Sunday, March 04, 2007

Autism advocacy at the Canadian Human Rights Tribunal

My Canadian Human Rights Tribunal case resumes hearings tomorrow. We previously (in 2006) had eight hearing days. Ten more are now scheduled. This is the first autism-related case to be referred for a hearing to the CHRT.

The referring body is the Canadian Human Rights Commission, which investigates complaints under the Canadian Human Rights Act. I had a previous case at the CHRC involving the same Respondent (my employer, Canada Post), which was rapidly settled in my favour. But the current case has proceeded extremely slowly and arduously. Before it was finally referred to the CHRT (three years after the complaint was signed), my current case had involved two investigations (this is unusual), as well as two formal written apologies to me from the CHRC, one from the Chief Commissioner's Office. I frequently encountered autism advocacy views in those I had to deal with at the CHRC. This twice had the effect of killing my case, and twice I had to make formal within-CHRC complaints, which were found to be justified.

At the CHRT, the CHRC is also acting as a party in my case, meaning that these hearings involve three parties--Canada Post, my employer; the CHRC; and me. Are you confused yet? You should be.

At the CHRT, the CHRC is supposed to represent the "public interest". This raises interesting questions in the area of autism. In my case, the CHRC has largely been adversarial. This is not surprising, given that the "public interest" in autism is in Canada defined by autism advocates. According to the jurisprudence resulting from autism advocacy, autistics are not even human (unqualified for "membership in the human community"), and therefore do not have human rights, unless we have undergone unlimited ABA/IBI starting very early in life. As autism advocates argued successfully in both the Wynberg and Auton trials, only through ABA/IBI can autistics become human, and acquire the rights guaranteed for all non-autistic Canadians. An issue at the CHRT is whether ABA-deprived autistics are human.

I am representing myself at the CHRT. I am a truly appalling lawyer, when it comes to saying things in hearings. I can write an argument if I have a lot of examples to work with. In this case, I produced a mediation brief and a statement of particulars without really knowing what either was or what they should consist of. But I am at a total loss when it comes to speaking in a hearing. It doesn't help that I've been treated like a spectator rather than a party. It is extremely difficult just to be a witness. I am the only witness on my side of the case. I do not know how to call witnesses at the CHRT, which has idiosyncratic and arbitrary (made up as you go along) rules that diverge from more standard forms of litigation, and could not find out from anyone.

Human rights lawyers in Canada, including those few with experience at the CHRC and CHRT in disability issues, have supported or represented autism advocates in ABA-related litigation. They are not interested in helping an autistic to argue that ABA-deprived autistics are human, and contribute to society because we're autistic, not in spite of this.

Many issues in this case have been decided already, and I am not sure if I should continue. I am quite sure that the decision in this case will be harmful to autistics. Its only advantage will be that it will reflect "autism reality", that is, the overwhelming success of autism advocates in disseminating false and pejorative information about autistics, in spreading fear and dread of autistic people (this being a central issue in my case), and in ensuring that autistics are unquestioningly regarded as undeserving of recognized standards of science and ethics (including professional ethics).

One of many issues involved is accommodation. I asked to use a simple accommodation I had used previously at work. In spite of this accommodation costing Canada Post nothing (in time, trouble, or money), and in spite of it having been granted without question previously, it was this time refused.

This should be an easy issue. This was not an accommodation that could cause Canada Post "undue hardship"--the legal criterion that allows an employer or service provider to refuse accommodation. However, I asked to be accommodated in the CHRT hearings in similarly easy ways, and this has been refused by the CHRT member hearing my case. This member (the CHRT equivalent of a judge) characterized my requests as unreasonable. An employer can't be ordered to behave better than the CHRT. So a de facto decision re accommodation has been made, and that decision is that even easy, cost-free accommodations for autistics can and should be denied as being unreasonable.

The absence of the simple accommodations I asked for has caused chaos in the hearings. For example, I'm not allowed to communicate in text. So when I was unable to speak, I had to leave the room. Any attempt to make the hearings possible to endure has been, and no doubt will continue to be, judged as my being unreasonable or rude. I do not expect to be able to finish the remaining 10 days of hearings in this situation, but I will at least show up.

The de facto decision re accommodation, and my own extreme incompetence in this arena, are far from the only problems which are likely to result in a harmful decision. Others include the CHRC investigation process being a CHRT-protected haven for human rights violations. I don't have the time (or the brains, right now) to fully explain this here, but this fact alone (a respondent is free to grossly violate the rights of a complainant, in ways that can put the complainant in danger, with impunity so long as this is within a CHRC investigation) means I will never make a CHRC complaint again.

But the major problem is that the CHRT condones and embraces autism advocacy.

The CHRT has a Code of Conduct for its members (judges), which states,

it must be recognized that members of the Tribunal have been appointed because of their experience, expertise and interest in, and sensitivity to, human rights.

