Donor Anonymity

Today's Sunday Age highlights disagreement in Victoria about the removal of anonymity for sperm donors, ie people who donated on the basis of an express agreement that their identity would not be revealed.

Former Victorian Governor (and IVF specialist) David De Kretser has urged the state parliament to respect those donors, consistent with submissions to the Senate Legal & Constitutional Affairs References Committee regarding its 'donor conception' report highlighted earlier this year.

The matter is being considered by the Victorian Parliament's Law Reform Committee in its Inquiry into Access by Donor-Conceived People to Information About Donors. (Submissions in 2010 and 2011, are accessible here.)

The Sunday Age states that the Committee -

has begun an inquiry into whether all donor-conceived children should get access to information about their biological parents.

At present, the law varies depending on when the donation was made, meaning people conceived before 1988 do not have the right to know about their donors because they were granted anonymity at the time.

In his submission to the review, Professor de Kretser - who helped set up the first donor insemination service at the former Prince Henry's Hospital - said it would be "unfair" to disregard the privacy of the thousands of men who donated on the condition of anonymity.

But while the right of sperm donors to remain anonymous should be preserved, more should be done to encourage them to meet their offspring voluntarily, he said. For instance, where contact details are available, "a discreet approach" could be made to donors asking them to consider making their identity known to their offspring.

"If they were willing to consider this, then an appropriate counsellor could be put in place and it would then be up to the donor, if he would be willing to be identified," Professor de Kretser told The Sunday Age.

The question of whether donor-conceived children should be granted information has always been vexed, with the law based around a three-tiered system. People conceived using sperm donated after January 1 1998, have unconditional access to information about their donors; those conceived using sperm donated between July 1 1988, and December 31 1997, can access information about their donors if their donor consents; but those conceived before 1988 do not have the right to access because donors have been granted anonymity.

One of the most cogent discussions is that provided in the August 2011 submission by the Victorian Privacy Comissioner, which comments that -

It is important to note the prevailing circumstances of donors in the pre-1988 world. Generally, donors entered into donation arrangements with the medical provider directly and were assured confidentiality, and similarly agreed not to seek the identity of children conceived.1 Donors were commonly young, receiving inadequate counselling and unaware of the magnitude of their donation, and often compensated with medical treatment, STD testing, money or course credits.

It is equally vital to note the strong interest in donor-conceived individuals being able to obtain information about their donors. Obtaining one’s own personal information is in fact a privacy right in itself. Information relating to the donor’s medical and genetic history, and a person’s right to know their genealogy, are extremely important concepts for donor-conceived individuals, and one that individuals with known parents may take for granted. The information sought by donor-conceived persons may appear routine – a photograph or simply an answer to the question of ‘what is he/she like?’ It is possible that denial of such information could affect the physical or mental health of a donor conceived person, although it is noted that due to advances in genetic testing for heritable disease this appears less the case than previously.

The submission went on to comment that -

In my view, the best option for balancing the rights of both donors and donor-conceived individuals is essentially similar to that recommended by the Victorian Law Reform Commission (VLRC) being:

Donors (are) to be contacted and asked to consent to the release of information only upon request for information by a donor-conceived person.

This approach is to be preferred to that of recontacting all donors and asking all donors to re-consent to identification. As pointed out by the Victorian Assisted Reproductive Treatment Authority (VARTA), that option would be time consuming as it would require donors to be contacted regardless of whether an application is received.

It is entirely possible that whilst some donor-conceived individuals may have a strong need for information about their donor, other donor-conceived individuals may not. It would be somewhat impractical to seek the consent of donors to release information about them in the absence of a specific request in the future.

Secondly, such a procedure would replicate the provisions for access to information by donor-conceived people conceived using gametes donated between 1 July 1988 and 31 December 1997.

Additionally, a consent-based procedure may in fact increase the data quality and accuracy of information to be made subsequently available to donor-conceived individuals. Donors could, during any consensual-based release policy, be afforded the opportunity to check to ensure that the information to be provided to the donor-conceived individual is accurate and correct, and potentially add further information if they wish. Such an opportunity could actually result in better information provision for donor conceived persons.

