Women’s right to be “in various states of undress” with one another in a semi-public space was affirmed in a Toronto court room last week.
They’re also entitled to exclude men from their space while welcoming transsexual and transgendered people.
That’s the gist of the ruling which dismissed provincial liquor charges laid against women’s bathhouse organizers in September 2000.
Ontario court judge Peter Hryn, in throwing out all the evidence collected by the police, found that it was a “flagrant” breach of charter rights for five male cops to burst in and look around the Pussy Palace women’s bathhouse event. Especially since two undercover female cops were already at the scene and could have collected evidence.
Judge Hryn’s bit of law was not innovative, given the extensive laws, policies and guidelines regulating male officials searching women’s bodies.
But two things about Hryn’s decision were interesting. First, he ruled that cops’ casual looking at the semi-nude bodies of customers who’d voluntarily disrobed was equal to a strip search.
This bodes well for the issue of policing bathhouses generally. Another judge might have thought that a strip search in a police cell is nothing like cops gawking at queer bodies at the baths.
Secondly, Hryn did not play the usual legal trick of separating innocent victims of police powers from bad girls. Other courts have specified that only women with no lust in their hearts have the right to go topless in public, and have construed nudity in a sexual context as posing a “risk of harm” to male minds, or women’s own safety. This judge used the language of indecency against the police, saying that the search “went against common decency” and “would shock the public.”
So, the sexually transgressive women of the Pussy Palace were turned into bearers not only of constitutional rights but also of the moral value of decency. And the male cops were portrayed as insensitive, thoughtless, and – worst of all, for a judge – as putting “the administration of justice into disrepute.”
During the trial, cops had tried to use the presence of transsexual and transgendered people at the event to argue that, if persons designated male at birth were welcomed into the bathhouse, how could the organizers complain if male officers were sent on a liquor inspection?
Other prohibitions of cross-gender searches have been based on a Victorian notion that women, a biologically-fixed group characterized by an inborn prudery, should not be exposed to the gaze of anyone with male genitals.
By contrast, Judge Hryn’s decision, while not specifically affirming that transgendered people can define their own gender, agreed that by naming “women and transgendered people” in the advertising, the bathhouse committee was excluding men. And he affirmed their right to do so. Trans activists will want to look at the verdict closely for future legal cases, then.
Also, owners and managers of baths and bars that cater to men, while not directly affected by most of the ruling, should be able to draw on some of it.
For example, the judge reiterated that the people whose names appear on a licence need not be personally harassed by the officers for there to be abuse of process, since the licencees are “not merely patrons” but “hosts.” Not just the defendants, but “third parties” – in this case the women attending the bathhouse – also enjoy a “reasonable expectation of privacy.”
One good judgment, however, does not make up for a year and a half of aggravation and harassment.
Dragging people through the courts – particularly in the case of liquor infractions, which are almost always not taken to court but referred to the Ontario Alcohol And Gaming Commission for routine administrative measures – is a punishment unto itself.
That the cops (and the Crown, which did not drop the case) were able to inflict this punishment not only on the women named, but on all the women who helped to run the events and participated in them tells us that even when we get a “decent” judge, justice still eludes us.
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