Let’s get retarde…it started: discussions about disability and language

Have you used ever the words ‘retarded’, ‘special needs’, ‘special’, or ‘slow learner’ to mean stupid or weird? I have. The words’ wrongness makes them kind of fun to say – you feel ironic and a bit subversive. But you’d be less comfortable using these words in a context where they might be overheard by an intellectually disabled person or one of their family members. Why do you have to come face-to-face with people before you start thinking about their feelings? It wasn’t until I started having gay friends that the fun of using ‘gay’ as a pejorative term wore off. Sad really, that empathy can only travel such short distances, that you need to come face-to-face with people before you start thinking about their feelings.

Debates around ‘disablist’ language erupted recently when writer and satirist Ben Pobjie tweeted during a rugby match, ‘That was one of the weirdest, most learning-disabled tries I’ve ever seen’ (for the sport-challenged, a ‘try’ is a type of rugby move). This prompted writer and disability advocate Stella Young to write a post on ABC’s Ramp Up criticising his use of the term ‘learning disabled,’ arguing that it hurt just as just as much as the less-PC term ‘retarded.’ Pobjie’s surprisingly vitriolic reaction was to damn the piece and its author as ‘a moronic blog post about a tweet that the idiot author didn’t even understand or ask me about.’

A few days later, Geoff Lemon, in an otherwise compelling blog post about the carbon tax and the first world entitlement mentality, compared the carbon tax debate to ‘a dozen retards trying to fuck a doorknob’ (this was changed ‘a dozen drunken idiots trying to root a doorknob’ when republished by ABC’s The Drum). Responding to comments on his blog challenging his use of retard in this context he argued, ‘In my day-to-day understanding of the word, and in my usage of it here, it doesn’t refer to the disabled … while some [readers] have been uncomfortable, the vast majority … have understood my usage. Over 70,000 people have read this now, and about 20 have complained, while at least the same number have singled out that line for particular praise. I’m ok with that split.’

But when you’re talking about the hurtful effect of your words on a disadvantaged minority group, the argument that not many people have complained, and that others have found a line clever, doesn’t really wash. Human rights, including the right not to be discriminated against, are designed to be upheld regardless of majority views. Anyway, 20 complaints in this context is rather a lot when you consider that not everyone who’s offended will make a complaint.

And whether or not the writer intended to refer to the disabled in this context, it’s foreseeable that the term would be interpreted this way amongst some readers, particularly as the imagery seems to refer specifically to persons with intellectual disabilities. A reader who has a child with an intellectual disability, a child who has experienced ongoing discrimination including being labeled as a ‘retard,’ might be able to separate their child’s hurtful experiences from the use of the word in this context, but it’s unlikely.

Even apart from any offence taken by readers due to their personal associations with those with disabilities, I’d argue that using the term retard in this way is harmful in itself. Retard, if taken in its strictest sense, isn’t a bad word– it means slow to learn – and yes, many people with intellectual disabilities do learn slower than other people. But when used as an insult, it reinforces the idea that people with intellectual disabilities are dumb, abnormal, and on the outer.

Yes, it is just a word, but language as the basis for our thoughts and attitudes means that it is worth paying attention to. This is why in 2010, the US Senate passed a law called Rosa’s law, which removes terms such as ‘mental retardation’ and ‘mentally retarded’ from federal education, health, and labor laws.

Of course, many words in our language have a discriminatory origin, and there’s a spectrum of acceptable usage. We still say something’s ‘lame’ and talk about ‘crippling’ anxiety and something being ‘dumb’. We describe people as ‘crazy’, ‘mad’, even ‘schizo’, a term which has also caused controversy. It’s arguable that the usage of many, but not all, of these words has moved on from its original context. But as demonstrated by campaigns like The R Word, a movement which has focused on campaigning against the use of the word in popular culture and public discourse, the venom hasn’t leached yet out of terms like ‘retard’ or its equally negative synonyms yet. It was for this reason that the Black Eyed Peas recorded a cleaner version of ‘Let’s Get Retarded’, changing it to ‘Let’s Get it Started’, and columnist Dan Savage renounced use of the term a few years ago.

