Outlaws or In-laws?: Successes and
Challenges in the Struggle
for LGBT Equality
John Fisher*
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 has 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 confrencier passe en
revue les russites et les dfis auxquels ont t
confrontes les minorits sexuelles du Canada dans les
dix dernires annes. Il retrace le rle primordial de la
Charte canadienne des droits et liberts en faveur de
lgalit des personnes lesbiennes, gaies, bisexuelles et
transgenres. Il constate par ailleurs que la pertinence de
la Charte dans cette marche vers la reconnaissance na
pas t confine aux tribunaux. Comme lillustre le
confrencier, les recours fonds sur la Charte ont aussi
encourag la mise en uvre dinitiatives lgislatives.
Dans sa revue de la jurisprudence rcente sur la
question, le confrencier constate quen dpit des
progrs accomplis vers lgalit formelle grce la
Charte, les personnes gaies, lesbiennes, bisexuelles et
transgenres ne bnficient toujours pas de lgalit
substantive. Pour y parvenir, lauteur croit que les
tribunaux et les lgislateurs doivent tenir davantage
compte, dans leurs dcisions et leurs politiques, de la
ralit des personnes gaies, lesbiennes, bisexuelles et
transgenres. Cette mise en contexte permettrait en
particulier de crer une socit plus inclusive, dont les
membres non majoritaires ne seraient pas carts.
Selon le confrencier, il reste donc voir si la Charte
est un instrument suffisamment flexible pour protger
la pleine diversit des communauts gaies, lesbiennes,
bisexuelles et transgenres.
* B.A., LL.B. (Hons) (Auck.); LL.M. (Queens). The title of this article is drawn from a handbook
prepared by the author for EGALE Canada (see Fisher, infra note 1). Contact EGALE Canada for
more details at
report for EGALE Canada, Equality in an Administrative State: A Report on Little Sisters Book &
Art Emporium v. Canada (Minister of Justice) (August 2002), which has served as a basis for certain
parts of this article. The text of this article is adapted from the lecture delivered by John Fisher at the
Faculty of Law of McGill University on 5 March 2004 as the keynote address of the McGill Law
Journal Annual Lecture Series.
McGill Law Journal 2004
Revue de droit de McGill 2004
To be cited as: (2004) 49 McGill L.J. 1183
Mode de rfrence : (2004) 49 R.D. McGill 1183
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 49
1184
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
1185
1185
1186
1190
1192
1194
1200
1206
1207
2004]
J. FISHER THE STRUGGLE FOR LGBT EQUALITY
1185
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, so it 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 marriageto the point where
we are squarely recognized as legal in-lawsthere 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.
I. 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 ill 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.
1 References for the historical information presented in this section are collated in EGALEs factum
(prepared by Cynthia Petersen, solicitor for the Intervener) to the Supreme Court of Canada in Egan
v. Canada ([1995] 2 S.C.R. 513, 124 D.L.R. (4th) 609 [Egan cited to S.C.R.]), in support of the
principle that sexual orientation is an analogous ground of discrimination. The Court relied upon
much of this information in Egan, ibid. at paras. 173-77. See also John Fisher, Outlaws and Inlaws:
Your Guide to LGBT Rights, Same-Sex Relationships and Canadian Law (Ottawa: EGALE Canada,
2004) for additional information on the historical treatment of LGBT people and same-sex
relationships.
[Vol. 49
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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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 dear to us.
II. 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.
2 Philip Hannan, The Feds and the Fruit Machine Capital Xtra! (25 March 1994) 11.
3 Canadian Human Rights Act, R.S.C. 1985, c. H-6. Many provinces and territories had acted to
prohibit sexual orientation discrimination, however, beginning with Quebec in 1977 (Charter of
Human Rights and Freedoms, R.S.Q., c. C-12, s. 10).
J. FISHER THE STRUGGLE FOR LGBT EQUALITY
2004]
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
1187
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
4 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11.
5 Human Rights Act, S.N. 2003, c. 12, s. 7; Human Rights Act, S.N.W.T. 2002, c. 18.
6 Adoption Act, R.S.B.C. 1996, c. 5, s. 5(1).
7 The Charter Compliance Act, S.M. 2002, c. 24.
8 Adoption Act, S.N.L. 1999, c. A-2.1, s. 20, as am. by An Act to amend the Adoption Act, S.N.L.
2002, c. 13, s. 10.
9 Bill 5, An Act to amend the Adoption Act and the Family Law Act, S.N.W.T. 2002, c. 6, received
Royal Assent on 19 June 2002. Bill 5 provides that it does not affect the Aboriginal Custom Adoption
Recognition Act, S.N.W.T. 1994, c. 26. This act and related case law (see e.g. Re Tagornak Adoption
Petition, [1984] 1 C.N.L.R. 185 (N.W.T.S.C.)) do not appear to limit the ability of same-sex couples
to adopt in accordance with Aboriginal custom.
10 Adoption laws in Nova Scotia were extended by the court in Re M. (S.C.) (2001), 194 N.S.R.
(2d) 362, 202 D.L.R. (4th) 172 (S.C. (Fam. Div.)). As a result of this decision, same-sex couples in
Nova Scotia now have the equal right to adopt, though the government has not yet updated the actual
adoption statute to reflect this change.
11 This has been the case since the decision in Re K. (1995), 23 O.R. (3d) 679,125 D.L.R. (4th) 653.
Subsequently, Ontario enacted An Act to amend certain statutes because of the Supreme Court of
Canada decision in M. v. H., S.O. 1999, c. 6. This legislation amends subsection 146(4) of the Child
and Family Services Act to permit adoption by any other individuals that the court may allow, having
regard to the best interests of the child (s. 6(c)). Although somewhat ambiguous, this provision must
be interpreted in light of the earlier court judgment, which ruled that it is unconstitutional to deny
same-sex couples the equal right to adopt.
12 Arts. 546, 555 C.C.Q.
13 The Adoption Act, 1998, S.S. 1998, c. A-5, 2, ss. 17, 23. The opposite-sex definition of spouse
was changed by The Miscellaneous Statutes (Domestic Relations) Amendment Act, 2001 (No. 2), S.S.
2001, c. 50, s. 2.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
1188
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
[Vol. 49
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 Ontarios 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 Courts 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 validity of these statutes … [and] ought to be
given some latitude in order to address these issues in a more comprehensive
fashion.19
Since that time, many governments across Canada have taken the hint, and
embarked on programs of wholesale legislative reform. In 2000, for example, the
Modernization of Benefits and Obligations Act20 extended some sixty-eight federal
laws to recognize same-sex relationships. In addition, there are currently four
Canadian provinces that have enacted some form of registered partnership or civil
union regime, each of which has its own unique features:
Nova Scotia was the first Canadian jurisdiction to adopt a registered
domestic partnership regime,21 on 30 November 2000. Couples have the
choice to register in order to have access to a more complete set of rights and
responsibilities than those accorded to common-law couples;
14 It should be noted, though, that the situation in the Yukon territory is somewhat ambiguous, since
the Yukons adoption legislation allows spouses to adopt, but does not define spouse: Childrens
Act, R.S.Y. 1986, c. 22, s. 79.
