Outlaws or in-laws? Successes and challenges in the struggle for LGBT equality.

• Author: Fisher, John
• Position: Lesbians, gays, bisexuals, and transgenders - Canada

In this lecture, the author canvasses the successes and challenges faced by Canadian sexual minorities over the last two decades. He traces the important role of the Canadian Charter of Rights and Freedoms in achieving equality for lesbians, gays, bisexuals, and transgendered ("LGBT") people. The value of the Charter in this struggle has not, however, been restricted to the courts, for, as the author illustrates, Charter challenges have also been an impetus for legislative action.

Through a review of recent cases, the author points out that while the Charter bas been an appropriate tool in the struggle for formal equality, in many cases, LGBT people have still not attained substantive equality. This, he asserts, requires that courts and legislators contextualize their decisions and their policies to reflect the reality faced by LGBT people. Contextualization is particularly important for creating an inclusive society, where members outside of the mainstream are not left behind. According to the author, it remains to be seen whether the Charter is a sufficiently flexible vehicle to protect the full diversity of LGBT communities.

Dans cette allocution, le conferencier passe en revue les reussites et les defis auxquels ont ete confrontees les minorites sexuelles du Canada dans les dix demieres annees. Il retrace le role primordial de la Charte canadienne des droits et libertes en faveur de l'egalite des personnes lesbiennes, gaies, bisexuelles et transgenres. Il constate par ailleurs que la pertinence de la Charte dans cette marche vers la reconnaissance n'a pas ete confinee aux tribtmaux. Comme l'illustre le conferencier, les recours fondes sur la Charte ont aussi encourage la mise en oeuvre d'initiatives legislatives.

Dans sa revue de la jurisprudence recente sur la question, le conferencier constate qu'en depit des progres accomplis vers l'egalite formelle grace a la Charte, les personnes gaies, lesbiennes, bisexuelles et transgenres ne beneficient toujours pas de l'egalite substantive. Pour y parvenir, l'auteur croit que les tribunaux et les legislateurs doivent tenir davantage compte, dans leurs decisions et leurs politiques, de la realite des personnes gaies, lesbiennes, bisexuelles et transgenres. Cette mise en contexte permettrait en particulier de creer une societe plus inclusive, dont les membres non majoritaires ne seraient pas ecartes. Selon le conferencier, il reste donc a voir si la Charte est un instrument suffisamment flexible pour proteger la pleine diversite des communautes gaies, lesbiennes, bisexuelles et transgenres.

Introduction I. Historical Overview II. More Recent Developments III. Courts or Legislatures: How Have These Changes Come About? IV. Formal Versus Substantive Equality in LGBT Charter Litigation V. Little Sisters Book and Art Emporium: A Case Study VI. Contextualizing Inequality VII. Systemic Discrimination and Remedial Issues Conclusion: Future Directions Introduction

This is an exciting and challenging time in the struggle for lesbian, gay, bisexual, and transgendered ("LGBT") equality. When I was asked to present this lecture, I was just stepping down after ten years with the national organization, EGALE Canada ("EGALE"), to work on international LGBT issues, soit was a natural time for me to reflect on the changes we have seen over the past ten years, as well as future directions for our communities.

While we have seen many successes in areas such as human rights protection, relationship recognition and, most recently, same-sex marriage--to the point where we are squarely recognized as legal in-laws--there also remain a number of areas in which we are regarded as legal outlaws, such as censorship, criminalization of LGBT sexualities, and transgendered rights.

The purpose of this discussion is to examine both the successes that have been achieved and the challenges that still remain in the struggle for LGBT equality, in order to consider some of the ways in which the Charter has served our communities well and some of its limitations as a vehicle for advancing social justice.

1. Historical Overview

   In the early history of our country, the law was not a tool for equality, but a source of repression of LGBT sexualities. (1) From 1892 to 1969, for example, certain forms of gay male sexual expression were criminalized, and gay men were vulnerable to indefinite incarceration as "dangerous sexual offenders". Between 1952 and 1977, "homosexualism" was a ground on which prospective immigrants could be denied entry into Canada and lesbian, gay, and bisexual immigrants were subject to the threat of deportation.

