This revised complaint, filed 2013.05.10, alleges that Queers Against Israeli Apartheid (QuAIA) contravenes Pride Toronto’s contractually-specified rules and is thus ineligible to participate in Pride Toronto’s parades and marches.
This complaint asserts nothing regarding:
free speech, except as described below
“politics” and/or how “Pride has always been political”
If and when QuAIA provides counterarguments to the foregoing, the Panel can dismiss them as attempts to change the subject.
The 2012 and 2013 Pride Toronto Terms and Conditions require applicants to “upport the mission, vision and values of Pride Toronto,” as elucidated (2012 version) in a document labelled Appendix A, which opens with the unambiguous statement that “Pride Toronto exists to celebrate the history, courage, diversity and future of Toronto’s communities.”
Pride Toronto’s 2013 Parade terms and conditions (PDF) state that “Pride Week is a celebration of our LGBTTIQQ2SA (lesbian, gay, bisexual, transsexualtransgender, intersex, queer/questioning, spirited and allied) communities” (emphasis added, copy-edited).
Pride Toronto’s letters patent (PDF), certified 1995.11.30, unambiguously state the purpose of Lesbian, Gay, Bisexual, Transsexual and Transgenderal Pride Toronto as
staging in the Municipality of Metropolitan Toronto an annual celebration and informational, educational and cultural festival by and for lesbian, gay, bisexual, transsexual and transgenderal people of their sexual and gender orientations and identities, and their histories, cultures, communities, organizations, relationships, achievements and lives; and such other complementary purposes in furtherance of and not inconsistent with the foregoing objects.
(The Municipality of Metropolitan Toronto is now merely Toronto after the passage of the City of Toronto Act , S.O. 2006, Chapter 11.)
There is no rational connection or nexus between Queers Against Israeli Apartheid and Toronto’s gay communities. QuAIA has nothing at all to do with Toronto; by its very name its concern lies elsewhere. The fact that its principals live in Toronto is irrelevant because the Terms and Conditions require support for Toronto’s gay communities, not place of residence.
A review of the full archive of its blog posts (plain text) shows no discussion of Toronto gay and lesbian affairs except inasmuch as they relate to QuAIA.
A review of the full text of its original Twitter output – RTs excluded as irrelevant; links elided below – shows the following statement of support for “he community,” an example that is marginal at best since it is simply a quote from a news article that is about QuAIA, not any “community.”
QuAIA @quaiaTO 15 Apr 11:
Elle Flanders: “The community has been generous to us, and it’s time for us to be generous in return.” #PrideTO
Virtually the entire Twitter output concerns Israel or Palestine or QuAIA’s own interests and is unrelated to Toronto’s gay and lesbian community. Some statements directly admit QuAIA’s nexus is outside Toronto, e.g.:
QuAIA @quaiaTO 3 Jul 11:
@nspector4 You make a lot of assumptions. We already work with queer groups based all across Israel/Palestine. Try again. #pinkwashing
QuAIA stated openly that it intended to march in the 2010 Pride Parade not because it supports Toronto’s lesbian and gay community, or for any reason listed as prerequisites for that year, but “because we are proud of our politics”:
QuAIA @quaiaTO 13 May 10:
Queers Against Israeli Apartheid will march in #PrideTO 2010 because we are proud of our politics. #canqueer
Pride in one’s politics does not qualify a group to participate in Pride Toronto parades or marches.
In the Who We Are section of its Web site, QuAIA states (links and some unrelated parts elided):
Who We Are
Basis of Unity
Queers Against Israeli Apartheid formed to work in solidarity with queers in Palestine and Palestine-solidarity movements around the world. Today, in response to increasing criticism of its occupation of Palestine, Israel is cultivating an image of itself as an oasis of gay tolerance in the Middle East, a practice that is called pinkwashing. As queers, we recognize that homophobia exists in Israel, Palestine, and across all borders. However, the struggle for sexual rights cannot come at the price of other rights.
Queer Palestinians continue to face the challenge of living under occupation and apartheid, subject to Israeli state violence and control, regardless of liberal laws within Israel that allow gays to serve in the military, or recognize same-sex marriage and adoption for Israeli citizens. QuAIA works to fight homophobia, transphobia and gender oppression wherever they exist. [...]
