January this year, the US Congress considered bills that would have encouraged internet service providers to pre-emptively block sites that may be used by some individuals to share pirated content, the Stop Online Piracy Act (SOPA) and the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PIPA). And the European Union is currently debating whether to sign onto an international treaty containing similar provisions: the Anti-Counterfeiting Trade Agreement (ACTA).

These developments are worrying. 

From a human rights perspective, blanket restrictions on specific means of communication should always raise red flags. On the most basic level, human rights guarantee the conditions we need to live with dignity. For centuries, philosophers have agreed that this includes the time and space for each and every one of us to develop, express, and share our unique beliefs and thoughts in peace, even if what we believe or think is offensive to others. When human rights were codified into law after the World War II, this notion was captured in very broad protections of the rights to freedom of expression and information.

Human rights law is particularly strict with regard to the limitations a government can legally impose on the exchange of information and opinions. This can only happen for certain specific purposes and only in the least restrictive manner possible. It is hard to imagine a situation where blanket restrictions on the exchange of information would constitute the “least restrictive manner” for the government to fulfil the purpose of the restriction, whatever this might be.

Of course, the purpose of many blanket restrictions on internet sites — including the stated purpose of the blocking of sites in India this week — is the protection of copyright. It is not only reasonable for governments to seek to protect these interests, it is, in fact, their job. Just as we have the right to freedom of expression, we have the right to government protection of our intellectual property. 

What we do not have the right to is the protection of our intellectual or other property at the expense of someone else’s right to freedom of expression. We wouldn’t, for example, want a government to impose a general curfew (violating freedom of movement for everyone) in order to prevent drunk driving, street crime, or other criminal behavior rightly or wrongly associated with the night time.  Yet this is precisely what blanket interventions of internet activity tend to do. Instead of the government imposing fines and blocking specific pirated content after fair and transparent judicial processes, internet service providers are pushed to pre-emptively block entire websites as soon as individual users of these websites are accused of violating copyrights. 

Some governments claim this is the only way to protect copyright where the internet is concerned. And it is certainly true that the more fluid and fast exchange of information that has come with the spread of the internet makes regulation more challenging. 

It is also true, however, that while the means of communication have changed over the years, our need, desire, and — yes — right to communicate freely has not. This is why the United Nations expert body charged with translating general human rights standards into concrete guidelines for implementation issued a statement last year spelling out the specifics of the right to freedom of expression in the age of the internet. This document is clear: generic bans on the operation of certain sites and systems are not allowed, whether these bans are imposed directly or through giving internet service providers strong incentives to take sites down. 

Sure, it is easier to do what the Indian internet service providers did this week, and what the supporters of the Anti-Counterfeiting Trade Agreement want to facilitate as a global standard: just block everyone from using sites that may or may not peddle pirated content. However, governments are not obliged to do that which is easier. Governments are obliged to protect our human rights. And that means targeting wrongdoers rather than facilitating or indeed imposing censorship in a blanket manner.