15 Miscellaneous Statutes Amendment Act, 1999, S.A. 1999, c. 26, s. 4, s. 25.
16 Adoption cases brought by same-sex parents have already been successful in Ontario, Nova
Scotia, and Alberta: see Re K., supra note 11; Re M. (S.C.), supra note 10; Re A (1999), 253 A.R. 74,
181 D.L.R. (4th) 300, 1999 ABQB 879.
17 [1999] 2 S.C.R. 3, 43 O.R. (3d) 254.
18 R.S.O. 1990, c. F.3.
19 M v. H, supra note 17 at para. 147.
20 S.C. 2000, c. 12.
21 Law Reform (2000) Act, S.N.S. 2000, c. 29; Justice Administration Amendment (2001) Act,
S.N.S. 2001, c. 5.
2004]
J. FISHER THE STRUGGLE FOR LGBT EQUALITY
1189
Quebecs civil union regime22 is deliberately designed to match as closely as
possible the ceremonial formalities of marriage. Couples who enter a civil
union assume comprehensive rights and responsibilities; common-law
couples have much more limited recognition;
Manitobas registered partnership regime, which has received Royal Assent
but is not yet in force,23 recognizes all common-law couples after they have
lived together for up to three years. By registering their relationship,
however, couples can avoid the waiting period and have instant recognition
regardless of how long they have been together. Unlike in Nova Scotia and
Quebec,
the rights and
responsibilities of registered couples and those of common-law couples.
is otherwise no difference between
there
Albertas partnership regime24 is unique in Canada. Alberta has chosen to
recognize all adult interdependent partners, regardless of whether they are
in a conjugal relationship or not. This means that siblings, caregivers, and
others can potentially have legal rights and responsibilities. Conjugal couples
are automatically treated as adult interdependent partners after they have
lived together for three years, or they can assume these rights and
responsibilities sooner, by entering into a written agreement.
Other Canadian jurisdictions have also extended their relationship statutes to
include same-sex partners.25 And, of course, the past year has seen tremendous
progress in the struggle for the equal right to marry, with appeal courts in Ontario,
British Columbia, and Quebec each unanimously affirming
is an
unconstitutional violation of Charter equality guarantees to deny same-sex couples the
right to marry, a position also recently adopted by the Yukon Territory Supreme
Court.26 The federal government decided not to appeal these cases, and on 9 October
that
it
22 An Act instituting civil unions and establishing new rules of filiation, S.Q. 2002, c. 6.
23 Through a series of three statutes (An Act to Comply with the Supreme Court of Canada Decision
in M v. H, S.M. 2001, c. 37; The Charter Compliance Act, S.M. 2002, c. 24; and The Common-Law
Partners Property and Related Amendments Act, S.M. 2002, c. 48), Manitoba has extended to
common-law partners, including those of the same sex, the rights and responsibilities of married
couples. The first two of these statutes have already been proclaimed in force, providing same-sex
couples with a significant number of rights and responsibilities. The third statute, the Common-Law
Partners Property and Related Amendments Act, deals with property issues (such as property
division upon relationship breakdown and inheritance rights) and also creates a system of registered
partnerships. This statute received Royal Assent on 9 August 2002, but has not yet been proclaimed in
force.
24 Adult Interdependent Relationships Act, S.A. 2002, c. A-4.5. This Bill received Royal Assent on 4
December 2002 and came into effect on 1 June 2003.
25 For example, British Columbia has systematically extended the definition of spouse to include
same-sex couples through statutes such as the Definition of Spouse Amendment Act, 1999, S.B.C.
1999, c. 29 and the Definition of Spouse Amendment Act, 2000, S.B.C. 2000, c. 24.
26 EGALE Canada Inc. v. Canada (A.G.) (2003), 225 D.L.R. (4th) 472, 107 C.R.R. (2d) 1, 2003
BCCA 406; Halpern v. Canada (A.G.) (2003), 65 O.R. (3d) 161, 225 D.L.R. (4th) 529 (C.A.);
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
1190
2003, the Supreme Court refused to allow anti-gay intervenors to appeal. As a result,
the right of same-sex couples to marry is now squarely recognized in three provinces
and one territory, representing more than seventy-five per cent of the Canadian
population.
[Vol. 49
Although we still await a final resolution of same-sex couples right to marry in
other jurisdictions across the country, through either adoption of a federal statute or
continued litigation, both the Quebec Court of Appeal and the Yukon Territory
Supreme Court recognized in recent judgments that the definition of marriage is
federal, and that the recent legal changes to the definition should apply equally across
the country.27
Equal recognition of our relationships has not always been advantageous for the
partners involved. For example, a partners income is often considered in determining
who is eligible for social assistance or other government benefit programs. Whether
or not this includes a same-sex partner will depend on the laws of the particular
province or territory. In Alberta, for example, a lesbian woman with four children had
her disability benefit reduced by six hundred dollars per month after she and her
partner were recognized as one of the provinces first adult interdependent
relationships.28
As laws have gradually changed, and more and more LGBT people have felt able
to be out and open about their sexual orientation and gender identity, there has been a
deepening public awareness that the myths and stereotypes often perpetrated against
LGBT people are inaccurate. Whole future generations of Canadians will grow up,
never knowing a time when same-sex couples could not get married. It seems from
this brief history that our status as legal in-laws is firmly entrenchedin some cases,
whether we want it or not!
III. Courts or Legislatures: How Have These Changes Come
About?
The Charter has clearly played a leading role in these developments. All too often
Parliament and the provincial legislatures have preferred to defer to the courts to
address issues that are thought to be politically contentiouswith the same politicians
frequently complaining about judicial activism when the courts fulfill their
responsibility to apply the Charter to remedy discriminatory laws.
Hendricks c. Qubec (Procureur gnral), [2002] R.J.Q. 2506 (Sup. Ct.), affd La Ligue Catholique
pour les Droits de lHomme c. Hendricks, [2004] J.Q. no 2593 (C.A.) (QL); Dunbar v. Yukon, 2004
YKSC 54, McIntyre J.
27 La Ligue Catholique pour les Droits de lHomme c. Hendricks, ibid. at paras. 19-28; Yukon v.
Dunbar, ibid. at paras. 22-23.
