Three months have elapsed since the Federal Court’s judgment in our lawsuit against Canada Post. We have now had a chance to consider the ruling carefully, and report our conclusions.

The case is an important one for anyone interested in the sociology of sex. It marks the first time that the concept of sex-negativity – a prejudice against sexuality – was raised in a Canadian court.

The Sex Party argued that a Canada Post rule that prohibits all “sexually-explicit” unaddressed mail regardless of its educational, political or artistic merit is a classic example of sex-negativity that harms society and is contrary to the Charter of Rights.

We devoted very significant resources to this case. We tendered a detailed affidavit, engaged in a lengthy pre-trial discovery process, filed a meaty written submission and participated in three days of trial.

When we got the decision we were elated. Justice Beaudry ruled that the prohibition was invalid. Our small political party had taken on a major Canadian institution, and won.

But wait a minute.

The judge granted victory based only on very secondary submission of ours that the prohibition was procedurally flawed.

To bring its policies into force, Canada Post needed to follow a set of simple steps. Postal executives had put so little thought in creating the anti-sex prohibition that they had neglected basic procedural rules. The judge struck down the prohibition simply because it was procedurally flawed.

So far so good.

But we never would have gone to court on that issue alone, and the judge knew that.

We understood from the beginning that if we won on that issue Canada Post officials could quickly remedy any procedural defect, and thus revive the prohibition.

To win on a procedural technicality would be no real victory, except for providing another example of bureaucratic stupidity around sex.

So the guts of our case addressed a much more important issue: does Canada Post policy harm society and is it contrary to the Charter?

We turned page after page of the 40 page decision searching for the judge’s discussion of our detailed and nuanced arguments on the key issue. We discovered that our central points had been completely ignored. The judge does not even give reasons for failing to reason. He just ignores the major submissions we make.

See for yourself. Check out the written submissions  we presented to the judge on the Charter issue, and then read his decision. You will notice point after point of our submission not dealt with by the judge.

For example, consider our evidence that after Canada Post prohibited our flyer, it insisted on delivering a hate-filled anti-gay publication. The homophobic pamphlet was so objectionable that the president of the postal service called it “vile", and posties objected to handling it.

The media immediately saw the contradiction in Canada Post policy: refusing a tasteful political pamphlet but accepting hate material. Several journalists wrote about the issue. The matter was even raised in Parliament.

We tendered the evidence to show that Canada Post’s purported reasons for the prohibition of our flyer – protecting people from offense, and protecting children – was bogus. We argued that if postal executives had any genuine concern for preventing offense or protecting children, they would prohibit homophobic material. Instead they insisted on delivering it.

So what does the judge say about this overt and obvious contradiction in Canada Post policy? He rejects the evidence as irrelevant! He says not a word about the absurdity of a policy that allows “vile” homophobic tracts but prohibits a political sex-positive flyer.

Consider another example.

A cornerstone of our argument was the 1983 ruling of the United States Supreme Court in a case very similar to ours. The US Postal service had refused to deliver an advertisement for condoms. The advertisers sued. Like Canada Post, the US Postal service claimed it was protecting children. The highest US court sided with the condom advertiser.

It said:
“This marginal degree of protection [of children] is achieved by purging all mailboxes of unsolicited material that is entirely suitable for adults. We have previously made clear that a restriction of this scope is more extensive than the Constitution permits, for the government may not ‘reduce the adult population . . . to reading only what is fit for children.’ The level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox."

That last line neatly summarizes the nub of a complex issue: “The level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.” We thought the judge might quote that line in our case. Instead, we find not a word about that issue.

These failures to answer the substance of our case constitute a breach of justice. The hallmark of proper judicial decision-making is to lay bare the reasoning behind the ruling.

Why would a judge stray so far from normal practice?

In fact, while exceptional and unusual behavior for a judge, his absence of reasoning turns out to be the norm when sex is the issue.

Ever since the 1950s when constitutional issues involving sex were first presented to courts in North America, judges have demonstrated an aversion to the subject.

Sex is not something most judges want to think about in any detail.

The classic example is the famous admission of Judge Potter of the US Supreme Court that he “could never succeed in intelligibly defining” pornography “but I know it when I see it.”

Judges rarely acknowledge failure so forthrightly. To on the one hand be able to “see” something and make important decisions on the basis of that seeing, yet on the other hand not to be able to describe what is seen and hence not issue intelligible reasons, violates everything judges and lawyers have learned about good lawmaking.

If a judge in a mortgage law or maritime law case said “I can see who is at fault here and I rule against them, but I can’t express why,” he would be laughed off the bench.

But the history of judicial decisions pertaining to sex is littered with such intellectual primitivism, as several legal scholars have observed.

The judge in our case was simply on track with this unjust tradition.

To understand why judges have difficulty reasoning about sex, consider non-sexual examples in legal history where judges have been thought-impaired.

For almost 100 years the American Supreme Court upheld racist laws that segregated African Americans out of trains, schools and parks. Yet the American constitution guaranteed “equal protection of the laws”.

A law that forces a person off a train just because of the color of their skin is obviously contrary to a right to equality under the law. To any ordinary person today, the issue is a no-brainer. But generations of judges could not see that. Their minds were clouded.

We now know what short-circuited their brains: prejudice.

Psychologists have discovered that a prejudiced person who is otherwise highly intelligent cannot think clearly about the subject of the prejudice. A person with a prejudice against black people cannot think clearly about black people. Hence judges’ decisions about the constitutional rights of black people were nonsensical. They were prejudiced against blacks.

If generations of judges have dealt with sexual issues in a similar irregular way, then the obvious hypothesis arises: judges are prejudiced about sex. Their sexual decisions deviate from normal judicial practice because judges are uncomfortable with sexuality, the same way previous generations of American judges were uncomfortable with African Americans.

But how would judges acquire a prejudice against sex?

The same way racist judges acquired their prejudice: by absorbing it from the general culture.

Sex is not something people want to discuss. Most of us can’t talk about it comfortably with our children, our friends, or even our lovers!

So our theory is that in avoiding communicating clearly about sex in the decision in our case, the judge was not only following an anti-sexual judicial tradition, but a much larger cultural taboo. Like most other people in our culture the judge was uncomfortable discoursing seriously about sex. To answer the issues we raised, he would have had to discuss sex in detail. Such as why an abstract artistic sex-positive image in a political pamphlet deserves prohibition, while an overtly homophobic tract deserves protection. Instead he omits the issue entirely.

Unlike the average person, judges are trained extensively and paid handsomely to craft reasoned decisions. That even they cannot rise above the sexual anti-intellectualism that is the hallmark of our culture is profound evidence of the depth of the social problem.

Constitutions were invented precisely to exclude prejudice from government. But the system fails when judges who must uphold the constitution also acquire the prejudice. The result is that sex-positive groups and individuals are denied the same rights to communicate as homophobes.

And it gets worse still.

In not thinking through this decision the judge discouraged healthy sexual expression such as contained in our flyer, but at the same time encouraged the type of largely unwholesome sexual expression contained in pornography. More about that bizarre outcome of the case in an upcoming issue of Public Sex.