Robert Leckey is the dean of the Faculty of Law at McGill University
After 14 years, we have chipped a few of the dishes we received as wedding presents. From one angle, our marriage isn’t long. From another, it spans most of the time since the Ontario Court of Appeal made history, on June 10, 2003, by allowing this country’s first same-sex marriages. Like other anniversaries, this one prompts celebration of the past and reflection on future challenges and work.
What has equal marriage changed in Canada? Social scientists are still working out the relationship between attitudinal change and legal change. Canadian society had moved a long way towards acceptance of same-sex relationships by 2003. Still, it seems that access to legal marriage has helped some heterosexuals to understand gay and lesbian couples’ commitment as equivalent to theirs.
For several years, conservative politicians spoke of reversing the change. Such talk has settled down. Access to marriage, formalized by Parliament in the Civil Marriage Act of 2005, has quietly become an established fact of Canadian society.
The Prime Minister has apologized to LGBTQ Canadians for laws and policies that produced state-sponsored discrimination and violence.
Many provincial education ministries have taken steps to address and prevent bullying for LGBTQ kids and parents. Measures include policies, training for teachers and other staff, and curricular changes. As in Ontario, some of these advances have triggered backlash.
Legal changes to recognize LGBTQ people’s role as parents have been spottier. Family situations have inspired judges to adapt old laws. Some provincial legislatures have gamely taken up the task of adapting parentage law to contemporary realities. Still, some family situations remain vulnerable, threatened rather than stabilized and supported by law.
Equal marriage did not resolve all legal issues for our LGBTQ communities. Transgender people, including Indigenous trans people and trans people of colour, experience violence at rates grossly disproportionate to their numbers. Trans people still face barriers in accessing proper identity papers, services such as health care, and even safe washrooms. Recent federal legislation may represent a step forward. But there is a long way to go, including within the provincially run bureaucracies.
Our criminal law can still come down unjustifiably hard on members of the LGBTQ community. Canada retains the dubious distinction of being a world leader in prosecuting people living with HIV. Under Canadian law, a person living with HIV can be charged with aggravated sexual assault for having unprotected sex without disclosing that status. Charges can arise even where, thanks to effective medical treatment, the chance of exposure was virtually nil. Prosecutorial services, especially in Ontario, enforce this law vigorously.
Outside of Canada, the portrait of the past 15 years is also mixed. Since 2003, a staggering number of countries have followed us in recognizing same-sex marriage. Our neighbours to the south did so in 2015. They caught up with us remarkably fast. In the same month that the Ontario court legalized equal marriage, the U.S. Supreme Court overturned a criminal ban against sodomy. In Canada, Parliament lifted that ban in the late 1960s.
In many places, the portrait is grimmer yet. More than 70 countries maintain criminal laws against sexual activity by LGBTQ people. In nearly a dozen countries, homosexuality may be punishable by death. In some states, the government promotes or actively participates in homophobic violence. Strikingly, in some places, the circumstances of LGBTQ people have worsened. Think of state-sanctioned repression and violence in Russia and Uganda.
The past 15 years have seen many substantial gains in rights and social acceptance for LGBTQ folks. But such gains are neither universal nor immune from reversal. In the face of continuing denials of LGBTQ claims to equal dignity and respect, we must remain vigilant and keep solidarity with those whose rights and security are less assured.