A note of caution

Firstly, it should be noted that any proposed contact itself will be a form of privacy imposition, albeit a lesser one than disclosure of one’s personal information, but an imposition nonetheless. Donors who were assured confidentiality at the time of donation would not ordinarily expect contact from any authority purporting to gain their consent to disclose their personal information to a donor-conceived individual. Donors, for example, may not have informed their families of their past donation(s). Great care needs to be taken in initiating contact with any donors who were assured confidentiality.

Data quality issues may also be considerable when making initial contact with donors. For example, contact details will need to be carefully verified and contact made in a confidential, appropriate fashion. The possibility of an individual being wrongly identified as a donor and being sent requests for consent to release their information could be quite stressful for the recipient involved.11

Secondly, gaining proper, informed consent from donors for any release of the donor’s personal information is vital. It is fundamentally important that donors are in a position to provide truly voluntary and informed consent as to how their personal information will be disclosed to donor-conceived individuals. This will include, at a minimum, explaining:

• that the decision to consent to disclosure is a voluntary one;
• what precise types of personal information of the donor is proposed to be disclosed;
• who will receive the information (presumably the donor-conceived individual);
• whether the donor wishes to receive contact from the donor-conceived person and if so, how that is to occur, and
• explanation of the impacts (positive and negative) a decision to consent to disclosure may have on the donor.

It may be necessary that donors receive some level of counseling before providing consent. This is particularly the case with pre-1988 donations, given the possibility that contact from any authority may be quite an unexpected event for the donor, and the donor may not have had the opportunity to fully consider the ramifications of a request.

Anonymity and Allegations

The UK Government is relying on indications that "nearly half the allegations made against teachers in England are malicious, unsubstantiated or unfounded" in justifying plans to give K12 teachers a legal right to anonymity when pupils alleged abuse.

In particular, the Schools Minister has indicated that only 3% of investigations resulted in a criminal caution or conviction for the teacher.

The Allegations of abuse against teachers and non-teaching staff: Interim findings from a survey of local authority designated officers (DFE-RB163) report [PDF] comments that -

It is essential that any allegation of abuse made against a teacher or other member of staff is dealt with properly and promptly. This means quickly, fairly and consistently, and in a way that provides effective protection for the child whilst protecting the rights and livelihood of the person accused. In The Coalition: our programme for government, the government made a commitment to give anonymity to teachers accused by pupils and take other measures to protect against false allegations. The Education Bill currently before Parliament contains measures to introduce reporting restrictions preventing the publication of a teacher’s identity when accused by, or on behalf of, a pupil until the point that they are charged with an offence.

There has been no centralised national data collection on the number and nature of allegations of abuse referred to Local Authority Designated Officers (LADOs) since 20071. The Department for Education (DfE) commissioned York Consulting LLP to conduct research into the scale and nature of allegations of abuse made against teachers and the processes for handling these at the local authority and school level. This research brief presents the interim findings of the research based on evidence from a census survey of LADOs in 2011. The survey collected data on allegations of abuse made against teachers, non-teaching staff in schools and further education (FE) teachers referred to LADOs in the period 1st April 2009 to 31st March 2010. Questions explored the number and nature of allegations referred, investigative action taken, time taken to conduct investigations and outcomes.

The key findings were -

• The total number of allegations of abuse referred to LADOs in the 116 LAs responding to the survey in the reporting period was 12,086.
• The number of allegations made against school teachers was 2,827. This constitutes almost a quarter of the total number of allegations referred to LADOs. Whilst the figures are not directly comparable, the proportion of teachers accused of abuse is substantially higher than that reported in the DCSF 2007 survey.
• The number of allegations made against non-teaching school staff was 1,709 constituting 14% of the total number of allegations referred.
• The number of allegations made against FE teachers was 106 constituting 1% of the total number referred.
• The majority of allegations of abuse made against school teachers and non-teaching staff were physical in nature (56%, n=1,584 and 49%, n=842 respectively). Allegations made against FE teachers were most frequently about sexual abuse (49%, n=52) although this figure should be interpreted with caution, given the low base of allegations against FE teachers reported.
• Almost a fifth of school teachers (18%, n=459) were suspended whilst the allegation was being investigated.
• For non-teaching school staff and FE teachers the figures for suspension were 29% (n=431) and 36% (n=36) respectively.
• Over a tenth of allegations against school teachers (12%, n=336) and 19% (n=323) of allegations against non-teaching school staff were subject to a criminal investigation according to LADOs.
• For FE teachers, this figure was higher at 31% (n=33) which is likely to be a reflection of the higher number of allegations that were sexual in nature.
• The majority of allegation investigations (74%, n=3,183) were concluded within three months or less.
• Nearly half of the allegations made against school teachers (47%, n=1,234) and two-fifths of allegations against non-teaching school staff (41%, n=639) were found to be unsubstantiated, malicious or unfounded.
• Nearly a fifth of allegations against teachers (19%, n=497) and 15% of allegations against non-teaching school staff (n=236) were considered to be unfounded and just 2% (n=56) to be malicious. Of the allegations made against FE teachers, 16% (n=16) were found to be unsubstantiated, 7% unfounded (n=7) and none malicious.