QuAIA works to:
- mobilize in solidarity with groups and individuals to advance our goals
- engage in a queer analysis of colonialism and anti-colonial struggles
- build dialogue and education within anti-apartheid movements through queer, anti-colonial, anti-racist, and feminist approaches
- foster cultures of radical queer organizing
- build Palestine solidarity in queer communities
A Brief History
At a public forum at Toronto’s Israeli Apartheid Week 2008, queer activists spoke from the audience about the use of gay rights as a propaganda tool to justify Israel’s apartheid policies. They agreed to start a coalition to fight against this appropriation.
In 2008, queer activists formed contingents in the Dyke March and Pride Parade, sending out the messages that queers do not support apartheid wherever it exists.
In 2009, Queers Against Israeli Apartheid held two forums, at the University of Toronto and at Buddies in Bad Times Theatre.....
In 2009 we marched again at Toronto Pride, despite attempts by Zionist organizations to ban us. We assembled in the largest anti-apartheid contingents ever: 180 in the Dyke March and over 200 in the main Pride parade.
We also joined the Coalition Against Israeli Apartheid, which includes other allies such as Labour for Palestine, Faculty for Palestine and Students Against Israeli Apartheid.
Our movement is growing stronger every day, and we won’t stop until Israeli apartheid is dismantled, brick by brick.
QuAIA has no chapters or branches. QuAIA only organizes in Toronto and has no affiliated groups.
Note the discussion of Israel and Palestine and the admission the only thing it does in Toronto is “organize” here, not appear in Pride Toronto–sponsored parades and marches to support the local gay and lesbian community.
QuAIA’s FAQ offers no indication whatsoever of a nexus with Toronto’s gay and lesbian community.
It is uncontested that Sarah Schulman is an ardent supporter of QuAIA. This American academic appeared as a witness for QuAIA in Kushner/B’nai Brith v. QuAIA (2012), in which decision her surname was misspelled. In her book Israel/Palestine and the Queer International (2012:119), Schulman declares “QuAIA is an organization created to support Palestinian queers.”
Gay groups for a certain national cause or issue require qualitatively different scrutiny than groups against a national cause or issue. The only other groups that intended to participate in 2012 parades or marches that included country names in their own names are:
Iranian Queer Organization and Iranian Railroad for Queer Refugees, both of which represent organizations in Toronto that are in support of actual non-hypothetical gay and lesbian refugees from Iran to Canada. These organizations’ unambiguously humanitarian goals are not remotely comparable to QuAIA’s intent and message of mischief, subversion, and dissension.
Thai Society of Ontario, a support organization for Thais with a local nexus.
Pride Toronto holds its annual events for “our” gay and lesbian community local to the City of Toronto, as proven above. Pride Toronto attracts spectators and participants from out of town, but fundamentally it is a local event with a local Toronto nexus. That nexus was thrown into sharp relief when Pride Toronto was awarded host-city status for WorldPride 2014.
As Pride Toronto described in its own WorldPride bid book (PDF):
The Impact of WorldPride in Toronto
In 2014, we will create a global safe space for anyone who is queer, especially those who cannot be themselves at home. No matter where they are from, they will experience in our cosmopolitan city people who look like they do, eat the same food, wear the same clothes and share the same culture. But the difference is that here, in Toronto, they will experience openness, freedom and acceptance. We know that WorldPride 2014 will engage and inspire people around the world....
The bid book actually makes this point twice.
Pride Week, operated by Pride Toronto, is a local event for the Toronto local gay and lesbian community. WorldPride is an international event with an overt international or transnational focus.
I stipulate that observing, bystanding, or otherwise watching a Pride Toronto parade or march is a public activity, one that usually takes place on public sidewalks or roads (less commonly, atop public planters or private buildings or cars). Participating in a Pride Toronto parade or march is a private activity governed by contract. Applicants for participation are clearly advised that they are signing a contract in the Terms & Conditions document, which lists sanctions available to Pride Toronto for “any breach of contract” (2013 version). The only thing we are discussing is participation in the private parades and marches, not public spectatorship.
Pride parades and marches take place on public streets under the auspices of permits granted by the City of Toronto. Pride Toronto applies for permits every year. Those permits effectively privatize public streets for the uses permitted. Permits are so important to the parade/march process that the City’s refusal to supply a permit for the 2013 Trans March led Pride Toronto to cancel it altogether. As such, in 2013 there is no official Pride Toronto–sponsored Trans March; this is not a complaint against QuAIA’s participation in a march that will not officially happen.