28 Tom Babin, Same-Sex Legislation Leads to Cutbacks in Couples Support FFWD Weekly 8:33
(24 July 2003), online: FFWD
J. FISHER THE STRUGGLE FOR LGBT EQUALITY
2004]
Lobbying alone has rarely resulted in proactive political progress. On those
occasions when legislative or policy change has been instigated by Parliament, it has
frequently only occurred when the government has been faced with imminent legal
challenges to a law or policy that could not be rationally sustained in the courts. For
example:
1191
Challenging the ban on homosexuals in the armed services:
In 1992, Michelle Douglas challenged the ban on lesbians and gays serving
in the armed forces. Although the federal government had previously
defended its policy vigorously, it agreed to change the policy only on the
very day of trial;29
Recognizing sexual orientation as a prohibited ground of discrimination in
the Canadian Human Rights Act:
In 1985, a Parliamentary committee travelled across Canada, hearing public
submissions on how Canadas laws should be changed to comply with the
equality guarantees of the Charter. In its landmark report, Equality for All,
the committee recommended in 1985 that the Canadian Human Rights Act
be amended to include sexual orientation as a prohibited ground of
discrimination.30 In 1986, the Government of Canada published its response
to the committees report, pledging to take whatever measures are
necessary to prohibit sexual orientation discrimination.31 Nonetheless,
despite persistent lobbying by EGALE and promises by successive ministers
of justice, no further action was taken until Charter litigation was launched
against the federal government. The Ontario Court of Appeal ruled in Haig v.
Canada32 in 1992 that sexual orientation must be read into the act as a
prohibited ground of discrimination. The federal government did not appeal
that ruling, but it was not until 1996 that the Canadian Human Rights Act
was finally amended by Parliament to explicitly include sexual orientation.
Challenging anal sex as obscenity in customs policies:
For years, Canada Customs had detained lesbian and gay materials at the
border. Policy memorandum D-911 set out the classes of material designated
obscene. This included all depictions or descriptions of anal sex. As a
result, even safer sex materials were detained or censored, at a time when
access to the information could have saved lives by informing the gay
29 Douglas v. Canada, [1992] 1 F.C.J. No. 948 (T.D.) (QL).
30 Canada, Equality for All: Report of the Parliamentary Committee on Equality Rights (Ottawa:
Queens Printer, 1985).
31 Department of Justice Canada, Toward Equality: The Response to the Report of the
Parliamentary Committee on Equality Rights (Ottawa: Minister of Supply and Services Canada,
1986) at 13.
32 (1992), 9 O.R. (3d) 495, 94 D.L.R. (4th) 1 (C.A.).
1192
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[Vol. 49
community about steps that would help reduce the risk of HIV. Canada
Customs systemic targeting of LGBT materials and bookstores was
challenged by the LGBT bookstore Little Sisters in the case of Little Sisters
v. Canada.33 It was only at trial that the federal government withdrew
depictions of anal sex from its list of obscene materials, although it otherwise
continued to defend its practices.
Challenging the exclusion of same-sex partners from the family class for
immigration purposes:
When Canadian Christine Morrissey tried to sponsor her Irish-American
partner, Bridget Coll, to immigrate to Canada, Immigration Canada refused
to process the application, on the basis that the family class was limited to
married, heterosexual couples, and there were no grounds on which the
same-sex partner of a Canadian could be sponsored to immigrate.34 On 14
January 1992, Morrissey filed a constitutional challenge to Canadian
immigration laws, arguing that the immigration regulations discriminated on
the basis of sexual orientation. In October 1992, Immigration Canada granted
Coll residency as an independent applicant. This meant that Morrissey and
Coll could live together in Canada, but enabled Immigration Canada to
maintain its discriminatory policy.
Early in 1993, twenty lesbian and gay Canadians filed complaints with the
Canadian Human Rights Commission over the refusal of Canadian
immigration law to recognize their relationships. Immigration Canada then
began granting same-sex partners permanent residence on humanitarian and
compassionate grounds, which enabled the usual selection criteria to be
waived on a case-by-case basis, but continued to exclude same-sex partners
from the family class. It was not until 2001 that the current Immigration and
Refugee Protection Act35 finally recognized same-sex partners as members of
the family class.
IV. Formal Versus Substantive Equality in LGBT Charter Litigation
Based on this summary of legislative response to legal action, it is apparent that
the Charter has not only served as a vital tool for advancing equality before the courts,
but also as a mechanism by which governments have ultimately felt compelled to
change discriminatory laws and policies when it has been clear that such laws and
33 Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R.
1120, 193 D.L.R. (4th) 193 [Little Sisters].
34 See Immigration chapter in Fisher, supra note 1; for information on Canadian immigration for
same-sex partners, see online: LEGIT
35 S.C. 2001, c. 27. The new legislation received Royal Assent on 1 November 2001 and came into
effect on 28 June 2002.
J. FISHER THE STRUGGLE FOR LGBT EQUALITY
2004]
policies were unlikely to withstand judicial scrutiny. At the same time, there are many
areas in which we remain legal outlaws. This invites the questions: what kinds of
legal challenges have been successful, which have not, and why?
1193
The same-sex marriage challenges, for example, while they have certainly
generated the most publicity, are not particularly complex legally. They represent
fairly straightforward applications of established Charter principles. Section 15 of the
Charter prohibits discrimination in the application of the law: people in opposite-sex
relationships can marry the partner of their choice; people in same-sex relationships,
until recently, could not. The Ontario Superior Court of Justice unanimously ruled on
12 July 2002 that the common-law definition restricting marriage to opposite-sex
couples violates the section 15 equality guarantees of the Charter, undermines the
human dignity of lesbians, gays, and bisexuals, and cannot be justified by the
government:
The restriction against same-sex marriage is an offence to the dignity of
lesbians and gays because it limits the range of relationship options available to
them. The result is they are denied the autonomy to choose whether they wish
to marry. This in turn conveys the ominous message that they are unworthy of
marriage. For those same-sex couples who do wish to marry, the impugned
restriction represents a rejection of their personal aspirations and the denial of
their dreams.36
This same conclusion has now been reached by a total of sixteen judges in three
provinces and one territory.37
Perhaps one of the reasons for the success of the marriage cases is that the
restriction on same-sex marriage constitutes a denial of formal equality, where same-
sex couples are denied a benefit available to opposite-sex couples. The same is true of
many of the other leading LGBT equality cases, ranging from Egan v. Canada,38 in
which a same-sex couple was denied the old age security spousal allowance available
to opposite-sex couples, to M v. H, which dealt with the exclusion of same-sex
36 Halpern v. Canada (A.G.) (2002), 60 O.R. (3d) 321, 215 D.L.R. (4th) 223 at para. 261 (Sup. Ct. J.
(Div. Ct.)), cited with approval by the BC Court of Appeal in EGALE Canada Inc. v. Canada (A.G.),
supra note 26 at para. 130.
37 That is, three judges in the Ontario Superior Court, three judges in the Ontario Court of Appeal,
three judges in the BC Court of Appeal, one judge in the Quebec Superior Court, five judges in the
Quebec Court of Appeal, and one judge in the Yukon. Although not included in the above count, even
Pitfield J. in the Supreme Court of British Columbia (EGALE Canada Inc. v. Canada (A.G.), [2001]
11 W.W.R. 685, 19 RFL (5th) 59, 2001 BCSC 1365) concluded that the denial of the right to marry
constituted a section 15 violation, although he would have upheld the violation under section 1. While
Charter rights do not depend upon a numbers game, the degree of unanimity in both trial level and
appeal courts since Pitfield J.s initial ruling does underline the extent to which courts have found the
denial of same-sex marriage to be a clear violation of Charter principles.