Appearances

Two perspectives on regulation.

In Victoria the Scrutiny of Acts & Regulations Committee of the State Parliament has criticised [PDF] proposed amendments to the Gambling Regulation Act 2003 (Vic) regarding the offence - punishable with a fine of up to $11,000 - of insulting the Minister for commercial gambling.

The Committee comments that -

Freedom of expression – Offence to insult Minister or authorised person exercising due diligence powers relating to legacy monitoring systems

Summary: The Committee refers to Parliament for its consideration the question of whether or not new section 3.8.11, which creates an offence of insulting the Minister for Gaming or an authorised person while they exercise due diligence powers relating to legacy monitoring systems, is reasonably necessary to respect those people’s rights and reputation.

The Committee notes that clause 32, inserting a new section 3.8.11 into the Gambling Regulation Act 2003, makes it an offence to "assault, obstruct, hinder, threaten, abuse, insult or intimidate" the Minister for Gaming or authorised persons exercising due diligence powers relating to legacy monitoring systems.

Charter s. 15(3) [discussed recently] provides:

Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary‐
(a) to respect the rights and reputation of other persons; or
(b) for the protection of national security, public order, public health or public morality.

The Statement of Compatibility remarks:

New section 3.81.11 is a lawful restriction that is reasonably necessary to respect the rights and reputation of the minister and authorised persons and complies with section 15(3)(a) of the charter act. The limitation is authorised by law and is reasonably necessary to ensure that the minister or authorised person is able to exercise their powers under the act without hindrance. The assault, obstructions, hindrances, threats, abuse, insults or intimidation that is prohibited under this new section would offend the minister’s or authorised persons’ right to liberty and security under section 21 of the charter act, as well as the right to privacy and reputation under section 13 of the charter act. It follows that new section 3.8.11 is compatible with the freedom of expression under section 15 of the Charter Act.

While the Committee agrees that the criminalisation of assaults, obstructions, hindrances, threats, abuse and intimidation are compatible with the Charter’s right to freedom of expression, it notes that the criminalisation of insults may capture behaviour that is unlikely to hinder the exercise of powers under the Act or impinge on anyone’s rights or reputation. In 2004, a majority of the High Court held that the allegations of corruption can amount to insulting behaviour (subject to the constitution’s implied freedom of political communication.)

That HCA decision is Coleman v Power [2004] HCA 39, 220 CLR 1.

The Committee went on to observe that -

since the Charter was enacted, at least two Bills and one regulation have removed or refrained from introducing offences of insulting behaviour. Two further Bills that criminalised insulting such officers did so to preserve order in public proceedings and imposed a fine
of only 10 penalty units. By contrast, new section 3.8.11 applies to all public and private exchanges and carries a fine of 100 penalty units.

The Committee refers to Parliament for its consideration the question of whether or not new section 3.8.11, by creating an offence of insulting the Minister for Gaming or an authorised person when they exercise due diligence powers relating to legacy monitoring systems, is reasonably necessary to respect those people’s rights or reputation.

On to the High Court?

Adam Samaha in 'Regulation for the Sake of Appearance' (University of Chicago Law & Economics, Olin Working Paper No. 576) argues that -

Appearance is often given as a justification for decisions, including government decisions, but the logic of appearance arguments is not well theorized. This Article develops a framework for understanding and evaluating appearance-based justifications for government decisions. First, working definitions are offered to distinguish appearance from reality. Next, certain relationships between appearance and reality are singled out for attention. Sometimes reality is insulated from appearance, sometimes appearance helps drive reality over time, and sometimes appearance and reality collapse from the outset. Finally, sets of normative questions are suggested based on the supposed relationship between appearance and reality for a given situation. These normative questions include aesthetics, transparency concerns, and the likelihood of a self-fulfilling prophecy. A final section applies these ideas to prominent debates over campaign finance regulation and broken windows policing. Leading empirical studies are examined and, throughout, the Article draws from scholarship in philosophy, sociology, psychology, economics, and political science. ...

