Opinions on Same-Sex Marriage and on the Whatcott Decision

April 2013

Opinion: More work to do on same-sex marriage issue

BY ROBERT LECKEY, SPECIAL TO THE GAZETTE

© Copyright (c) The Montreal Gazette

APRIL 10, 2013

MONTREAL — It’s a banner year for same-sex marriage. This June will mark 10 years since the first gay couples wed at Toronto city hall. Elected lawmakers are debating legislation on the subject in France and Britain. The U.S. Supreme Court will soon rule on it.

After a decade in Canada, there’s much to celebrate. But the anniversary also prompts reflection on analogous harms and injustices that equal access to marriage hasn’t solved, and might even have made worse.

Consider the legal problems same-sex marriage has solved. Most directly, it addressed a pressing exclusion for gay or lesbian couples who wanted to marry. Less directly, ending this discrimination may have had positive symbolic effects for gay and lesbian individuals, whether they would ever marry or not.

Conversely, same-sex marriage hasn’t solved other legal problems for those historically marginalized by traditional definitions of proper sexuality, family and gender identity. Think of transgender individuals. In many Canadian jurisdictions, they face serious obstacles in securing identity papers that reflect their chosen name and sex designation. Without appropriate identity papers, they confront daily difficulties in such areas as medical services, employment, social benefits and banking. Trans activists highlight other pressing issues, including the harms from the criminalization of sex work and changes to the refugee system.

Nor did opening up marriage to same-sex couples address the range of adult relationships that aren’t like marriage. Our laws and social policy still overlook other kinds of supportive, long-term relationships in which care is given and received and interdependence develops.

For example, the tax system restricts preferential treatment to spousal relationships, excluding others that may function similarly. So do pensions and employment benefits. Indeed, the current federal government has enriched the tax system’s rewards for traditional families. These regimes leave two or more siblings or close friends who live together for many years out in the cold.

Lawyers may forget, but not all problems in human relationships call for legal solutions. Marriage law now treats same-sex and different-sex couples identically. Unfortunately, same-sex and different-sex couples display another, disturbing similarity. Research on the rates of domestic violence and abuse within same-sex couples shows that domestic violence isn’t only a question of men against women.

The causes of abuse within same-sex relationships are complex. The stress for gay men and lesbians of growing up in a homophobic society is one factor. Another may be the relative lack of role models for healthy relationships. Beyond law reform, social measures are needed.

These examples highlight the abiding presence of disadvantage linked to sexuality, gender identity and family form. But why discuss these issues in relation to equal marriage? Surely same-sex marriage can’t have exacerbated such problems?

A worry that equal marriage may have made anything worse stems from the widespread view that it marked the end of the journey toward sexual or familial justice. Some people saw victory on same-sex marriage as the cue for everyone to take down the tent and go home.

Admittedly, the issues mentioned here don’t lend themselves to simple slogans as easily as the push for equal marriage. Building coalitions around them is difficult. In addition, they call for remedies in different spheres: legal, bureaucratic, social. Tackling them would require us to rethink fundamental assumptions about sexuality, kinship, gender identity and family.

As Canadians observe other countries’ struggles to achieve marriage equality, we can celebrate the courage and conviction of those who made change here. But we should seize this moment by taking stock of the work that lies ahead.

Robert Leckey teaches family and constitutional law at McGill University. Robert Leckey and the Institute for Gender, Sexuality, and Feminist Studies hosted a free public event, Radical Formations: Sex, Race, Trans, at 4 p.m. on April 12 in the McIntyre Medical Building, room 522: mcgill.ca/igsf/events.

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Opinion: Supreme Court decision in Whatcott case is fair and balanced

© Copyright (c) The Montreal Gazette

BY PEARL ELIADIS, SPECIAL TO THE GAZETTE

FEBRUARY 27, 2013

MONTREAL – On Wednesday, the Supreme Court of Canada issued its long-awaited decision in the Whatcott case. In a surprise unanimous ruling, the court upheld the constitutionality of human-rights legislation that prohibits hate speech. At the same time, it imposed limits, so that only hate speech that objectively exposes people to violence and discrimination, vilification and detestation will be prohibited.

This is a reasonable and balanced decision.

William Whatcott of Saskatchewan distributed published material vilifying homosexuals, describing them as diseased child predators. Among other things, Mr. Whatcott wrote that “for sodomites and lesbians, (the) civil law should discriminate against them. In 1968, it was illegal to engage in homosexual acts(;) now it is becoming illegal to question any of their sick desires. Our children will pay the price in disease, death, abuse and ultimately eternal judgment (.)”

Human-rights complaints were filed with the Saskatchewan Human Rights Commission, and a tribunal ruled that Whatcott had violated that province’s human-rights code. Subsequently, however, the ruling was overturned by the Saskatchewan Court of Appeal. To the shock of many human-rights lawyers, the court of appeal indicated in its ruling that while speech perpetrating hatred against people based on their religion or ethnicity is a well-recognized form of discrimination, whether such speech based on sexual orientation also falls into that category was still controversial. It found that Mr. Whatcott’s material condemned homosexuals’ behaviour but not homosexuals themselves.

The Supreme Court of Canada properly rejected this reasoning. It said that attacks that are framed so as to expose people of an identifiable sexual orientation to what could objectively be viewed as detestation and vilification constitute hate speech. Such speech cannot be dismissed as merely targeting the behaviour: it quite clearly targets people. The court focused on the objective effects of such speech.

The Whatcott ruling should provide comfort to those concerned about being found liable for “offending” others. The court said that one must look at the objectively verifiable effects of the speech, and not whether a person is merely affronted or offended.

The case is important for five reasons:

First, it confirms that controls — any controls — on speech are, on the face of it, a violation of the right to free expression under the Canadian Charter of Rights and Freedoms.

But second, it reaffirms that all rights, even free-speech rights, are subject to reasonable limits. While speech that “ridicules, belittles or otherwise affronts dignity” does not constitute hate speech per se, prohibiting speech “that exposes or tends to expose to hatred” is a reasonable limit that is demonstrably justified in a free and democratic society, the court said.

Third, it confirms the role of human-rights law and human-rights commissions in their important work in controlling speech that incites hate.

Fourth, it maintains the constitutionality of civil (or non-criminal) prohibitions on hate speech in human-rights laws. We are not left with only heavy-handed criminal prosecutions as a sole response. Civil libertarians should be pleased with this result.

Fifth, the court was unanimous. It put to rest uncertainty about the law on hate speech that has been circulating for several years.

The standard set by the court as to what constitutes hate speech is very high. The speech must seek to marginalize people, subjecting them to vilification and detestation and affecting their social status and acceptance in the eyes of the majority. “The focus must be on the likely effect of the hate speech,” the court said.

There should no longer be any question, at least in our society, as to whether some people, by virtue of attributes that are protected by law, are less human than others.

Pearl Eliadis is a Montreal human-rights lawyer. She was part of the legal advisory team for the African Canadian Legal Clinic of Toronto, an intervenor in the Whatcott case. She teaches civil liberties at McGill University.

© Copyright (c) The Montreal Gazette

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