This requirment--for expertise in and sensitivity to human rights--is stated in the law itself (Canadian Human Rights Act). One of the CHRT's current members (judges) is Michel Doucet, who is from New Brunswick. Mr Doucet was first appointed to the CHRT (by the federal cabinet) in 2002.

In 2001, Mr Doucet made statments in the media, supporting the Auton trial decision. He was commissioned by Autism Society New Brunswick to write a report about this decision and the rights of autistics, among other things. This report appears to have been funded at least in part by the now-defunct Canada Court Challenges program, and is (or was) available free from this government body. I first found out about this report in 2002, when my then-MP received a copy, and copied me with a letter she wrote in consequence to the health minister. I knew the name of the report's author, but I did not, until this past summer, connect the Michel Doucet who wrote this widely-distributed report with the Michel Doucet who is a current CHRT member.

You can find Mr Doucet's report here.

It is prime autism advocacy, uncritically quoting and embellishing on the Auton trial decision, equating autism with cancer and AIDS, and claiming, as was claimed in Auton, that autistics are doomed and just naturally belong in institutions unless we receive Lovaas ABA from an early age. Mr Doucet's embellishments include giving the behaviour analyst Glen Davies (PhD, not MD) status as a "medical expert". This is in the context of Dr Davies' statement that it is wrong to provide autistics with support when a treatment which promises to "recover" or "cure" half of us is available. Mr Doucet repeats this statement twice.

Mr Doucet's rationale is seen in his distortion of the the Supreme Court of Canada decision in the Eldridge case. Here is what Eldridge says:

Persons with disabilities have too often been excluded from the labour force, denied access to opportunities for social interaction and advancement, subjected to invidious stereotyping and relegated to institutions [...] This historical disadvantage has to a great extent been shaped and perpetuated by the notion that disability is an abnormality or flaw. As a result, disabled persons have not generally been afforded the “equal concern, respect and consideration” that s. 15(1) of the Charter demands. Instead, they have been subjected to paternalistic attitudes of pity and charity, and their entrance into the social mainstream has been conditional upon their emulation of ablebodied norms [...]

Here is Mr Doucet's distortion, complete with the kind of offensive language ("afflicted" etc.) which is featured in his report:

The history of people afflicted with autism in Canada is largely one of exclusion, marginalization and institutionalization. They have been denied access to opportunities for social interaction and advancement and have been subjected to invidious stereotyping and in more cases than other relegated to institutions. This historical disadvantage has to a great extent been shaped and perpetuated by the notion that autism is not a medical condition and that treatment for autism is not a medically necessary service. As a result people who suffer from autism have not generally been afforded the equal concern, respect and consideration that s. 15(1) demands. Individuals who suffer from autism have been subjected to paternalistic attitudes of pity and charity and that their entrance into the social mainstream has been denied.

In both quotes, I've added emphasis in blue. Mr Doucet argues that autistics are sick, and it is the failure of society to recognize that autism is a disease (just like cancer) and must be gotten rid of via "medical" treatment (that is, Lovaas ABA) that constitutes the denial of the human rights of autistics. His very selective distortions of Eldridge show that he has no problem with the "medical" treatment he promotes having the stated purpose of requiring autistics to "emulate able-bodied norms". In Mr Doucet's report, autistics are not like the disabled people described in Eldridge, who have rights and value and dignity and humanity as disabled people. No, autistics are just sick. We are indeed abnormal and flawed (afflicted and suffering), and only "medical" treatment requiring us to emulate healthy, non-autistic people can save us from our tragic doom. Mr Doucet's views resonate with the entirely negative views of autism and autistic people that Canada Post has embraced and acted on.

Mr Doucet is not hearing my case, but his publicly available work represents what the CHRT considers to be expertise in and sensitivity to the human rights of autistics. It is unreasonable to expect an employer to behave better than the CHRT.

I've found it striking how many people have not been able to see the problem, which would be obvious if the issue weren't autism. Possibly, the problem is that you cannot imagine this happening in any other area. You cannot imagine a lawyer who writes a report full of false and pejorative statements about gay people being appointed to the CHRT, so it becomes very difficult to imagine the consequences were such a member appointed, no matter whether this member heard cases having to do with homosexuality. It is the standards of the CHRT that are displayed when members are appointed and have their appointments renewed, as has Mr Doucet. If the CHRT embraces (as expertise in and sensitivity to human rights) grossly false characterizations of and prejudicial stereotypes about homosexuals--or autistics--there is no way for the CHRT to hold an employer accountable for holding identical or equivalent views--in my case, autism advocacy views--and acting on them.

Canada Post has, after all, done what Mr Doucet and so many in Canada are applauded for doing--including applause from Canada's government--in this era of autism advocacy. They have joined the fight against autism.

[NOTE: The eminent Canadian autism advocate and lawyer, Harold Doherty, has blogged about this case. The information he provides is, predictably, inaccurate and misleading.]