As a comedian or satirist, someone’s always going to be offended by what you say, and if you’re constantly self-censoring, you’ll lose that vital spark that gives your words colour and life. So attempting avoiding offence to everyone and all groups is clearly nonsensical. But when you risk causing hurt to, or reinforcing prejudice against, a fairly marginalised group who aren’t necessarily able to stand up for themselves, it’s worth considering whether you really need to use these potentially hurtful words. And I just can’t think of an instance where it’s worth it.

Cross-posted at WhyDev.

Law and justice, Baillieu style

Robert Clarke, Victoria’s Attorney General, on homosexuality back in 95: ‘I believe homosexual practices form a destructive way of life, destructive to the individual and destructive also to other individuals who are brought into that way of life.’ Wonder if he maintains the same view today? I think of the 90s as a slightly more intolerant time for gays and lesbians, but maybe that’s because I was at a country high school then, which may have been an inherently intolerant context.

It was Robert Clarke who spearheaded recent changes to Victoria’s equal opportunity laws which removed the ‘inherent requirement’ test for religious schools and organisations seeking to discriminate against employees and job applicants. The laws now give religious schools and orgs almost complete freedom to discriminate against employees (even maths teachers, art teachers, cleaners, or gardeners who really don’t have any religious role) who are of a different faith, or gay and lesbian, pregnant and unmarried, single parents, divorced.

It’s customary for the Liberals and haters of equal opportunity laws to accuse anti-discrimination advocates of ‘social engineering,’ a term so nebulous as to be meaningless. But if you take social engineering to mean constructing society they way you want it, isn’t privileging religious sensitivities over diversity just another form of that?

There was a targeted campaign against the laws, and a protest on the steps of parliament, but they involved a relatively small amount of people. In general, there wasn’t a huge community backlash against the laws – most people didn’t know about them, I don’t think, or perhaps they thought it wouldn’t affect them. Victorian Labor arced up about it, which rightly they should have, given that the progressive reforms to equal opportunity laws in 2010 were their baby, and the product of an extensive consultation process. In contrast, the Liberals’ changes seemed to involve little consultation at all, except with right-wing religious groups like the Australian Christian Lobby.

Actually, a strange thing happened when the Liberals first tried to introduce the equal opportunity bill in the state lower house. One of their ministers, Mary Wooldridge, missed the vote, and then the speaker, following parliamentary convention, voted the bill down (the Liberals only hold the lower house 45:43). Wooldridge claimed that her absence was an accident and an embarrassment, but it seemed a little suspicious – she’s one of the more socially progressive of Liberal MPs and the bell they ring for a vote at Parliament is ear-splittingly shrill – but maybe she was stuck in the lift or something.

Defying parliamentary convention, the Liberals used their numbers the following sitting week to push the bill through the lower house, and Woolridge voted for it too. The Liberals also control the upper house, and after five hours of debate on June 15, the vote passed through there too. So that’s what you get when you vote for a government comprised of the likes of Clarke, Geoff Shaw (acknowledges God as the traditional owner of the land and compares being gay to drink driving), and the goblin-like Bernie Finn (who in the equal opportunity bill debate, talks about having friends that are gay and going out for drinks with them, and working with members of the media who are gay: ‘that did not disturb me’ – as if he deserves a pat on the back or something).

I’ve also been following the debate abpit the so-called ‘swear jar’, the $240 fines for indecent language, which has fired up the bunch of people to the extent that they have organised a fuckwalk next weekend. Swearing has actually been illegal for years, under the anachronistic Summary Offences Act, which incidentally, also makes it a crime to be drunk in public, sing obscene ballads, fly kites annoyingly and pursue homing pigeons (hey, wouldn’t it be fun to do all of these things at the same time?).

While the swear laws have been the focus of media attention, which is unsurprising given that they’re a colourful, easy-to-tell story which clearly relates to freedom of expression, it’s worth noting that the Baillieu government’s laws actually apply to a whole swag of offences. What they do with these particular offences is that they make them punishable by police (through fines), instead of the courts.