   In previous decades, lesbians, gays, and bisexuals were treated as mentally III and were subjected to conversion "therapies", including electroshock treatment. In 1973, the American Psychiatric Association concluded that homosexuality was no longer a mental illness, and homosexuality was removed from the Diagnostic and Statistical Manual of Mental Disorders. Even today, however, transgendered people are subject to psychiatric diagnosis under the Diagnostic and Statistical Manual.

   LGBT people have been excluded from a number of aspects of public life. For example, in the 1960s more than 8,000 gays and lesbians were investigated by the RCMP. The federal government paid a Carleton University researcher to design what became known as the "fruit machine", to help identify Canadians who were gay or lesbian. (2) During this period, approximately one hundred and fifty lesbian and gay federal civil servants resigned or were dismissed from their employment. LGBT people were not permitted, until the early 1990s, to participate openly in the armed forces.

   LGBT people have suffered similar discrimination in the private sector, in areas such as employment and housing, and in many jurisdictions we were not afforded the protection of human rights laws. LGBT people have been the targets of hate-motivated crimes and have frequently been deprived of adequate police protection. We have been subjected to verbal harassment and have been victimized by anti-lesbian, anti-gay, and anti-trans violence, in some cases resulting in death.

   LGBT people have also endured numerous damaging stereotypes, such as the myths that we are sexual predators, child molesters, and unfit parents. We have been stereotyped as unloving and incapable of personal commitment. Same-sex relationships have consequently been devalued and treated as unworthy of recognition and respect.

   In the past, same-sex partners were systematically excluded from numerous federal, provincial, and territorial statutes in areas such as family, immigration, tax, pension, and inheritance laws. The exclusion from these statutes has marginalized the individual partners in same-sex relationships and stigmatized our children. The absence of legal protection has had consequences far beyond the immediate denial of a benefit: the denial of equality can undermine self-confidence and self-esteem, and inhibit the ability of LGBT people to live full lives and be open with those clear to us.

2. More Recent Developments

   Much has changed in the ten years since I began working with EGALE on federal LGBT issues. Ten years ago, sexual orientation was not included in the Canadian Human Rights Act, (3) there was no protection in hate crimes legislation, and not a single federal statute recognized same-sex relationships.

   Even the Supreme Court of Canada had not yet recognized sexual orientation as an analogous ground of discrimination under section 15 of the Canadian Charter of Rights and Freedoms. (4)

   Ten years ago, I attended the 1994 International Year of the Family conference in Montreal, where, of course, there was no mention of same-sex families. Being somewhat new to LGBT advocacy in those days, I rather timidly approached the microphone and suggested that lesbians and gays have families too, which are entitled to equal recognition, only to be told that "this is a conference about families, not the promotion of homosexuality."

   What a difference ten years makes! Last year, Nunavut added sexual orientation to its human rights legislation, (5) with the result that sexual orientation discrimination is now prohibited in every jurisdiction of Canada, federally, provincially, and territorially. In 2002, the Northwest Territories became the first jurisdiction in Canada to add "gender identity" to its human rights legislation, ensuring that transgendered people are explicitly protected from discrimination.

   Full step-parent and third party adoptions by same-sex couples are now permitted in British Columbia, (6) Manitoba, (7) Newfoundland and Labrador, (8) the Northwest Territories, (9) Nova Scotia, (10) Ontario, (11) Quebec, (12) Saskatchewan, (13) and the Yukon Territory. (14) Alberta permits step-parent adoptions by same-sex couples, (15) but does not yet permit same-sex couples to adopt the child of a stranger. This means that same-sex couples are now permitted to adopt children in every province and territory of the country, except New Brunswick, Nunavut, Prince Edward Island, and, to some extent, Alberta, and it is clear that the laws of these provinces will ultimately be extended, either through political amendment or through a constitutional challenge. (16)

   A sequence of rulings by the Supreme Court of Canada paved the way for human rights protection and same-sex relationship recognition, culminating in the landmark 1999 judgment, M v. H, (17) in which the Court ruled by a majority of eight to one that the equality guarantees in the Charter require the equal treatment of same-sex relationships in Ontario's Family Law Act. (18) The Court also granted Ontario six months to change its laws, suggesting that it might wish to do so comprehensively. As made clear by Iacobucci J., the Court's decision would "affect numerous other statutes that rely upon a similar definition of the term 'spouse.'" He suggested that "[t]he legislature may wish to address the...