Outlaws or In-Laws? Successes and Challenges in the Struggle for LGBT Equality

By Fisher, John | McGill Law Journal, October 2004 | Go to article overview

Outlaws or In-Laws? Successes and Challenges in the Struggle for LGBT Equality


Fisher, John, McGill Law Journal


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. …

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