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Queering Law: Not by Vriend

  • Lise Gotell (a1)

Abstract

This article explores the legal and discursive impact of R. v. Vriend (1998), the Canadian Supreme Court's first unequivocal pro-gay rights ruling. While not questioning Vriend as a victory, it engages in a critical interrogation of the Court's reasoning. Deploying the deconstructive insights of queer theory, the article reveals the role of law in producing the rigidly demarcated category “gay/lesbian” and speculates on its enduring discursive legacy. Through a reliance on fixed sexual identity categories, the liberal legal framing of “sexual orientation” in Vriend works to reinforce normative heterosexuality and to privilege those claims that reflect the legal refraction of anti-homophobic struggles as pleas for minority rights. Arguing that the insights of queer theory/politics can and should be brought into a productive relationship with law, the article concludes with some thoughts on the project of “queering law.”

Cet article explore l'impact juridique et discursif de R. c. Vriend (1998), la première décision de la Cour suprême canadienne clairement en faveur des droits des gays. Sans mettre en cause la victoire que constitue l'arrêt Vriend, il interroge le raisonnement de la Cour. Il adopte la perspective déconstructiviste de la théorie queer pour révéler le rôle du droit dans la création d'une catégorie ‘gaie/lesbienne’ aux frontières rigides et soulever la question de son influence durable sur le plan du discours. En s'appuyant sur des catégories fermées de l'identité sexuelle, l'encadrement juridique libéral de ‘l'orientation sexuelle’ dans Vriend renforce une hétérosexualité normative et préfère traiter des plaintes qui reflètent la réfraction légale de luttes contre l'homophobie en tant que demandes de droits de minorités. Le texte suggère une relation productive entre le droit et les acquis de la théorie et des politiques queer et offre quelques réflexions sur le projet de ‘queering law’.

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1 [1998] 1 S.C.R. 493 [hereinafter Vriend].

2 The legislation at issue was the Individual Rights Protection Act, R.S.A. 1980, c.1–2 [as am.by S.A. 1985, c.33; as am. By S.A. 1990, c.23] [hereinafter IRPA]. After the initiation of Vriend, the legislation was amended and is currently known as Alberta Human Rights, Citizenship and Multiculturalism Act (Individual Rights Protection Amendment Act, S.A. 1996, c.25).

3 The Canadian Charter of Rights and Freedoms, s.7 Part I to the Canada Act 1982 (UK), 1982, c.11 [hereinafter the Charter]. The Attorney General of Alberta had argued that the absence of sexual orientation from the IRPA constituted simply a neutral silence, not a deliberate state action. The Court in Vriend, supra note 1, unanimously rejected this argument. First in Schachter (Schachter v. Canada [1992] 2 S.C.R. 679) and then in Eldridge (Eldridge v. British Columbia (A.G.) [1997] 3 S.C.R. 624), the Supreme Court accepted that underinclusive statutes can be considered expressions of public policy and thus can be reviewed under the Charter, pursuant to s. 32 (that states that the Charter applies to “all matters” within the authority of “Parliament” and the “legislatures of each province”). According to Cory J., the Alberta government's repeated and deliberate choice not to include sexual orientation in its human rights legislation could very well be considered a legislative “act,” Vriend, supra note 1 at para. 62.

4 S. 33 of the Charter, the “notwithstanding clause” reads as follows: (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in s. 2 or ss. 7 to 15 of this Charter. (2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration. (3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration. (4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).

5 Morton, T., “Vriend: The Negative Policy ConsequencesAlberta Civil Society Association (1998), online: ACSA <http://www.Pagusmundi.com/acsa/badpolicy.htm> (last modified: 04 October 1998).

6 R.S.O. 1990.C.F.3.

7 M. v. H. [1999] 2 S.C.R. 3.

8 Modernizing Benefits and Obligations Act, S.C. 2000, c. 12 (hereinafter Bill C-23). Bill C-23, although amended to ensure that an opposite sex definition of marriage is maintained, changes 68 federal laws to extend to both same-sex and opposite sex common law couples the same rights and obligations as heterosexual married couples. This is achieved by removing the word “spouse” and adding in the concept “common-law partner,” defined as a couple of the same or opposite sex who have lived together for a period of at least one year. This legislation enables gays, lesbians and bisexuals in conjugal relationships to claim their same-sex partners on income tax returns as dependants, claim medical insurance for their partners, access the “relocation of spouse provisions” in the Employment Insurance Act and claim survivor benefits upon the death of a partner. The legislation also extends many of the same obligations to same-sex common law couples, including conflict of interest legislation. Omitted from Bill C-23 were changes to immigration regulations. EGALE, Submission to the House of Commons Standing Committee on Justice and Human Rights, Bill C-23: The Modernization of Benefits and Obligations Act (Ottawa: 2000).

9 British Columbia, Quebec, Ontario, Manitoba and Saskatchewan have made numerous legislative changes to provide same-sex couples with many of the rights and responsibilities of opposite sex couples. British Columbia has, over the years, extended spousal rights to same-sex couples in laws dealing with such diverse issues as guardianship, medical decision-making, spousal support, pension rights, adoption, and inheritance rights. In May 2000, the Attorney General of British Columbia issued a written statement supporting the right of same-sex couples to marry, in response to an application by two women for a marriage license. In June, 1999, the National Assembly of Quebec voted unanimously to adopt Bill 32, which extended the definition of “spouse” in some 39 provincial laws and regulations to include same-sex couples. In October 1999, Ontario enacted legislation to extend 67 provincial statutes, albeit it by setting up a separate class for “same-sex partners.” In July, 2001, omnibus Saskatchewan legislation to extend marital rights and responsibilities to same-sex couples received Royal Assent. The Miscellaneous Statutes (Domestic Relations) Amendment Acts amended the definition of “spouse” in some 24 provincial statutes to treat same-sex couples equally with opposite- sex married couples, in areas including adoption. spousal support, inheritance rights, pensions, survivor benefits, and matrimonial property. Also in July, 2001, omnibus Manitoba legislation received Royal Assent. This legislation amends 10 other provincial statutes to extend rights and responsibilities to same-sex couples in areas such as superannuation, dependants' relief, family maintenance, survivor's benefits, pension benefits, and workers' compensation – although the Manitoba government made a deliberate decision to exclude adoption rights. Other provinces have taken an incremental and court-driven approach to spousal recognition, waiting to be pushed by judicial decisions before acting on a piecemeal and statute by statute basis. In April, 1999, Alberta amended its Child Welfare Act to permit step-parent adoptions, and further amendments to other laws have been proposed. In March, 2000, however, a private members bill was passed by the Alberta legislature that defines marriage as exclusively between a man and a woman and states that the government would use the notwithstanding clause if a court overturns the heterosexual definition of marriage. The Alberta government is resistant to the kind of comprehensive policy changes that have been enacted in many other provinces. EGALE, ibid.; EGALE, “Monthly Report” (July 2001), online: EGALE <http://www.egale.ca/documents/bulletin0107-e.htm> (last modified: July, 2001) [hereinafter “Monthly Report].

10 Little Sisters Book and Art Emporium v. Canada (Minister of Justice) [2000] 2 S.C.R. 1120 [hereinafter Little Sisters].

11 See e.g. Eaton, M., “Homosexual unmodified” in Herman, D. & Stychin, C., eds., Legal Inversions (Philadelphia: Temple University Press, 1995) 46; Stychin, C., “Essential Rights and Contested Identities: Sexual Orientation and Equality Jurisprudence in Canada” (1995) 8 Can. J. L. & Jur. 49; Gwilliam, J. E., “Censorship, Sexuality and the Possibilities of Legal Reform: or. Can We “Queer” the Canadian Charter?” (2000) 20 Can. Woman Studies 70.

12 Halley, J., “The Politics of the Closet: Towards Equal Protection for Gay, Lesbian and Bisexual Identity” (1989) 36 UCLA L. Rev. 915 at 937.

13 Fudge, J., “The Effect of Entrenching a Bill of Rights Upon Political Discourse: Feminist Demands and Sexual Violence in Canada” (1989) 17 Int'l. J. Soc. L. 445 at 450.

14 See Eaton, supra note 11; see also Stychin, supra note 11.

15 See e.g. Gwilliam, supra note 11; Smith, M., Lesbian and Gay Rights in Canada (Toronto: University of Toronto, 1999) at 148156 (hereinafter Lesbian and Gay Rights in Canada); Smith, M., “Political Activism, Litigation and Public Policy: The Charter Revolution and Lesbian and Gay Rights in Canada, 1985–1999” (2000) 21 Int. J. of Can. Studies 81 (hereinafter “Political Activism, Litigation and Public Policy”). Smith contends that the substantial changes in law and public policy that have occurred since the mid-1980s are “Charter-driven” but that the increasing hegemony of rights discourse and legal strategies must be understood as a product both of the entrenchment of the Charter and the mobilization of gay and lesbian social movement organizations.

16 S. 15(1) of the Charter reads, “[e]very individual is equal before and under the law and has the right to the equal protection and benefit of the law without discrimination, and, in particular without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

17 Williams, P., The Alchemy of Race and Rights (Cambridge: Harvard, 1991) at 162.

18 Stychin, supra note 11 at 49.

19 See e.g. Mandel, M., The Charter of Rights and the Legalization of Politics (Toronto: Thompson, 1994); Fudge, supra note 13.

20 “Political Activism, Litigation and Public Policy,” supra note 15 at 102.

21 Lesbian and Cay Rights in Canada, supra note 15 at 143–144.

22 See e.g. Morton, supra note 5.

23 Lahey, K., Are We Persons Yet? Law and Sexuality in Canada (Toronto: University of Toronto, 1999).

24 Ibid. at xv–xvi.

25 Alberta Human Rights and Citizenship Commission, “Commission Statistics” 2001, online: Aberta Human Rights and Citzenship Commission <http://www.alberta humanrights.ab.ca/publications/Res_Commission_Statistics.asp> (last viewed: 15 August, 2001).

26 Supra note 2.

27 Lahey, supra note 23 at 27.

28 Vriend, supra note 1 at para. 121.

29 Lajoie, A.et al., “When Silence is No Longer Acquiescence: Gays and Lesbians Under Canadian Law” (1999) 14 Can. J. L. & Soc. 101.

30 Foucault, M., The History of Sexuality: An Introduction, trans. Hurley, R. (New York: Vintage Boob, 1980).

31 See Eaton, supra note 11 at 49.

32 Foucault, supra note 30 at 43.

33 Gwilliam, supra note 11 at 74.

34 See Sawicki, J., Disciplining Foucault (New York: Routledge, 1991) at 22; as Sawicki explains, disciplinary power is exerted on the body and soul of the individual. It expands the power of the individual while simultaneously rendering her more docile. In modern society disciplinary power has spread through the production of certain forms of knowledge. Foucault emphasizes techniques of individuation such as the dividing practices found in medicine, psychiatry, criminology and their corresponding institutions, the hospital, they asylum and the prison. Disciplinary practices create the divisions between normal and deviant, healthy and ill, sane and mad, legal and delinquent, which because of their authority can be used as an effective means of normalization and social control.

35 See e.g. Smart, C., Law, Crime and Sexuality (London: Sage, 1995) at 73; Eaton, supra note 11 at 50–51.

36 Smart, C., Feminism and the Power of Law (London: Routledge, 1989).

37 Ibid. at 50–51.

38 Sawicki, supra note 34 at 41–42.

39 Kropp, D., “Categorical Failure: Canada's Equality Jurisprudence – Changing Notions of Identity and the Legal Subject” (1997) 23 Queen's L. J. 201 at 204.

40 Iyer, N., “Categorical Denials: Equality Rights and the Shaping of Social Identity” (1993) 19 Queen's L. J. 179; see also Stychin, supra note 11 at 52.

41 Vriend, supra note 1 at para. 46, Cory J.

42 Lahey, supra note 23 at 11–13; see especially Canada (A.G.) v. Mossop [1993] 1 S.C.R. 554. This case involved the inability of a gay man to claim bereavement leave upon his partner's father's death. Here, the Supreme Court found the relevant ground of discrimination to be “sexual orientation,” a category that at that time was not protected by Canadian Human Rights Act. While Mossop had claimed family status discrimination, the majority constructed this category as inherently heterosexual, so as to cover variations in heterosexual family forms. Thus family status was “heterosexualized” and Mossop was defined solely by his sexual orientation. As Lamer C.J.C. wrote, “Mr. Mossop's sexual orientation is so closely connected with the grounds which led to the refusal of the benefit that this denial could not be condemned as discrimination on the basis of family status without indirectly introducing into the CHRA the prohibition which Parliament specifically decided not to include in the Act.” (at 580). Mossop's legal identity is subsumed by the category “sexual orientation.” For a discussion see Kropp, supra note 39 at 221.

43 Lahey, supra note 23 at 13.

44 Haig v. Canada [1992] 9 O.R. (3d) 495 (CA.).

45 Canadian Human Rights Act, 1976–77, c. 33, s. 1 [hereinafter CHRA].

46 S. 15(1) of the Charter, supra note 16.

47 Andrews v. Law Society of British Columbia [1989] 1 S.C.R. 143.

48 Vriend, supra note 1 at para. 70–74.

49 Egan v. Canada (A.G.) [1995] 2 S.C.R. 513 [hereinafter Egan].

50 Vriend, supra note 1 at para. 82.

51 Ibid. at para. 90.

52 Ibid. at para. 90.

53 Ibid. at para. 97.

54 Ibid. at para. 100.

55 Ibid. at para. 82.

56 Ibid. at para. 84.

57 Ibid. at para. 90.

58 S. 1 of the Charter reads, “[t]he Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits as prescribed by law as can be demonstrably justified in a free and democratic society.”

59 Vriend, supra note lat para. 115.

60 Ibid. at para 119.

61 See e.g. Morton, supra note 5. Morton has been one of the strongest critics of the Vriend decision.

62 Vriend, supra note 1 at para. 150.

63 Ibid. at para. 156.

64 For a discussion of a minority rights approach to sexual orientation see Herman, D., Rights of Passage (Toronto: University of Toronto, 1994) at 43.

65 Vriend, supra, note 1 at para. 86

66 Ibid. at para. 84.

67 Supra note 12 at 960.

68 See Duggan, L., “Queering the State” in Duggan, L. & Hunter, N., eds., Sex: Sexual Dissent and Political Culture (New York: Routledge, 1995) at 184.

69 Strong-Boag, V.et al., “Introduction,” Painting the Maple (Vancouver: UBC Press, 1998) at 12.

70 L'Heureux-Dubé, C., “The Changing Face of Equality” (1999) 19:1 & 2Can. Woman Studies 30 at 32.

71 Majury, D., “Representing Gays and Lesbians in Law” in Ristock, J. & Taylor, C., eds., Inside the Academy and Out (Toronto: University of Toronto) 292 at 318; see also Kropp, supra note 39 at 228; Stychin, C., “Novel Concepts: A Comment on Egan and Nesbit v. the Queen” (1995) 6 Constitutional FORUM 101 at 103.

72 Vriend, supra note lat para. 185.

73 Ibid. at paras. 185–86.

74 Miron v. Trudel [1995] 2 S.C.R. 418 at paras. 148–49.

75 Vriend, supra note 1 at para. 186, L'Heureux-Dubé J.

77 Supra note 39 at 227, Kropp makes this argument referring to L'Heureux-Dubé J.'s reasons in Egan.

79 See Halley, supra note 12 at 931, Halley makes the argument that there are close ties between the legal concepts “discrete and insular minority” and “immutability” in American law. See also Kropp, supra note 39 at 228. The allusion to immutability may remain under the surface of L'Heureux-Dubé J.'s Vriend arguments, but it emerged more clearly in her opinion in Egan where she asserted that distinctions on the basis of sexual orientation are based “on an aspect of personhood that is quite possibly biologically based.” Egan, supra note 49 at 567.

80 Stychin, supra note 11 at 58.

81 Ibid. at 59.

82 Kropp, supra note 39 at 217.

83 Eaton, supra note 11 at 51. Eaton contends that the emergence of this dichotomy is linked to the legal articulation of essentialized sexual identities.

84 See e.g., Sedgewick, E. K., Epistemology of the Closet (Berkeley: University of California, 1990).

85 Eaton, supra note 11 at 66.

86 Fuss, D., “Introduction” in Fuss, D., ed., Inside/Out: Lesbian Theories, Gay Theories (New York: Routledge, 1991) 1 at 6.

87 Eaton, supra note 11 at 69.

88 See e.g. Egan, supra note 49.

89 Vriend v. Alberta [1998] 1 S.C.C. 493 (LEAF, Intervenor's factum); see Pellatt, A., “Equality Rights, Litigation and Social Transformation: A Consideration of the Women's Legal Education and Action Fund's Intervention in Vriend” (2000) 12 Can. J. Women & L. 117.

90 Vriend, supra note lat para. 77.

91 Eaton, supra note 11 at 67.

92 Gwilliam supra note 11 at 76.

93 Stychin, supra note 11 at 64.

95 Alberta Human Rights and Citizenship Commission, “Sexual Orientation,” online: Alberta Human Rights and Citizenship Commission <http:www.alberta human rights.ab.ca/publicationssexualorientation.htmb (last viewed: 15 August, 2001).

97 Supra note 11 at 64.

98 Duggan, supra note 68 at 184.

99 Vriend is a man who courageously endured massive public outing and a long political and legal battle for no personal gain. The addition of sexual orientation to Alberta's human rights legislation merely enabled him to mount a human rights complaint on the basis of sexual orientation discrimination, a step that he chose not to take. He is, nevertheless, an example of someone whose experience of inequality can be linked with his status as a gay man, in a system of thought that views grounds of discrimination as discrete and separable.

100 Garber, M., Vice Versa: Bisexuality and the Eroticism of Everyday Life (London: Hamish Hamilton, 1995) at 70.

101 Bristow, J., Sexuality (London: Routledge, 1997) at 225.

102 Colker, R., Hybrid: Bisexuals, Multiracials and Other Misfits under American Law (New York: New York University, 1996) at xv.

103 Lahey, supra note 23 at 23.

104 Vancouver Rape Relief v. B.C. Human Rights [2000] BCSC 889.

105 Iyer, supra note 40 at 118.

106 Stychin, supra note 11 at 21.

107 Ibid. Stychin makes this argument in relation to the legalistic construction of “sexual orientation” as an immutable aspect of identity.

108 Lesbian and Gay Rights in Canada, supra note 15 at 20.

109 “Political Activism, Litigation and Public Policy” supra note 15 at 102.

110 Duggan, supra note 68 at 181.

111 Halley, supra note 12 at 920.

112 Stychin, supra note 11 at 61.

113 Eaton, supra note 11 at 66.

114 Duggan, supra note 68 at 182.

115 Gotell, L., “Towards a Democratic Practice of Feminist Litigation: LEAF'S Evolving Approach to Equality” in Jhappan, R., ed., Women's Legal Strategies (Toronto: University of Toronto) draft at 36 [forthcoming 2002].

116 Pellatt, supra note 89.

117 LEAF, supra note 89.

118 Gotell, supra note 115.

119 Supra note 68 at 190.

120 For a discussion see “Political Activism, Litigation and Public Policy” supra note 15 at 100.

121 Supra note 8.

122 “Political Activism, Litigation and Public Policy,” supra note 15 at 103.

123 “Monthly Report,” supra note 9.

124 Supra note 11 at 68.

125 Supra note 36 at 5.

* I would like to thank the reviewers of this article for their constructive comments. I am also grateful to my research assistant, Leah Lis, for her assistance with proofreading and for her help with legal referencing.

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Queering Law: Not by Vriend

  • Lise Gotell (a1)

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