38 Supra note 1. Although the Court ultimately upheld the rights violation by a narrow five to four
majority under section 1, Egan nonetheless established the principle that sexual orientation is an
analogous ground of discrimination under section 15 and that it is a violation of section 15 to deny
same-sex couples equal relationship benefits.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
1194
partners from the spousal support provisions of Ontarios Family Law Act, to the
adoption cases,39 which have dealt with the fact that same-sex couples have been
denied the ability to adopt available to opposite-sex couples. In each of these cases,
the law on its face has excluded same-sex couples, usually through definitions of
spouse that impose an opposite-sex requirement, or in the case of marriage, a
definition that limits access to the institution to one man and one woman.
[Vol. 49
Where we have been less successful, however, is in cases where the
discrimination is less overt, where the law is neutral on its face, but is applied in a
way that systemically discriminates against LGBTs.
As long ago as the first section 15 equality case to reach the Supreme Court of
Canada, Andrews v. Law Society of British Columbia,40 the Supreme Court rejected
the similarly situated test and affirmed that the Canadian vision of equality is one that
embraces difference and pluralism rather than one that requires everyone to be the
same. As McIntyre J. wrote: It was a wise man who said that there is no greater
inequality than the equal treatment of unequals.41 Nonetheless, it is clear that courts
have been far less willing to find a law discriminatory when it is facially neutral.42 The
Little Sisters decision makes an interesting case study, since it involves a law that
incorporates a definition of obscenity that does not, in and of itself, single out
LGBTs for discriminatory treatment, but was nonetheless found to have consistently
been applied across a number of years in a way that systemically discriminated
against LGBT materials and booksellers.
V. Little Sisters Book and Art Emporium: A Case Study
Little Sisters Book and Art Emporium (Little Sisters) is a Vancouver bookstore
that caters to the lesbian, gay, and bisexual communities of that city. The inventory is
broad and includes LGBT literature, periodicals, travel information, academic studies,
HIV/AIDS safer sex advisory material, and LGBT erotica, although the Supreme
Court of Canada made it clear that it was not in the nature of a XXX Adult Store.43
Because the bookstore imported large quantities of material from the US, the
incoming materials were subject to inspection by Canada Customs (Customs)
officers. While Little Sisters foreign suppliers generally called for payment within
thirty days of shipment, Customs would frequently detain shipments resulting in
delays, sometimes for many months. Materials would often be seized or returned to
39 Re K., supra note 11; Re M. (S.C.), supra note 10; Re A, supra note 16.
40 [1989] 1 S.C.R. 143, 56 D.L.R. (4th) 1 [Andrews].
41 Ibid. at 164, citing Dennis v. United States, 339 U.S. 162 (1950) at 184, Frankfurter J.
42 One exception is Vriend v. Alberta ([1998] 1 S.C.R. 493, 156 D.L.R. (4th) 385), in which the
Supreme Court of Canada recognized that the exclusion of sexual orientation from Albertas human
rights legislation was not neutral since it had a disproportionate impact upon lesbians, gays, and
bisexuals.
43 Little Sisters, supra note 33 at para. 1.
J. FISHER THE STRUGGLE FOR LGBT EQUALITY
2004]
the vendor on the basis that they were obscene, within the meaning of the Customs
Act. Books that other stores could import without difficulty would be detained when
shipped to Little Sisters. Even HIV/AIDS literature was seized for being obscene.
1195
Little Sisters was rarely given reasons for the delay, seizure, or return. As a result,
for over fifteen years prior to the case, Little Sisters was engaged in ongoing battles
with Canada Customs. Little Sisters initiated legal action alleging that: they had been
discriminated against on the ground of sexual orientation, their freedom of expression
rights had been violated, the pattern of ongoing arbitrary detentions reflected systemic
shortcomings inherent in the statutory regime, and the legislation itself should
therefore be struck down as unconstitutional.
After hearing extensive evidence at trial, BC Supreme Court Justice Smith found
that Canada Customs had improperly misclassified, confiscated, prohibited, delayed,
and destroyed material imported by Little Sisters.44 He found that this treatment was a
product of systemic causes, including under-funding and poor training of Customs
officers. He further found that these failings had a differentially severe impact upon
small and specialty bookstores and, specifically, that they were caused by the
systemic targeting of Little Sisters importations in the [Vancouver] customs mail
centre.45
Justice Smith held, however, that the Customs legislation did not violate
subsection 15(1) of the Charter. Although the law had a disproportionately negative
effect on gays, lesbians, and bisexuals because of the importance of the literature to
these communities, he concluded that homosexual obscenity is proscribed because it
is obscene, not because it is homosexual. As such, it did not discriminate on the basis
of sexual orientation.
Justice Smith concluded that the Customs legislation did infringe subsection 2(b)
of the Charter. This breach was, in his opinion, justified under section 1. He held that
the objective of the legislation was to protect society from the harm caused by the
dissemination of obscene materials and that this objective was pressing and
substantial. Nevertheless, Justice Smith stated that the gravity of the systemic failures
in the administration of the Customs regime warranted a subsection 24(1) remedy. As
such, he made a declaration that the relevant provisions of the Customs legislation
have been construed and applied in a manner contrary to ss. 2(b) and s. 15(1) of the
Charter …
Little Sisters appealed to the BC Court of Appeal. The decision of the court was
split, two to one, with Justice MacFarlane writing the majority opinion (with Justice
Hall concurring) and Justice Finch (now Chief Justice) in dissent.46 Justice
44 Little Sisters Book and Art Emporium v. Canada (Minister of Justice) (1996), 131 D.L.R. (4th)
486, 18 B.C.L.R. (3d) 241 (S.C.).
45 Ibid. at para. 282.
46 Little Sisters Book and Art Emporium v. Canada (Minister of Justice) (1998), 160 D.L.R. (4th)
385, 125 C.C.C. (3d) 485 (B.C.C.A.).
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MacFarlane held that the Customs legislation did not offend subsection 15(1) either
on its face, or in effect. If applied correctly, he held, the legislation prohibits material
not because it is homosexual in nature, but because it is obscene. Justice MacFarlane
also agreed with the trial judges section 1 justification of the subsection 2(b)
infringement. He emphasized, however, that whether or not material is obscene is a
question to be determined by the generalnot lesbian, gay and bisexualcommunity
standards.
[Vol. 49
Justice Finch, in dissent, would have allowed the appeal and declared that the
customs legislation was unconstitutional insofar as it was used to prohibit the
importation of gay and lesbian materials. He distinguished the Supreme Courts
decision in R. v. Butler,47 which dealt with the tests for obscenity under the Criminal
Code in the context of heterosexual materials, because: (1) the Customs legislation is
a system of prior restraint as opposed to a punitive scheme like the Criminal Code,
and (2) unlike Little Sisters, Butler did not involve subsection 15(1) discrimination
issues.