These infringement offences were introduced by Brumby as part of a trial in mid-2008. The following offences which formed part of the trial were made permanent by Baillieu in the latest bill: offensive behaviour, indecent language, range of liquor-related offences, unauthorised consumption of liquor on a party bus. The trials for wilful damage of up to $500,  and shop theft of goods valued at up to $600 were extended.

When Brumby instigated the trial, an evaluation was set up to determine whether the infringements were actually working to unclog the courts and relieve resource pressure on police, as well as to monitor the impact on disadvantaged groups such as young people, mentally ill, indigenous people, and the homeless. Because these groups are more likely to be inhabiting public space and may have other behaviour issues closely linked to disadvantage, they are more vulnerable to getting the fines for public order offences, and also less likely to be able to tackle the arcane bureaucratic process of challenging them.

If they don’t or can’t pay the fine, they’ll have their matter heard in court and receive a criminal record for the offence. When an enforcement order is issued for the unpaid debt, the amount increases. And people who can’t afford legal representation may struggle to get free assistance to challenge the fine, given the pressure on already besieged community legal centres.

Here’s Robert Clarke explaining and justifying the laws, although he’s not expansive, so don’t expect to be enlightened. According to Clarke, a report evaluating the trial laws showed that they reduced pressure on the courts, freed up police resources,  and ‘enabled [police] to more readily issue penalties against those offenders who deserve them.’ T The latter seems like a fairly insubstantive outcome in itself. Clarke doesn’t say anything about the impact on vulnerable groups, and the government has refused to make the evaluation report public.  This is a goverment elected on promises of transparency and accountability.

Community legal groups such as PILCH and Federation of Community Legal Centres were on the ‘steering committee’ for the evaluation, but even they weren’t shown the final evaluation. It is telling that these groups, who deal with some of the most disadvantaged members of the community, expressed serious concerns about the infringement bill. Even the usually cautious Victorian Equal Opportunity and Human Rights Commission outlined possible discriminatory impacts.

With infringement offences, police, rather than courts, get to mete out punishment.  Given what we’ve seen of the police force’s ability to deal with complex behaviour, including that of the mentally ill, the logic of giving them discretion to hand out fines for what are essentially very subjective offences (come on, what’s offensive language or behaviour these days? who decides?) seems questionable.

Other Baillieu government initiatives include mandatory jail sentences for teenagers, more jails, and semi-automatic toting security guards on trains. Will this law and order stuff make us safer? Is Victoria unsafe? I don’t feel unsafe, most of the time. Why is that? Is it because I’m a privileged middle-class inner-suburb citizen? Is it less safe in the suburbs?

Incidentally, public drunkenness, another public order offence, is still a crime under the Summary Offences Act (Victoria’s that hasn’t de-criminalised it), allowing a person to be arrested and put in a cell overnight, and the fine is about $950 dollars. I don’t know what the figures are now, but in 2007 The Age reported that 260 people a week were arrested for it.

Police might argue that public drunkenness laws are a means for them to get people off the streets, but it’s a crude way of administering justice if people haven’t actually committed a proper offence. It’s likely to exacerbate and heighten a violent situation, and completely fails to deal with the root of the problem, which is substantially about alcohol abuse,  a public health issue.

Progressive former Attorney General Rob Hulls had promised to review the public drunkenness laws, but then in 2010 Brumby said he wasn’t going to do it. I think this was partly about pressure from the law-and-order lobby, but it’s also relevant that the parliamentary committee said public drunkenness should only be decriminalised if sufficient sobering-up centres could be established. This would, of course, cost money.

Again, community legal centres are against the laws because like other public order offences, they are very susceptible to being used against groups that are already disadvantaged. Public drunkenness is a ridiculous offence – I mean,  I commit it almost every second weekend, although of course, for obvious reasons, I’d never be arrested.

With these public order offences, allowing police to ‘efficiently’ deal with problems by removing people from the streets, thus maintaining a semblance of order and control, and freeing up resources, has been valued more highly than a fair process and dealing with the source of problems.

Much, although not all, of this public order stuff is about late-night violence in the CBD and on public transport. What causes it? Alcohol, obviously, and law and order policies aren’t going to address that problem. There’s also the lack of public transport – people get stuck in the city and they can’t get home at night, so they deteriorate thier own situation – and a lack of people using transport – the futility of doing so, because of infrequent trains and poor connections, means that suburban train stations are scarily deserted at night. Perhaps better night-time transport would go some of the way to addressing the problem of night-time violence.

But there’s some other reason, too, for the violence – I mean, Japanese people might get blind drunk when they go out on the weekends, but from what I hear they’re more likely to fall in a gutter than start a fight.  I could be wrong, but I think there’s something cultural/psychological behind male violence,  a repressed anger and frustration that doesn’t have an outlet.

And let’s not forget about crime’s other heartland – the home (the Age gets a bit ‘bigger picture’ for once).

No divine right to discriminate

If you really want to test your faith in politics, try reading Victorian MP Geoff Stewart’s biblically orientated maiden speech.  Shaw acknowledges the original owner of the land – not the Wurundjeri people, but ‘God, the Creator, the God of Abraham, Isaac and Jacob, the God of the Bible.’ ‘What a blessing,’ he declares, ‘that the Creator has given us stewardship of this place, and what a responsibility we have to govern here in Victoria and govern well.’ Presumably, Shaw means that humans have divine stewardship of the earth, rather than the government having God-given stewardship of the state of Victoria. But his speech is a little confusing,  ‘I am glad to be here as part of a new coalition government that knows the difference between righteousness and self-righteousness… we are on the common sense express, where we will carefully assess our spending decisions, knowing we are stewards of Victorian taxpayers’ money.’ So the new government, too, is a steward, and there is a righteous quality to their economic restraint. 

On Sunday 7 May 2011, The Age reported that Shaw, the member for Frankston, had described homosexuality as a sin tantamount to molesting a child, dangerous driving or murder. Shaw made these comments in response to an email from articulate, cluey 20 year old uni student Jakob Quilligan, who had written to his local member to protest against the Baillieu government’s new equal opportunity bill, which rolls back some of the Brumby government’s substantial anti-discrimination law reforms. The next day Shaw emailed Quilligan offering a half-apology [full email here]. He said that he ‘apologised and regretted any offence caused,’ but also, rather disingenuously, claimed that ‘the [Age] article does not reflect my views,’ even though The Age had quoted his email verbatim, and made the whole email exchange available online. 

It was not until six days later, on Friday 12 May, when questioned about the issue in parliamentary budget estimates hearings, that Premier Ted Baillieu expressed disapproval of Shaw’s comments, reaffirming his support for the gay community and admitting ‘(we have to be mindful) that language and commentary can have an impact and people do sometimes get it wrong.’ While better late than never, this equivocal statement implies Shaw’s comments were an excusable ‘mistake,’ and understates the damaging impact of the comments amongst a gay and lesbian community which suffers from disproportionately high rates of depression and self-harm. By failing to speak out early and strongly against Shaw’s comments, Baillieu missed the opportunity to reinforce one of his positive initiatives in the area – a budget allocation of $4 million for suicide prevention amongst young gay and lesbian people.

Baillieu is thought of as socially progressive– while opposed to gay marriage , he supported the Brumby’s abortion law reforms and the laws allowing same-sex couples to register their relationship. Leslie Cannold even urged Victorians to vote for him in the 2010 state election on the basis that preserving the influence of small-l liberalism in the Liberal party was essential to create a political space where socially progressive policy could be implemented. However, the new equal opportunity bill, introduced into parliament on 3 May 2011, demonstrates that the Baillieu government is still strongly influenced by conservative religious groups.

The bill allows religious schools and organisations to discriminate against employees on the basis of religion, sexuality, sex, marital status, parental status, gender identity or lawful sexual activity (this might cover extra-marital affairs or prostitution) where it is necessary to ‘conform with the doctrines, beliefs, or principles of the religion’, or to ‘avoid injury to the religious sensitivities of adherents.’ It removes the Victorian Equal Opportunity and Human Rights Commission’s power to conduct public enquiries into issues of systemic discrimination and watering down its investigation powers. There are also a number of other changes warranting detailed scrutiny, including changes to the Commission’s governance arrangements, exceptions relating to youth wages, political clubs and single-sex sporting competitions, and amendments to the obligation to make reasonable adjustments for people with disabilities.

The bill reverses some of the changes made by the Brumby government in March 2010, when after a long process of review, Attorney General and social justice reformer Rob Hulls, introduced the Equal Opportunity Bill. The Commission was given the powers to conduct public enquiries and initiate investigations without first requiring an individual complaint. The law and complaints process were simplified, allowing for more flexible, speedy, dispute resolution. There were a number of other significant changes, including removal of the blanket exception for businesses with five employees or fewer. 

In what was reported as a compromise with right-wing religious groups, the Brumby government’s bill did retain the exceptions for religious schools and organisations. This meant, for example, that a religious school could still rely on the exceptions to expel a student who admitted that he was gay, or that a furniture shop run by a religious group could refuse to serve a gay couple. Whether or not these examples legally fit within the exception (i.e. whether these actions would be considered necessary to conform with religious beliefs or avoid offence to religious sensitivities) is almost irrelevant given that the very existence of the exceptions is sufficient to deter people from challenging discriminatory decisions. 

The Brumby government removed attributes like disability and age from the scope of the religious exceptions. In practice, this was an immaterial change, given that the attributes of religion, sex, sexuality, marital status, parental status, gender identity and lawful sexual activity, which were retained in the exceptions, represent the most likely bases for religiously based discrimination. One significant change the Brumby government did make to the exceptions was to limit them in relation to employment. Under the 2010 bill, religious schools and bodies could only discriminate against employees or job applicants where conformity with the religious doctrines, beliefs, or principles was an ‘inherent requirement’ of the particular position, and where, because of an attribute covered by the exceptions (for example sexuality, unmarried status, or different faith), the employee couldn’t meet that requirement. The Australian Christian Lobby had lobbied against  such a change.

The Coalition opposed the imposition of this ‘inherent requirement’ test and the widening of the Commission’s powers. Parliamentarians referred specifically to the concerns of religious groups including Australian Christian Lobby, Family Voice Australia, and the Presbyterian Church of Victoria. In April 2010, Baillieu met with the Australian Christian Lobby at parliament and confirmed, corresponding with their demands, that if elected, the government would restore the ability of religious schools and organisations to discriminate against employees and job applicants and remove the Victorian Equal Opportunity and Human Rights Commission’s powers to investigate discrimination.  He reiterated this promise to the Australian Christian Lobby and Family Voice  during the 2010 state election campaign.

The new bill implements this campaign promise. The Commission’s capacity to tackle systemic issues of discrimination – issues such as discrimination against indigenous people in accommodation, or discrimination against Indian people in the workforce – has been severely diminished. The reinstatement of employment exceptions for religious schools potentially means that a woman working at a religious school could be legally denied a promotion because she was pregnant. An applicant for a job as cleaner or gardener at a religious school could be asked to sign a declaration of faith, and turned away if they refused. Employees at church-run organisations could be denied career opportunities because they admit to being in a same-sex or de-facto relationship. This is despite the fact that these schools, and many religious-based organisations, receive public money.

One provision in Kennett’s 1995 Act was left untouched by both the Brumby and Baillieu government. It allows ‘discrimination by a person against another person on the basis of that person’s religion, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity if the discrimination is reasonably necessary for the first person to comply with the doctrines, beliefs or principles of their religion.’ This incredibly broad provision appears to offer a free-standing invitation to discriminate. 

Discrimination shouldn’t have a place anywhere, but especially not in publicly funded institutions. Geoff Shaw’s comments and the discriminatory exceptions in the Equal Opportunity Act reflect a system in which highly mobilised, well-resourced religious groups espousing a conservative, exclusionary view of Christianity, one which is not shared by the majority of Australians, exercise disproportionate influence over law making and policy. In this system, religious sensitivities are frequently given priority over human rights, valuing diversity, and treating people with respect and dignity. The circular story of the equal opportunity exceptions illustrates that without a strong community campaign, this is unlikely to change.

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