This Article suggests a distinction between the elusive concepts of appearance and reality, along with several ways in which the two can be related. Often we think that reality is insulated from any influence that can be linked to appearance, but sometimes an appearance becomes the basis for conduct that fosters a corresponding reality over time, and sometimes the concepts essentially collapse in the first place. Grasping these relationships is important for reaching sensible normative judgments about appearance-based justifications. The evaluative issues are comparatively simple when appearance and reality are essentially the same. As always, cost and efficacy of appearance management will be relevant, but still other questions arise when appearance and reality might diverge. If reality seems insulated from appearance, the key question involves transparency: whether, for example, attempts to build public confidence can be justified despite the risk of a gap between the apparent and actual conduct of officials. If instead reality might be a function of appearance over time, the transparency issue becomes subordinate to a causal question: whether, for example, the appearance of good behavior will help produce a beneficial self-fulfilling prophecy.

Silks

Smallbone v New South Wales Bar Association [2011] FCA 1145 involves an application by barrister David Smallbone under s 98 of the Privacy Act 1988 (Cth) for access to information collected in relation to his application to be appointed as a NSW Senior Counsel.

The Bar Association invited applications earlier this year for appointment to silk, ie elite barristetrs. In connection with those applications the Association collected personal information, including opinions relating to Smallbone, such as comments from the barristers and solicitors Consultation Group and the Judicial Consultation Group (ie judges and judicial officers). The Court noted that 579 people were consulted in relation to all applications. 458 persons responded: 156 judicial officers or retired judicial officers, 169 senior counsel, 71 junior counsel and 62 solicitors. Some of those who responded provided information in relation to the applicant.

Smallbone claimed a right of access to the information that concerned him; the Association notified Smallbone that it refused to provide such access.

In the ensuing litigation both the Association and Smallbone agreed that the former is an 'organisation' within the meaning of section 6C(1) of the Act. There was no dispute that collection, use and destruction of information relating to the appointment of Senior Counsel is governed by the National Privacy Principles (NPPs) in Schedule 3 of the Act. The Association is not covered by a formal Privacy Code under the Act.

NPP 6.1 provides that information holding 'personal information' about an individual must - subject to some exceptions - provide that person with access to the information if requested by the individual. Smallbone had made such a request. The issue considered by the Federal Court was the extent to which provisions in NPP 6.1 limit the right of access.

Yates J noted that an organisation's provision of access to personal information is bounded by exceptions, notably NPP 6.1(c) which covers circumstances where "providing access would have an unreasonable impact upon the privacy of other individuals".

Smallbone argued that providing access to all of the information, including the identity of people who had supplied that information, would not have an unreasonable impact on the privacy of other individuals. In contrast the Association argued that providing access to any of that information would have an unreasonable impact upon the privacy of other individuals: NPP 6.1(c) was to be read as providing an absolute exemption to provision of access.

Consistent with the spirit of the legislation the Court indicated that the assessment of an "unreasonable impact" involved having regard to all circumstances of the particular case. Yates J referred to C v Insurance Company [2006] PrivCmrA 3, in which the Privacy Commissioner identified considerations regarding whether access to documents containing the personal information of third parties would have an unreasonable impact on the privacy of those individuals. They included -

• whether the individual would expect that his or her information would be disclosed to a third party, including whether an assurance of confidentiality was provided.

• the extent of the impact on the individual’s privacy.

• whether any public interest reasons for providing access to the information outweigh any expectation of confidentiality.

• whether masking the identifying details of the third parties would sufficiently protect the privacy of these individuals.

The Court stated that -

Those considerations are helpful indicators of some of the considerations that might be involved in a particular evaluation of the application of NPP 6.1(c). They are not, however, the only relevant considerations. Another relevant consideration is the nature of the information that is held by the organisation and the form in which that information is held. ... The evidence makes clear that members of the Consultation Group and the Judicial Consultation Group were invited to provide information on all applicants for appointment as Senior Counsel in 2011 on the express assurance that all information received in response to that invitation would be treated as confidential and made only available to the Selection Committee and its secretariat.

The Court found that Smallbone was entitled to access the personal information that the Bar Association collected in relation to his application. However the Association is not obliged to provide access to information that discloses -

a) the identify of persons who are members of the consultation groups who have provided information to the Respondent and, in the case of members of the consultation groups who are judicial officers, the identity of the court to which each member has been appointed, if it is a court other than the Supreme Court of New South Wales; or

b) the identity of or information about other persons who are applicants for appointment as Senior Counsel in 2011 or who have provided information about persons who are applicants for appointment as Senior Counsel in 2011.

Given the "circumstances in which the information was sought and the circumstances in which it came to be provided, as well as the nature of the information itself" access to that information would have an unreasonable impact on the privacy of Judicial Consultation Group and Consultation Group members. The small number of responses from "some judicial officers from some identified courts" mean that "disclosure of information by reference to those courts will have an unreasonable impact upon the privacy of other individuals, being the judicial officers of those courts who have provided information" about Smallbone.

Provision of access to documents that feature the identity of and information about other applicants for appointment will have an unreasonable impact upon the privacy of those individuals.

The outcome is that Smallbone has access to the documents except for the exceptions and that the Association is restrained from making any adverse determination of his application until eight days after his inspection of the records.

Safe Harbour

The Australian Attorney-General has released a short discussion paper on potential changes to the safe harbour provisions of the Copyright Act 1968 (Cth). The paper precedes a broader review of the Act, with terms of reference to be released before the end of the year.

The paper states that the Act was amended in 2006 "to provide a scheme offering legal incentives for Carriage Service Providers (CSPs) to cooperate with copyright owners in deterring copyright infringement on their networks" -

The scheme is commonly referred to as the ‘safe harbour scheme’ and limits the remedies available against CSPs for copyright infringements that take place through their systems and networks that they do not control, initiate or direct.

Application of the safe harbour scheme is not automatic. In order for a CSP to enjoy the protection provided by the safe harbour scheme, certain conditions applicable to the particular category of activity provided by the CSP must be satisfied .

The scheme covers the following four categories of activities that may be provided by CSPs:

• Category A – acting as a conduit for internet activities by providing facilities for transmitting, routing or providing connections for copyright material
• Category B – caching through an automatic process
• Category C – storing copyright material on their systems or networks, and
• Category D – referring users to an online location (for example, linking).

. At the moment tthe safe harbour scheme only applies to CSPs as defined under the Telecommunications Act 1997 (Cth) in what was thought to be "a suitable and technologically neutral term". A CSP is an entity that supplies a listed carriage service to the public using a network unit owned by one or more carriers, or a network unit that has a nominated carrier declaration. That entity must be operating primarily as a provider of network access to the public.

The paper notes that the definition poses challenges in relation to application to the Copyright Act.

Entities providing services that fall within the four categories cannot rely on the safe harbour unless they provide network access ‘to the public’. Some commercial and other entities operate servers to provide internet access for corporate clients, customers, students and other users, but not to ‘the public’. These entities activities fall within the Category A activity, but they are excluded from the definition of a CSP. Online search engines, bulletin board operators and online vendors conduct Category D activities but are excluded from the definition because they are not ‘providers of network access’ and therefore not eligible for the safe harbour. As a result, these entities face similar liability issues to CSPs in relation to infringements occurring through the services they provide.

The paper indicates that -

The Australian safe harbour scheme was implemented pursuant to the Australia-United States Free Trade Agreement. A number of other countries, in particular, Singapore and Korea, have also implemented safe harbour schemes that have allowed a broad range of entities in those countries to take advantage of the limitation on remedies available for copyright infringement occurring on their networks.

In the United States, the courts have determined that, for the purposes of the US scheme, the term ‘service provider’ includes an internet service provider acting as a conduit for peer-to-peer file sharing programs , providers of the software and operators for instant messaging services , internet service providers that provide subscribers with news groups and online vendors . This extends the application of the scheme beyond entities responsible merely for providing the infrastructure for the internet.