Little Sisters appealed to the Supreme Court of Canada. Two decisions were
rendered. The majority was composed of Chief Justice McLachlin and Justices
LHeureux-Dub, Gonthier, Major, Bastarache, and written by Justice Binnie. They
held that, with the exception of a reverse onus provision, the legislation was
constitutional. The minority decision, which dissented in part, was written by Justice
Iacobucci and included Justices Arbour and LeBel. They decided that the whole
scheme was unconstitutional and that the Customs obscenity provisions should be
struck down.
On the issue of whether the Customs legislation was discriminatory, the majority
affirmed the trial judges finding that Little Sisters had been subject to differential
treatment when compared to importers of heterosexually explicit material. The
majority also held that this differential treatment was on the basis of enumerated or
analogous grounds under subsection 15(1) and that this treatment violated the
appellants sense of self-worth and human dignity. As Binnie J. stated:
the Customs treatment was high-handed and dismissive of the appellants right
to receive lawful expressive material which they had every right to import.
When Customs officials prohibit and thereby censor lawful gay and lesbian
erotica, they are making a statement about gay and lesbian culture, and the
statement was reasonably interpreted by the appellants as demeaning gay and
lesbian values. The message was that their concerns were less worthy of
attention and respect than those of their heterosexual counterparts.48
It is interesting to note that, even on the analysis of the majority, all branches of the
section 15 test appeared to be made out (differential treatment, based on an analogous
ground, resulting in the demeaning of human dignity). However, just as they would
47 [1992] 1 S.C.R. 452, 89 D.L.R. (4th) 449.
48 Little Sisters, supra note 33 at para. 123.
J. FISHER THE STRUGGLE FOR LGBT EQUALITY
2004]
decide on the issue of procedural flaws leading to infringements of subsection 2(b)
rights, the majority concluded that the source of the discrimination was the actions of
officials and the manner in which the system was implemented, not the legislation
itself.
1197
In the Courts view, the legislation called for the obscenity testa test that, the
majority felt, if properly implemented, should not adversely affect gays, lesbians, and
bisexualsto be applied to all materials equally, regardless of the subject matter or of
the sexual orientation of the importers and consumers. The legislation had not
offended subsection 15(1). It was the misuse of the legislative scheme that gave rise to
the discrimination. As such, no declaration of unconstitutionality could be made with
respect to the legislation. The minority agreed with this analysis. They too found that
there had been discrimination, but that the legislation was not at fault. Rather, as
stated by Iacobucci J., the Butler test does not distinguish between materials based
on the sexual orientation of the individuals involved or characters depicted. It seems
to me that the Butler test applies equally to heterosexual, homosexual, and bisexual
materials.49
The Court was clearly uncomfortable with the appellants argument that the
decision in Butler could be distinguished because it was made in the context of
heterosexual non-textual materials, and that gay and lesbian sexual imagery and text
is qualitatively different from heterosexual sexually explicit materials because of the
different role it plays in relation to gay and lesbian identity, dignity, self-worth,
community formation, health, and education.
The core issue on which the majority of the Court differed from the minority was
in its consideration of the appellants argument that the Customs regime was
inherently flawed such that it was incapable of being applied in a manner consistent
with expression rights. Some of the problems identified by members of the Court with
the current customs regime included:
inadequate training of customs officers;
insufficient understanding by Customs officers of the legal tests (e.g., need
for harm incompatible with proper functioning of society, artistic merit
defence);
insufficient knowledge of community standards and the culture the
materials were intended for;
discriminatory attitudes that influence Customs determinations;
discriminatory targeting of LGBT community establishments;
a presumption of obscenity, rather than a presumption in favour of free
expression;
49 Ibid. at para. 194.
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[Vol. 49
overbroad discretion, resulting in subjective decision-making by Customs
officers;
lack of time, staff, expertise, and resources to give materials proper
consideration or make proper determinations;
lack of adequate guidelines;
no reasons given for a seizure or detention of materials;
no ability for an importer to provide evidence or make submissions on an
initial determination;
insufficient consideration given to books or other textual materials;
undue processing delays, coupled with few statutory time frames;
material damaged, even when released as non-obscene;
no database of currently permitted or prohibited materials;
cost, time, and resource drain on importers; and
a statutory reverse onus provision, requiring importers to prove that detained
materials are not obscene.
The majority nonetheless held that, with the exception of the reverse onus
provision, all of these failures that impacted upon subsection 2(b), albeit egregious,
were attributable to the implementation and administration of the Customs regime,
rather than to the legislation itself. The majority distinguished cases such as R. v.
Morgentaler,50 Hunter v. Southam,51 and R. v. Bain,52 all of which involved statutes
that created procedures that had, in their implementation, violative effects and were
ruled unconstitutional. In these cases, the majority reasoned, the legislation conferred
a power that was amenable to abuse. In this case, the appellants were complaining of
an absence of sufficiently protective legislation. As such, the legislation was capable
of being applied constitutionally. While the implementation was flawed and, as such,
adversely affected the appellants subsection 2(b) rights, the legislation was not at
fault and, therefore, could not be ruled unconstitutional on the basis of these failings.
The only portion of the legislation ruled unconstitutional by the majority was the
reverse onus provision. As a result, the onus would in future be on the state to prove
that materials are obscene, not on the importer to disprove obscenity.
The majority also read in procedural safeguards in order to redeem flaws
inherent in the legislation and its application. For example, Binnie J. addressed the
50 [1988] 1 S.C.R. 30, 44 D.L.R. (4th) 385.
51 [1984] 2 S.C.R. 145, (sub nom. Canada (Combines Investigation Act Director of Investigation &
Research) v. Southam), 11 D.L.R. (4th) 641.
52 [1992] 1 S.C.R. 91, 87 D.L.R. (4th) 449.
J. FISHER THE STRUGGLE FOR LGBT EQUALITY
2004]
fact that the legislation failed to set any statutory time limits for a redetermination
under subsection 60(3) or section 63 of a finding of obscenity, other than requiring
that the decision be made with all due dispatch. Binnie J. simply interpreted this to
mean that the decision should be made within thirty days,53 thereby supplying the time
limit that the legislation itself had failed to establish.
1199
By tinkering with specific aspects of the legislation, such as the failure to
prescribe time limits and the reverse onus provision, the majority was able to avoid
assessing the systemic flaws inherent in the statutory regime viewed in its entirety.
The minority, on the other hand, traced all of the violations to the Customs
legislation itself. Iacobucci J. stated that:
the issue is … not solely whether the Customs legislation is capable of being
applied constitutionally, as Binnie J. suggests. Instead, the crucial consideration
is that the legislation makes no reasonable effort to ensure that it will be applied
constitutionally to expressive materials. It lacks an adequate process to ensure
that s. 2(b) rights are fully considered and respected. The Customs legislations
failure in this regard practically invites violations of the right to free
expression, which is exactly what has happened. It is the inevitable result of
leaving the protection of fundamental Charter rights solely to the good faith
discretion of delegated power.54
The minority felt that adequate legislative safeguards to protect freedom of expression
were essential if the state were to demonstrate that the legislation minimally impaired
Charter rights.
