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Essential Rights and Contested Identities: Sexual Orientation and Equality Rights Jurisprudence in Canada

Published online by Cambridge University Press:  09 June 2015

Carl F. Stychin
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In this article, I shall examine sexual orientation as a human rights issue. The reasons why discrimination on the grounds of sexual orientation should be considered an issue of human rights have been articulated by others, and I do not propose to repeat their arguments here. Rather, I seek to examine in a more critical way some of the analytical problems that may arise in fashioning human rights protection. While the substantive goals of human rights struggles are surely commendable—freedom from persecution and from invidious discrimination, or more positively framed claims to the means necessary to live a decent life—the discourse of rights has been the subject of critique, for example, by the Critical Legal Studies movement in the United States. Rights claims, it has been argued, reinforce the separation of the individual from community. The focus on abstract rights undermines the substantive claims of groups and individuals within society by reifying formal (but ultimately alienating) individual rights. Of course, the CLS critique itself has been subjected to sustained criticism, particularly from the schools of Feminist Legal Theory and Critical Race Theory (and the intersection of the two). The CLS attack on rights is criticized for its failure to recognize both the substantive and the symbolic impact of concrete rights victories. Furthermore, it has been argued that rights struggles can be contradictory and complex.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 8 , Issue 1 , January 1995 , pp. 49 - 66
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1995

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References

An earlier version of this article was presented at the Workshop, W.G. Hart “Understanding Human Rights”, held at the Institute for Advanced Legal Studies, London, July 1994.Google Scholar I thank the participants of the Workshop for their helpful comments. The proceedings of the Workshop are forthcoming in Gearty, Conor & Tomkins, Adam eds, Understanding Human Rights (London: Mansell, 1996).Google Scholar I thank the editors and the Institute for Advanced Legal Studies for permission to reproduce this article. I also thank Leslie Green for his insightful comments.

1. See e.g., Wintemute, R. