Outside/In: Lesbian and Gay Issues as a Site of Struggle in the Judgments of Justice Claire L'Heureux-Dube

• Author: Shelley A.M. Gavigan
• Pages: 347-365

Eighteen

Outside/In:

Lesbian

and Gay

Issues

as a

Site

of

Struggle

in the

Judgments

of

Justice Claire L'Heureux-Dube

SHELLEY

A.M.

GAVIGAN*

Introduction

I

have been asked

to

address

and

assess

the

contribution

of

Justice Claire

L'Heureux

Dube

to

lesbian

and gay

equality struggles,

a

contribution that

justly

has

been explicated, analyzed,

and

celebrated

elsewhere.1

Indeed,

after

my

research assistant

had

collected

a

dozen cases,

and

twice

as

many articles,

her

leave-taking

was

both

ominous

and

sceptical: "With

the

topic

you

have

given

yourself,

I

don't

know

how you are

going

to

find

something

new to

say."

Fair

enough.

For,

indeed, what

can be

said

of

Justice L'Heureux-Dube that

has

not

already been said:

of her

fearlessness,

her

tenacity,

her

passion,

her

com-

passion,

her

indefatigability,

her

unflinching commitment

to

equality,

and the

fact

she is not

afraid

of the

"F"

(for

feminist)

word,

not to

mention

the

"L"

(for

lesbian)

and

"G"

(for

gay)

words,

nor

does

she

hesitate

to

challenge

the

"really

Big F"

(for Family) word.

What

more

can be

said?

That

she has

never

been

afraid

of

bringing

the

outside

in.

That

she

starts with

the

experience

of

the

"other"—the

one or

ones whose voices

and

experiences have

not

been

welcome

or

well heard

by the

law.

In the

context

of

criminal

law,

she

starts

with

the

harm done

and the

experience

of the

victim

(a

challenge

for

many

of

us

schooled

in the

sensibilities

of the

subjectivist tradition

and

attentive

to the

rights

of the

accused).

In

equality litigation,

she

starts with

the

experience

of

the

equality-seeking group. When lesbians

and gay men

began taking their

347

348

ADDING

FEMINISM

TO LAW

lives

to the

Supreme Court,

she was not

afraid

of

what

she

saw. And, impor-

tantly,

she

incorporated

the

insights

of

feminism when

she

turned

her

mind

to

their claims.

The

Judgments

In

the

current context,

one

might

be

forgiven

for

succumbing

to the

tempta-

tion

to

adopt

the

generic "relationship recognition"

or

"equal families" gloss

that

is

often invoked

to

describe

the

lesbian

and gay

struggles

that

have been

or are

currently

before

the

Canadian courts. But,

as I

have argued elsewhere,

these cases have been drawn from

different

social sites

and

legal

contexts:2

they have involved gays

and

lesbians

as

unionized

workers

in the

public

sec-

tor3

and

their right

to

human rights protection

if

they work

in a

non-union-

ized

workplace

in the

quasi-private sector

in

Alberta.4

Many "same-sex

fami-

ly"

cases have

transcended

the

conventional

boundaries

of

family

law and

included claims

to

entitlement

for

social

benefits5

and

survivors'

benefits

under public pension

and

insurance

plans,6

or

challenges

to

adoption

and

child

welfare

legislation.7

In

fact,

only

one

lesbian case

in the

"conventional"

family

law

area reached

the

Supreme Court during Justice L'Heureux-Dube's

tenure

on the

Court: that

of M. v.

H.,

which involved

the

fallout

from

a

failed

lesbian

relationship

and the

claim

by one for

spousal

support

from

the

other.8

In

rereading Justice L'Heureux-Dube's judgments,

I am

struck

by the

consistency

and

clarity

of her

analysis when lesbian

and gay

issues appeared

before

her, whether

in the

context

of

entitlement work-related

benefits

(Mossop),

social benefits

(Egan)y

the

right

to

human rights protection

(Vriend),

the

definition

of

spouse

in

family

law

legislation

(M. v.

H.),

or the

policy

of a

Christian University

to

proscribe

"sinful

behaviours" such

as

homosexuality

for the

members

of its

students,

faculty,

and

staff,

and the

response

of the

provincial accreditation body

(Trinity

Western

University).9

If,

as

one

commentator observed,

the

Court

"fumbled"10

towards equality,

it was

not

because Justice L'Heureux-Dube ever dropped

the

ball, although

one

does

imagine

the

scrimmage

line—or

the

rugby

scrum—when

one

reads

the

4:4:1

split

or

8:1

lopsided decisions.

And

yet,

in a

struggle that surely

was not one

for

the

faint

of

heart

(in her

words,

the

"battle

for

equality"),11

Justice

L'Heureux-Dube appears

to

have been able

to

move

the

Court, when

one

con-

siders

the

ground gained between

her

1993 dissent

in

Mossop

(concurred

in

by

McLachlin

J.) and the

1999 decision

in M. v. H. (an

8:1

decision, with

the