On the question of remedy, the majority recognized that there had been extensive
Charter violations that arose as a product of the operation of the Customs regime.
Binnie J. for the majority maintained the declaratory remedy imposed by the trial
judge. He also stated that the findings in the decision should provide the appellants
with a solid platform from which to launch any further action in the Supreme Court of
British Columbia should they consider that further action is necessary.55 He held that
in an action challenging a finding of obscenity, costs will usually be awarded against
the Crown if it loses the obscenity issue, and emphasized that costs can be awarded
on a more generous scale if the court feels that Customs officials have acted
oppressively.56
The minority rejected the majoritys declaratory relief as being insufficient. As
Iacobucci J. put it succinctly: Given [the fact that there were] grave systemic
problems, in the administration of the law … the primarily declaratory remedy relied
on by [the majority] is simply inadequate. Systemic problems call for systemic
53 Little Sisters, supra note 33 at paras. 92-94.
54 Ibid. at para. 211.
55 Ibid. at para. 158.
56 Ibid. at para. 107.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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solutions.57 The minority would, therefore, have declared the obscenity provision in
the Customs legislation to be of no force and effect and would have suspended this
declaration of invalidity for eighteen months in order to allow the government time to
remedy the Customs scheme.
[Vol. 49
VI. Contextualizing Inequality
As the above discussion demonstrates, there are a number of noteworthy features
in Little Sisters. In particular, there is a striking absence of queer contextualization in
the way the Court approached the case. Notwithstanding clear findings of fact by the
trial judge, affirmed by the Supreme Court, that the legislation results in systemic
discrimination against LGBT materials and bookstores and had undermined the
dignity of the appellants and the LGBT communities generally, all legal tests applied
in the case effectively screened out LGBT realities in assessing whether LGBT
materials meet the definition of obscenity, or in articulating community standards of
tolerance.
The majority judgment states that the legislation properly implemented or
properly administered58 is not unconstitutional. This overlooks the reality of the
appellants experience, which is that systemic flaws prevent the legislation from being
properly implemented in a manner consistent with the Charter. As the minority points
out, the state must justify the actual infringement on rights occasioned by the
impugned legislation, not simply that occasioned by some hypothetical ideal of the
legislation.59
Furthermore, although the Court identified the systemic nature of the problem, it
failed to provide a systemic remedy, instead leaving it up to individual booksellers to
continue to pour resources into challenging individual seizures under essentially the
same legal regime as the one that gave rise to systemic and repeated Charter
violations. Not surprisingly, Customs seizures of materials destined for Little Sisters
has continued, and the bookstore finds itself back in court, continuing to challenge
similar practices.
Similar concerns are raised by other cases in which contextual analysis is
necessary for a complete understanding of the community interests involved. For
example, the bawdy house provisions of the Criminal Code have increasingly been
used by the police to target LGBT establishments and bathhouses.
Under subsection 197(1) of the Criminal Code, a common bawdy-house means a
place that is
(a) kept or occupied, or
57 Ibid. at para. 253.
58 Ibid. at paras. 150, 153.
59 Ibid. at para. 219.
2004]
J. FISHER THE STRUGGLE FOR LGBT EQUALITY
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(b) resorted to by one or more persons, for the purpose of prostitution or the
practice of acts of indecency … 60
Subsection 210(1) of the Criminal Code prohibits anyone from keeping a common
bawdy house, and subsection 210(2) prohibits anyone from being found, without
lawful excuse, in a common bawdy house, which criminalizes people merely for
being present, regardless of their actual conduct.61 In a case dealing primarily with
heterosexual prostitution, the offence of keeping a common bawdy house was held
not to infringe the freedom of expression guarantees in subsection 2(b) of the Charter
of Rights, nor to be so vague as to violate the fundamental justice requirements of
section 7 of the Charter.62
Much like the obscenity provisions in the Customs regime, the indecency test
in the bawdy house provisions is neutral on its face, subjective in its application,
depends on community standards of tolerance,63 and has been used to target LGBT
establishments and practices.
As long ago as the early 1980s,64 these provisions were used to justify police raids
on gay bathhouses, but they have also been applied in more recent years. In March of
1996, for example, Toronto police launched a surprise raid on the gay strip club,
Remingtons, arresting nineteen men on public indecency and bawdy house charges.65
Police in Montreal also raided the gay strip club Taboo on 9 May 2003, arresting
twenty-three dancers, four clients, and seven managers on charges including public
indecency, being found in a common bawdy house, and keeping a common bawdy
house.66 As recently as 3 August 2004, authorities with Hamiltons Multi-Agency
Task Force raided a number of establishments, including a gay bathhouse, arresting
two patrons for alleged acts of indecency.67
The Calgary police raided Goliaths, a gay bathhouse, on 12 December 2002.
They arrested thirteen patrons, charging them with being found in a common bawdy-
house. Also arrested were managers and employees who were charged with keeping
a common bawdy-house. All but one of the patrons arrested chose to accept a plea
bargain, but one of the men is instead challenging the constitutional validity of the
60 Criminal Code, R.S.C. 1985, c. C-46.
61 Ibid.
62 Reference Re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123, [1990]
4 W.W.R. 481.
63 R. v. Tremblay, [1993] 2 S.C.R. 932 at paras. 61-63, 106 D.L.R. (4th) 413.
64 See R. v. Pisces Health Spa Ltd. (1981), 63 C.C.C. (2d) 427 (Alta. C.A.); R. v. Woszczyna (1983),
6 C.C.C. (3d) 221 (Ont. C.A.).
65 See Jill Bora, Remember Remingtons? Xtra! 319 (16 January 1997) 13.
66 See Paul Gallant, Montreal Cops Bust Strippers Xtra! (15 May 2003), online: xtra.ca
67 See Paul Gallant, Hamilton Bathhouse Raided Xtra! (4 August 2004), online: xtra.ca
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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bawdy house provisions. The managers have also pleaded not guilty, in a case being
heard separately.68
[Vol. 49
In a newspaper report of the hearing against those charged with keeping a
common bawdy house, it is apparent that the Crown is advancing the position that
there is no discrimination because similar treatment would have been applied to a
heterosexual establishment:
[Crown David] Torske says the bath house violates the community
standards of decency because men looking for a partner would lie naked in one
of the small bedrooms and fondle themselves, that gay pornography was
shown on the TV, in the common room and that the concession stand sold
lubricants and condoms.
He said similar charges would have been laid had the bath house catered to
heterosexuals.69
…
It is not at all self-evident, however, that the homosexual and heterosexual contexts
can be meaningfully equated. A heterosexual massage parlour may engage issues of
prostitution or exploitation of women, whereas in the context of a gay bathhouse, men
pay for entry into the premises where they may engage in consensual sex, usually
coming in through a locked main door (above which, in the Calgary case, a neon sign
even bore the words Gay Premises).