The Singaporean safe harbour scheme closely resembles the US safe harbour scheme. Both schemes provide a two-tiered definition for ‘network service provider’ and ‘service provider’ respectively, which include providers of online services or operators of facilities providing online services or network access. However, in circumstances where entities are simply involved in transferring information which is not stored on the provider’s networks, Singapore provides a more limited definition of ‘network service provider’ to be specific to the conditions to be satisfied for this activity in order for the entity to enjoy limited liability under the safe harbour scheme.

The Korean copyright law contains a safe harbour scheme for entities that provide network access and online services. The Korean definition of ‘online service provider’ appears to be broader in scope than the relevant definitions provided by the US and Singapore. The definition includes persons providing others with services that reproduce or interactively transmit works, etc. through information and telecommunications networks (which includes information and communications systems, under which telecommunications infrastructure are employed, or the telecommunications infrastructure, computers, and software are used together for gathering, storage, processing, searching, transmission and reception of information).

It is apparent that the current definition of ‘carriage service provider’ gives the Australian scheme a more restricted scope than equivalent safe harbour schemes in the US, Singapore and Korea. The approach these countries have taken in implementing the safe harbour scheme has been taken into consideration in developing the proposal to amend the Australian scheme.

As a result the Government proposes that the scope of safe harbour scheme in the Copyright Act be amended to cover a broader range of service providers.

Amendment would involve an alternative term (‘service provider’, with a definition that is "simple and effective, technologically neutral, and consistent with Australia’s international obligations") to replace ‘carriage service provider’ for the purposes of the safe harbour scheme. That new term would cover internet service providers and operators of online services, irrespective of whether they provide a carriage service to the public. The expectation is that it would be consistent with the Australia-United States Free Trade Agreement and comparable international approaches.

The amendment is "not intended to alter the existing balance of the scheme", with eligibility continuing to be" determined by optional adherence to the conditions prescribed for each of the four separate categories of CSP activity".

In describing the broader review the Attorney-General quoted Heraclitus ("nothing endures but change") and stated that -

Earlier this year I said that I intended to provide the Australian Law Reform Commission (ALRC) with a reference on copyright. Today, I am pleased to provide more information about the terms of reference for this inquiry.

The inquiry will seek a review of whether the exceptions in the Copyright Act are adequate and appropriate in the digital environment.Currently the Copyright Act has general exceptions to the rules regarding infringement of copyright. These include: fair dealing, the 10 per cent rule and private copying when format-shifting, time-shifting or for special purposes.

There are also specific exceptions such as allowing the making of a copy of a computer program resulting from the process of normal use of the program or for back-up purposes. However, in a fast changing, technologically driven world it is vital for us to see whether existing statute is appropriate and whether it can be improved.

My Department is in the process of finalising proposed terms of reference in consultation with the Australian Law Reform Commission. I intend to invite stakeholders to submit comments on the proposed terms before they are finalised and anticipate releasing them for comment before the end of the year.

There has been no indication that the ALRC, the target of significant cutbacks over several years, will receive additional resources.

Interests, Rights, Identities

'Sexual Rights and Disability' by Ezio Di Nucci in 37 Journal of Medical Ethics (2011) 158-161 argues against Appel's proposal -

that there is a fundamental human right to sexual pleasure, and that therefore the sexual pleasure of severely disabled people should be publicly funded — by thereby partially legalising prostitution. An alternative is proposed that does not need to pose a new positive human right; does not need public funding; does not need the legalisation of prostitution; and that would offer a better experience to the severely disabled: charitable non-profit organisations whose members would voluntarily and freely provide sexual pleasure to the severely disabled.

Di Nucci states that -

Appel [in 'Sex rights for the disabled?' 36 Journal of Medical Ethics (2010) 152-154] has recently argued in favour of sexual rights for the severely disabled:

For too long, our society has viewed these unfortunate individuals as non-sexual beings, adopting rules in matters such as consent and reimbursement that may serve the interests of able-bodied society, but do a profound disservice when applied to those with disabilities. If we are to overcome these obstacles, and to live in a more just civilization, we must begin to see sexual pleasure as a fundamental right that should be available to all.

Appel proposes that, in order for such right to be upheld, sexual services for the disabled be publicly funded:

we should seriously consider including sexual surrogacy for the disabled in the basket of services that we provide. Already, we have made the choice to pay for other purely social and cosmetic services to help unfortunate individuals lead more pleasurable and productive lives - such as breast reconstruction for mastectomy patients and plastic surgery for children born with cleft lips... Sexual pleasure ought not be viewed any differently. Most western healthcare systems acknowledge this, to some degree, paying for medications to treat erectile dysfunction in men and subsidising birth control pills for women... Any notion of healthcare broad enough to encompass cosmetic surgery ought to be generous enough to include funding for the sexual pleasure of the disabled... [which] should be covered by all public health systems and private insurance plans.

Here I present a better argument than Appel's to address his concerns about the sexual satisfaction of the severely disabled. I also believe that the sexual interests and needs of the severely disabled ought to be met. But I have three worries with Appel's strategy:

1) Should we meet the sexual interests of the disabled by introducing a right to sexual pleasure? A right that Appel describes as 'fundamental', perhaps hinting to the stronger view that it should be an inalienable human right?

2) Should we meet the sexual interests of the disabled by appeal to the public purse? Sexual satisfaction for the severely disabled, according to Appel, "should be covered by all public health systems and private insurance plans".

3) Should we meet the sexual interests of the disabled by a restricted legalization of prostitution, as Appel argues for? If sexual pleasure is a fundamental right, as this author believes, then jurisdictions that prohibit prostitution should carve out narrow exceptions for individuals whose physical or mental disabilities make sexual relationships with non-compensated adults either impossible or highly unlikely.

Di Nucci goes on to comment that -

I agree with Appel that there is a problem, and that this is an important moral problem: there are individuals with legitimate interests which find it very difficult if not impossible to satisfy those legitimate interests without external assistance. That is precisely the framework within which society's intervention is called for. It is exactly within this framework that people routinely call for ambulances or the police: their own or someone else's legitimate interests in not being mugged, stalked, raped, or killed – in the case of the police; their own or someone's else legitimate interests in not bleeding to death, or lose a limb, or die of an heart attack – in the case of ambulances. A citizen has a legitimate interest that she wants upheld, so she calls in the state for help. So far, so good. So should there be a public service that severely disabled people (or more likely someone on their behalf) can call upon for the satisfaction of their legitimate sexual interests?

The 'legitimate interests satisfaction' framework that I have developed above does not just apply to calls to the police or the ambulance service. It also applies to pizza deliveries. A citizen has a legitimate interest that she wants upheld – she wants a pizza without having to leave the house – so she calls pizza delivery. Now it might be argued that if pizza deliveries had not proved to be a legal and commercially successful enterprise (maybe because of ancient prejudices like those against prostitution), then the state should come in and guarantee pizza delivery by public funding. But, more likely, the pizza delivery example shows that it is not enough that citizens – any citizen, more or less vulnerable – have legitimate interests for those interests to need, thereby, to be met with legislation and public funds.

This is indeed why Appel must talk not just of legitimate interests, but of rights. But the problem, with 'rights' talk in this context, is, firstly, in having to establish whether sexual services are more like the ambulance service and the police rather than pizza delivery. Secondly, we must either grant everybody the right to sexual satisfaction, or we must argue that severely disabled people have, in virtue of their increased difficulty to satisfy their sexual interests, a right to sexual services that non-severely disabled people do not have. Let me emphasize that these two options are genuinely alternative: namely, the latter is incompatible with the former. If sexual satisfaction (where physically possible, that is) is a human right, then severely disabled people do not have more of a right to it than everybody else.

Embodiment

The modish 'Intimate Pedagogy: The Practice of Embodiment in University Classrooms' by Katie Pryal in 1(2) Assuming Gender (2010) 62-77 is concerned with "the intimacy of university classrooms, especially in the context of gender, sex, and sexuality"

I suggest that students and professors constantly battle the intimacy that arises in pedagogical relationships. Despite our best efforts, these moments of intimacy intrude upon students' relationships with one another and professors' relationships with students. These intrusions are often unexpected and uncontrollable, and are inextricably tied to gender and sexuality. These moments when the facade breaks down, moments of embodiment, are when the greatest teaching can occur. In order to be great professors, we must attain a level of intimacy with our students. Intimacy, for the purposes of this article, means simply this: setting aside an assumed genderless, sexless professorial facade, and standing beside our students, embodied. In this article I build upon the work of pedagogical theorist Jonathan Alexander, putting forward the idea of a 'rhetoric of the body' to help understand the ways professorial bodies perform in the classroom. I then turn to the work of theorists bell hooks and Jane Gallop and their work on eros in the classroom, to discover connections between what I call embodiment – moments when professors lose the facade of a bodiless identity – eros, and pedagogy. Lastly, I take these ideas and examine a course in which I taught the U.S. Supreme Court opinion Lawrence v. Texas (2003), in which the Court declared anti-sodomy laws unconstitutional. In this course, content, pedagogy, intimacy, and embodiment came together in a practical demonstration of the theories I put forward here.

She comments that -

Quintilian claimed that the ideal public speaker is the ʻgood man speaking wellʼ, combining the unimpeachable ethics of the person with the excellent quality of the oration. Quintilianʼs words have also been used to describe the ideal professor. Feminist pedagogy, however, has revealed the weaknesses in Quintilian's simple approach: what it means to be ʻgoodʼ, and to speak ʻwellʼ is often tied to the physical identity of a speaker. Students, colleagues, and institutions often complain that female professors' voices are too high-pitched or too quiet. Rhetorical and professorial skill, then, is tied to body identity far more than dominant Cartesian philosophy would have us believe.

Pedagogical theorist Jonathan Alexander, in ʻTransgender Rhetorics: (Re)Composing Narratives of the Gendered Bodyʼ, hopes to show ʻhow transgender theories can inspire pedagogical methodsʼ, and help us understand ʻthe narration of gender as a social constructʼ. Alexander wishes ʻto approach a deceptively simple question – What is the story we tell about gender?ʼ. In response to this question, I would like to add others: who is it that tells this story? Why? And, how is it told – especially in the context of a university classroom? These are questions of power. Finally, I would like to ask: what are the consequences of these stories in a pedagogical setting? This is a question of ethics.

Alexander writes that his pedagogical method is ʻan approach to thinking about gender that is invigorating, critical, and insightful – one that opens up new vistas for students in considering the intersections among gender, the body, and the body politicʼ. Indeed, his description of the writing projects undertaken in his classroom appears invigorating, and the work produced by his students is often awe-inspiring. But we need to take his work a step further. Alexander hopes to provide an opportunity for his students to think about gender. But is thinking about gender enough? Feminist professor Patrocinio Schweickart admonishes: ʻFeminist criticism, we should remember, is a mode of praxis. The point is not merely to interpret literature in various ways; the point is to change the worldʼ.

I suggest readers need greater ethical engagement with the texts professors assign, and this engagement begins with the professor-student relationship.

The selection of material is indeed the first step in this engagement. In discussing why he presented transsexual narratives to students, Alexander explains, ʻtrans sites powerfully reveal gender as a social construction – as a narration that rhetorically, and politically, uses gender to maintain categories, roles, and knowledges that delimit and police our bodies and identitiesʼ. Cultural theorists readily recognize gender as a social and linguistic construction, but Alexander goes one step further, and associates, even equates, that construction with narrative, or storytelling. Alexander continues:

in examining the stories that trans activists tell about themselves, we witness the construction of counternarratives, alternative modes of identity construction, and a number of creative rhetorical moves that show how narratives of personal experience can be used to query a variety of personal and sociopolitical issuesʼ.

Alexander recognizes, however, the limitations of his project in the concluding section of his essay. He writes of his own doubts:

I am not sure that our narratives of gender swapping and transition were necessarily helping liberate participants from gender norms, even though I believe they offered us opportunities to explore useful insights. If anything, they revealed the extent to which gender is much more than a set of roles and rhetorical tropes; there is a rhetoric of the body that needs careful consideration as well.

Even as Alexander expresses uncertainty about the effectiveness of his pedagogy in the process of liberation ʻfrom gender normsʼ, he identifies a new project that he had not been aware of, one that provides fascinating new possibilities. Rather than functioning as a simple narrative that can be changed as the storyteller sees fit, the body is shaped by – and helps shape – a rhetoric beyond anyoneʼs control: by a ʻrhetoric of the bodyʼ that Alexander identifies. This rhetoric of the body is yet another place, along with language, where we may begin to ethically engage with knowledge and power in the classroom. Yet, in the academy we all (students and professors) ostensibly march around as disembodied minds waiting for enlightenment. There does not appear to be much room for discussion of rhetoric of the body because academia encourages students and professors – especially professors – to ignore our bodies altogether.

Not quite what's expected in the Australian Graduate Certificate in Tertiary Education (GCTE).