Introduction.

• Author: Cooper, Davina

The McGill Law Journal has put together an interesting and diverse set of papers on sexuality and the law. My aim in this short introduction is to provide one pathway through the collection, which takes as its focus the problematic of juridically inscribed sexual equality. The special issue covers three broad, interconnecting areas: sexual identity, sexual practices, and sexual community. I will discuss each of them in turn.

Sexual Identity

Against a backdrop of ongoing struggles for formal equality internationally (e.g., Daniel Borillo and Thierry Pitois-Etienne as well as Carl Stychin), the weight of this collection is turned toward Canada as a place where direct legal discrimination against lesbians and gay men has largely been outlawed. Some mopping up remains; marriage, for instance, is not yet fully cleansed (see Martha Bailey); but, for many papers in this special issue, the larger question has become: where else is there for law to go (e.g., John Fisher, Robert Wintemute). In his paper, "Outlaws or In-laws?: Successes and Challenges in the Struggle for LGBT Equality", John Fisher argues that indirect discrimination constitutes the current battleground. He suggests that litigation has proven less successful where the law is neutral on its face but applied in a discriminatory way. Nicole LaViolette makes a similar point in relation to the discretionary application of immigration law to lesbian and gay applicants. Other contributors also remark on the difficulty, as well as the necessity, of challenging seemingly impartial laws whose impact on lesbian and gay citizens is both detrimental and disproportionate.

Yet, while some forms of indirect discrimination can be successfully tackled through the courts, contributors identify the difficulties and limits that confront the judicial pursuit of equality. Many of the arguments made here echo and confirm earlier critiques: for instance, the problem courts have in dealing with systemic forms of disadvantage; their difficulty in addressing multiple, intersecting inequalities; evidentiary biases; the legitimation of state power and violence; and the constitution of minorities as victims. But the papers also raise, albeit sometimes implicitly, other questions about how the law engages with sexual identity: namely, are all sexual identities to be protected and valorized; is being an "identity" reason enough to acquire juridical support; what, if anything, is particular or distinctive about being lesbian and gay; and does law have any legitimate role or place within the sexual arena, beyond supporting or enhancing difference?

The troubling character of the law's identity politics circulates through several contributors' discussion of indirect discrimination. For, if disproportionate impact is to be tackled, there needs to be a clear notion of when lesbians, gay men, or others are disproportionately harmed. If indirect discrimination occurs when our "differences" fail to be accommodated, we need to know what these differences are. While some contributors highlight non-monogamy, pornography, and enjoyment of collective sexual spaces, others emphasize the less heady differences that emerge in contexts where discrimination and oppression prevail. Yet, what also surfaces in attempting to pin down gay difference is methodological diversity. Where...