There is no question that police raids on queerspaces such as a gay bathhouse
constitute a fundamental assault on our identity and consensual expression of our
sexuality. This was particularly apparent in a raid by police on the Pussy Palace, a
lesbian bathhouse night in Toronto (although that raid was brought under liquor
licencing regulations rather than using the bawdy house provisions of the Criminal
Code). In that case, Justice Hryn condemned the use of male police officers in a raid
on a lesbian bathhouse event as analogous to a strip search and emphasized that the
male police officers knew the female patrons were in various states of undress and in
a highly sexualized atmosphere.70 The court found that the female patrons were
upset, frightened, embarrassed, and felt violated, intimidated and shocked.71 He
excluded all evidence obtained ruling that this was one of those clearest of cases
where the police conduct shows blatant disregard for the qualities of humanness
which all of us share.72 Although the focus of the Pussy Palace case was on the use
of male police officers in relation to matters of womens intimate sexuality, concerns
arise whenever vulnerable groups are subject to excessive policing of their consensual
sexual conduct.
68 See e.g. R. v. Zakreski, [2004] A.J. No. 595 (Prov. Ct. J.) (QL).
69 Bawdy House Trial Begins Calgary.cbc.ca (1 April 2004), online: CBC.ca
70 R. v. Hornick, [2002] O.J. No. 1170 at para. 108 (Ct. J.) (QL), Hryn J.
71 Ibid. at para. 80.
72 Ibid. at para. 132.
J. FISHER THE STRUGGLE FOR LGBT EQUALITY
2004]
The particular impact of state law or conduct on disadvantaged communities risks
becoming subsumed into a broader de-gendered inquiry so long as we are required to
construct an artificial equivalent other space for heterosexuals to see if police would
have treated such an establishment the same way, an approach that is difficult to
reconcile with the Courts rejection of the similarly situated test,73 or the requirement
of a contextualized approach to section 15 equality issues.
1203
As one observer of the Calgary trial has noted:
There has been no context given, the officers (all presumably heterosexual
men) had no understanding of what they were looking at or the context within
which such environments exist. …
…
Various comments about how dark it was, hot warm it was, about used
condoms in the trashcans in the rooms, public lewd masturbation in the porn tv
room. One investigator even wrote the tour of this den of iniquity is now over
in his notes!!
But of course, they are not biased or targeting the gay mens community … 74
Nor is it only cases involving LGBT sexualities that create concerns regarding the
need for contextualization. In Trinity Western University v. British Columbia College
of Teachers,75 the BC College of Teachers refused to approve a training program for
public school teachers run by a private evangelical university, Trinity Western
University (TWU) on the basis that the university required students entering the
program to sign an undertaking to refrain from behaviours that are biblically
condemned. These include but are not limited to … sexual sins including premarital
sex, adultery, [and] homosexual behaviour … 76
The Supreme Court of Canada found in favour of TWU by a majority of eight to
one (with LHeureux-Dub J. dissenting), and held that no evidence had been
presented to suggest that graduates of TWU were more likely to discriminate on the
ground of sexual orientation than graduates of other teacher training programs. Absent
such evidence, the Court felt that any particular incidents involving discriminatory
behaviour could be addressed by appropriate disciplinary action if and when they
arose.
While it is true that no evidence was presented to enable the Court to conclude
that graduates of TWU are more likely to discriminate than other graduates, it is
disturbing that the Court did not more fully recognize either the systemic obstacles
faced by LGBT youth in schools or the proactive role that teachers are expected to
fulfill as role models. The latter was acknowledged in Ross:
73 Andrews, supra note 40.
74 E-mail from Stephen Lock, gay activist and EGALE board member (2 April 2004).
75 [2001] 1 S.C.R. 772, 199 D.L.R. (4th) 1 [Trinity Western].
76 Ibid. at para. 4.
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A school is a communication centre for a whole range of values and
aspirations of a society. In large part, it defines the values that transcend society
through the educational medium. The school is an arena for the exchange of
ideas and must, therefore, be premised upon principles of tolerance and
impartiality so that all persons within the school environment feel equally free
to participate. As the Board of Inquiry stated, a school board has a duty to
maintain a positive school environment for all persons served by it.77
If the focus is exclusively on the specific actions of individual graduates, then the
concerns of the College of Teachers can, of course, be addressed by individual
disciplinary action against specific graduates. Viewed in a broader context, however,
it becomes apparent that the Courts more limited approach fails to take into account
the reality of LGBT youth struggling to deal with issues of self-acceptance in an often
hostile public education system. Much of this context, and relevant studies, were
presented by EGALE in its factum before the Court:
Many lesbians, gays and bisexuals, particularly youth, internalise the
prevailing message that they are not normal and consequently suffer insecurity,
depression, and shame. …
In the educational context, the suppression of references to lesbians, gays
and bisexuals creates a learning environment in which young people are raised
unaware of the diversity of families in Canadian society, and where the
contributions of lesbians, gays and bisexuals to Canadian history, art, literature,
culture, family and social life are systemically ignored or devalued. Young
people coming to terms with their sexual orientation may find themselves torn
between risking rejection, discrimination and abuse by coming out as
lesbian, gay or bisexual, or concealing their identity and feelings, leading to
loneliness, alienation and shame.
These messages of exclusion and not belonging are internalized by youth
who may later grow up to identify as lesbian, gay or bisexual, and create
problems such as a lack of self esteem, a high risk of parental rejection, peer
abuse, homelessness, school dropout, drug abuse, unsafe sexual behaviour and
prostitution. One of the most serious and tragic consequences of the lack of
adequate social support is the disproportionately high rate of suicide and
attempted suicide for young lesbians, gays and bisexuals, a factor recognized
by the Supreme Court of Canada.78
…
Because lesbian, gay, and bisexual youth are almost always minorities in
their own families, they do not enter the school environment with the same
77 Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825 at para. 42, 171 N.B.R. (2d)
321.
78 Egan, supra note 1 at 601; See also Health Canada, The Experiences of Young Gay Men in the
Age of HIV: A Review of Literature (Ottawa: Canada, 1996) at 12-13, 19-20; Ian T. Kroll & Lorne B.
Warneke, The Dynamics of Sexual Orientation & Adolescent Suicide: A Comprehensive Review
and Development Perspective (Calgary, 1995) 1-5; Being Out: Lesbian, Gay, Bisexual, &
Transgender Youth in BC: An Adolescent Health Survey (Burnaby, B.C.: McCreary Centre Society,
1999) at 6.
2004]
J. FISHER THE STRUGGLE FOR LGBT EQUALITY
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level of family support and understanding that other members of minority
groups do. Thus schools are an important second line of support for students
dealing with issues of sexuality, and can counter the effect of a hostile family
environment. The risk of suicide and other social problems such as
homelessness and unhealthy relationship patterns increase when youth have no
sources of support or even tolerance.