Nonetheless, no one, not even the Dispute Resolution Panel, should entertain the fantasy that Pride Toronto marches and parades are public events. That is true only for bystanders, not participants, who are governed by contract with Pride Toronto. Clubs and organizations, to name two categories, have an unambiguous and recognized right to decide their own criteria for membership; “membership” in this context also means “participation,” especially in a parade.
Further, as Pride Toronto parades and marches are private events, the constitution, including the Charter, does not apply. There is no constitutionally-guaranteed freedom of speech or assembly in these private events. Any claims that QuAIA has a right to assemble in a Pride Toronto–sponsored parade or march to freely express itself is moot. While the common law must be developed with Charter principles in mind, the application process to participate in Pride Toronto parades and marches, and this Dispute Resolution Process, do not constitute development of common law and any statement to the contrary is a grandiose overreach.
Pride Toronto’s 2013 Parade terms and conditions (PDF) state:
All applicants must meet category eligibility requirements as outlined in the online application. If requested by Pride Toronto, applicants must provide proof that the Applicant qualifies for the category applied for. Should there be a dispute, Pride Toronto reserves the right to deny an application on the grounds of ineligibility.
Precedent merits correction. The previous complaint against QuAIA, lodged by Leon Kushner and the League for Human Rights of B’nai Brith Canada (Kushner/B’nai Brith v. QuAIA), misapplied constitutional law, in one case allegedly to duck its responsibility to act on the evidence and ban QuAIA.
¶30: QuAIA argued that the Board in Kushner/B’nai Brith v. QuAIA “should apply Charter values to the manner in which interpret Pride Toronto’s policies.” The Charter did not appertain then and does not apply now to the private contractual agreement QuAIA signed with Pride Toronto.
¶38 was similarly misapplied (again: the constitution does not appertain) and factually wrong on its face. The cited arguments confused a parade with debate. Pride Toronto–sponsored parades and marches are not debates and do not take place “in the public square.”
¶39 commits an offence so severe it should have resulted in complaints to the Law Society. In it, the Board haughtily declares it “unnecessary... to decide whether Toronto Pride is bound by the Charter.” That was indeed within the Board’s remit. The statement is disingenuous in itself because ¶30 and ¶38 already decided the Charter was applicable (it wasn’t).
The present Dispute Resolution Panel must repudiate the legally unsubstantiated conclusions of the Board in Kushner/B’nai Brith v. QuAIA
Sarah Schulman, QuAIA’s American academic supporter and enabler, has stated that gay people have the right to determine their own positioning and strategy (1994:61):
hat was also at stake in this case was a larger political question. Namely – when gay people make a stand within their own hostile ethnic, religious, or racial community, do they have a right to determine their own positioning and strategy? I believe that they do. And this right must be clearly asserted to assure all gay people a place of self-determination within the larger gay community.
I’m quoting Schulman out of context here. She was talking about the Irish Lesbian & Gay Organization’s claimed “right” to march in New York’s St. Patrick’s Day Parade and a breakaway gay group that attempted to undermine the former’s efforts to do so. Nonetheless, what’s sauce for the goose is sauce for the gander. If this QuAIA defender believes gay people have the right to determine their own positioning and strategy, then she must support Pride Toronto’s ability to determine its own membership and participation criteria.
Private contracts not constitutionally governed:
RWDSU v. Dolphin Delivery Ltd. (1986 2 S.C.R. 573):
The Charter does not apply to private litigation completely divorced from any connection with government. Section 32 specifies that the Charter applies to the legislative, executive and administrative branches of government: Their actions are subject to the Charter whether invoked in public or private litigation.... was between purely private parties and did not involve any exercise of or reliance on governmental action which would invoke the Charter.
Royal Bank v. Welton (2009 CarswellOnt 208), holding that private activity escapes equivalency to governmental function:
he application judge was satisfied that the Royal Bank was acting to protect its private interests. He concluded that the Royal Bank and the Toronto Dominion Bank, as private actors..., were not acting as state agents or in furtherance of an inherently governmental function.... Accordingly, the application judge concluded that the impugned provisions did not attract §8 Charter scrutiny.
Gould v. Yukon Order of Pioneers (1996 CarswellYukon 6), holding that an order (club) applied exclusive criteria in a private context with almost no public involvement:
The agreed objects of the order indicated that the membership existed to serve its own members, past and present, and to preserve a Klondike brotherhood, founded upon moral values and male camaraderie. That purpose clearly evinced a very private nature. The order did not purport to represent a diverse membership. The membership’s public involvement was limited in nature.
The decision also discusses a scenario easily applicable to QuAIA’s attempt to invade Pride Toronto’s private events under false pretenses:
There is also an interpretive provision relating to the “preservation and enhancement of the multi-cultural heritage of the residents of the Yukon” (§2). The “Bill of Rights” portion of the Act affirms, inter alia, that “[e]very individual and every group shall, in accordance with the law, enjoy the right to freedom of religion, conscience, opinion, and belief” (§3); that every individual and group “shall, in accordance with the law, enjoy the right to freedom of expression, including freedom of the press and other media of communication” (§4); and that every individual and group “shall, in accordance with the law, enjoy the right to peaceable assembly with others and the right to form with others associations of any character” (§5).... These objects may sometimes be in tension. Even within the associational right there may be a tension between a group’s interest in self-definition and an outsider’s interest in joining or associating with the group.
Parade participants subject to private criteria:
Hurley v. Irish-American Gay Group of Boston [515 U.S. 557 (1995), citations omitted]:
The selection of contingents to make a parade is entitled to First Amendment protection. Parades such as petitioners’ are a form of protected expression because they include marchers who are making some sort of collective point, not just to each other but to bystanders along the way. Moreover, such protection is not limited to a parade’s banners and songs, but extends to symbolic acts. Although the Council has been rather lenient in admitting participants to its parade, a private speaker does not forfeit constitutional protection simply by combining multifarious voices, by failing to edit their themes to isolate a specific message as the exclusive subject matter of the speech, or by failing to generate, as an original matter, each item featured in the communication.
QuAIA, like other applicants, is required to attest that it “operates in a manner consistent with the celebration of Pride and the positive value of diversity and identity” in various communities. QuAIA is the most destructive and poisonous group ever to emerge from gay Toronto and, everyone acknowledges, QuAIA threatens to destroy Pride. No reasonable person, and certainly no Dispute Resolution Officer, could fairly conclude that QuAIA has any interest in “the celebration of Pride” or that it holds or nourishes any “positive value” whatsoever. QuAIA’s concern is the politics of a foreign country – it might claim of two countries, but in no case is the country Canada – and its statements concern that putative issue and its own self-interest and goals.
Taking the contrary position for the sake of argument, if QuAIA is a positive, supportive organization, why did Pride Toronto set up an elaborate dispute mechanism to police it? This isn’t a court of law, but positive, supportive, even innocent community groups don’t need their disputes resolved by arbitrators.
It’s impossible to discuss QuAIA without discussing its leaders. Organizations are not atomized inanimate objects floating through space; they have leaders, and the intent of QuAIA’s leaders makes QuAIA unsuitable for Pride irrespective of stated rules. QuAIA’s Tim McCaskell and Elle Flanders conscientiously hold their beliefs. But beliefs and actions are two different things, and in this case McCaskell and Flanders allegedly act by using QuAIA as a personal positioning statement. McCaskell and Flanders have shown, over a period of decades, that they must always hold leadership positions in activist groups espousing the very most left-wing beliefs of the day. (See, for example, McCaskell’s self-serving and inaccurate history of AIDS Action Now, a group he effectively ran.)
Whether at AIDS Action Now or QuAIA or wherever else, the concrete effect of McCaskell’s and Flanders’s leadership in QuAIA is to position themselves as the most left-wing or “progressive” activists inside gay Toronto. Pride Toronto cannot tolerate its events’ being hijacked for personal positioning statements. QuAIA cannot be allowed to carry out a kind of mission creep on the defined purpose of Pride Toronto.
In a separate organizational positioning statement, in 2011 QuAIA refrained from marching in the Pride Parade. As such, QuAIA itself demonstrated it is not needed in the Parade, which went off without a hitch in its absence. It has already been established that no “right” to march exists. QuAIA’s withdrawal from participation in 2011 can and should be used as a grounds to exclude QuAIA now.
Banning of Queers Against Israeli Apartheid from Pride Toronto marches and parades for the statutory maximum two years.
If QuAIA will agree, in writing, not to apply for, attempt to, or actually participate in any Pride Toronto–sponsored parade or march in 2013 and 2014, I will agree in writing not to file any complaint or otherwise attempt to prevent QuAIA from participating in WorldPride 2014. Take it or leave it.
Schulman, Sarah (1994). My American History: Lesbian and Gay Life During the Reagan/Bush Years. New York: Routledge. ISBN 0415908523
Schulman, Sarah (2012). Israel/Palestine and the Queer International. Durhan, NC: Duke. ISBN 9780822353737