The impact of discrimination has been most noted in the educational
context, especially for lesbian, gay and bisexual students. Isolation has been
identified as the most relentless feature in the lives of most gay, lesbian and
bisexual youth. The environmental factors contributing to isolation have been
found to include lack of services, homophobia and denial of human rights
protections, lack of adult role models, hostile school environments, rejection by
religious groups, neglect by child welfare agencies and lack of training and
awareness. The attitudes contributing to these severe difficulties are a direct
result of insufficient support within the public education system.79
As Bruce MacDougall notes: The most important factor in the perpetuation of
homophobia and the marginalization of homosexuals, including self-hatred in
homosexuals, is the intense indoctrination in heterosexism that children experience. A
great deal of this indoctrination occurs in educational institutions.80
to overcome
This is the broader systemic context against which the concerns of the BC
College of Teachers must be considered. To what extent will an LGBT student,
struggling with harassment, seeking
isolation, perhaps even
contemplating suicide, feel able to approach a teacher whom he or she knows has
signed a statement that homosexuality is sinful and biblically condemned? If teachers
are to be role models and communicators of values, what message is sent by a public
school teacher training program, even one administered by a private university, which
maintains as an entry criterion the condemnation of homosexuality? While teachers
may be entitled to their private beliefs, is the BC College of Teachers not at least
entitled to be concerned when values inconsistent with the values of the public school
system are formally built into a teachers training program? Is it enough to expect
teachers merely to refrain from acts of discrimination, rather than being positive role
models by proactively contributing to an environment of pluralism and respect? Is the
BC College of Teachers not entitled to expect that teachers will go further than merely
not being part of the problem, but will also be part of the solution?
Much of this context was incorporated into the lone dissenting judgment of
LHeureux-Dub J.81 It is, however, a matter of concern that the broader systemic
79 Trinity Western, supra note 75 (Factum of the Intervenor, EGALE Canada, S.C.C. No. 2 7168 at
paras. 10-15) [references omitted].
80 Bruce MacDougall, Silence in the Classroom: Limits on Homosexual Expression and Visibility
in Education and the Privileging of Homophobic Religious Ideology (1998) 61 Sask. L. Rev. 41; See
also Elaine Lowe, ed., Safe Spaces: HIV Prevention for Gay, Lesbian and Bisexual Youth (Ottawa:
Canadian Public Health Association, 1998) at 5-8.
81 Trinity Western, supra note 75 at para. 81ff.
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context was not referred to in the judgment of the majority, which instead focused
exclusively on the narrow issue of teachers individual behaviours.
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VII. Systemic Discrimination and Remedial Issues
There is a close link between a courts approach to systemic discrimination under
section 15 and issues of remedy. If a court fails to recognize the problem as systemic,
it is likely that the remedy granted will be a narrow one that may address the
immediate issue before the court, but fails to address the core problem.
As noted previously, the remedy ultimately granted in Little Sisters did little to
address the broader flaws inherent in the system itself, notwithstanding the Courts
acknowledgement of a broad pattern of systemic discrimination
the
disproportionate targeting of LGBT materials and bookstores. In practice, many
materials are likely to simply be released by Customs on a case-by-case basis if
challengedwhich does nothing to preclude a further seizure of the next shipment.
in
Similarly, in Trinity Western, the Courts remedy was to recognize that specific
discriminatory acts by teachers could be the subject of disciplinary action, but not to
address the core conditions that might give rise to discriminatory conduct, such as a
training program based on discriminatory values.
A further example is the case of Chamberlain v. Surrey School District No. 36,82
in which the Supreme Court of Canada held that the Surrey School Board (the
Board) had no basis to prohibit the use of books depicting same-sex families in the
classroom. The remedy requested by the appellants was that the Board be directed to
approve the books for use. The Court found in favour of the appellants at every step
of the analysis until it came to the remedy, when the Court merely directed the Board
to reconsider the materials, even though the Board itself had acknowledged that the
only reason the books had been disallowed was their same-sex content, a factor found
by the Court not to be justifiable.
Upon reconsideration, the Board refused to approve the books a second time,
because according to one commentator, they found fault with the books grammar
[and] punctuation and had concerns that kids whose families objected to
homosexuality in the book werent portrayed equally with kids who thought that
having two moms or two dads was OK.83
In each of these casesLittle Sisters, Trinity Western, and Chamberlainthe
narrow focus of the remedy granted by the Court places the onus on members of a
disadvantaged group to relitigate a systemic issue time and again whenever they are
confronted with a discriminatory act.
82 [2002] 4 S.C.R. 710, 221 D.L.R. (4th) 156 [Chamberlain].
83 B.C. School Board Rejects Same-Sex Books CTV.ca (13 June 2003), online: CTV.ca:
J. FISHER THE STRUGGLE FOR LGBT EQUALITY
2004]
Conclusion: Future Directions
As this discussion illustrates, courts and legislatures have dealt successfully with
many of the easy cases of LGBT discrimination, often using the Charter as an
invaluable tool. Human rights protection, relationship recognition, even the right to
marrynotwithstanding its social controversyhave all been advanced through the
relatively straightforward application of established legal principles dealing with
denial of formal equality.
1207
We are now entering an era in which more complex issues arise, challenging
courts to look beyond facially neutral laws and recognize the systemic discrimination
inherent in their application, requiring courts to contextualize section 15 equality
claims in order to provide more nuanced analysis of the impact of laws and policies
upon disadvantaged communities, requiring them to fashion remedies that deal with
the root of the problem, rather than just its superficial symptoms.
We are also learning about the limitations of section 15. Although section 15
inevitably involves a comparative exercise, in the absence of a fully contextual
approach, courts are invited, for example, to compare police raids on gay bathhouses
with raids on heterosexual massage parlours, even though the nature, function, and
role of each within their respective communities may be quite different.
Of all the Charter provisions, section 15 has served as the primary vehicle for
advancing LGBT issues in the courts, but so long as courts give limited effect to
section 15 as a means of redressing systemic inequality, we may well see greater
prominence accorded in future litigation strategies to other Charter sections, such as
section 2 or section 7, whose role in enabling us to express and affirm our sexuality
and identities has not yet been fully explored.
Just as we move into these more complex areas, so too the LGBT communities
are being challenged to recognize our own diversity. Many members of the LGBT
communities see the struggle to end discrimination as a struggle to belong. Critics of
the directions adopted by LGBT community organizations have characterized the
same-sex marriage challenges, for example, as essentially assimilationist, while more
conservative elements within our own communities often disparage those who seek to
affirm issues of sex and sexuality as elements of gay identity. More marginalized
members of our own communities risk being left out of mainstream struggles, be they
people in non-traditional relationships, those on social assistance, those whose
experience of sexual orientation discrimination is compounded by other factors such
as race or disability, or transgendered, transsexual, or intersex people whose legal
rights remain largely unrecognized.
In my view, the responsibility of our community organizations is to maximize the
opportunity of all members of our communities to celebrate their identity free from
discrimination in a manner consistent with their personal aspirations, whether they be
mainstream or on the margins. Those who wish to marry should have that equal
choice, just as those who celebrate their sexuality through consensual activity in a
community bathhouse should be free to do so without state criminalization of their
consensual expression.
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Whether the Charter is a sufficiently flexible vehicle to protect the full diversity
of our communities, however, remains to be seen.
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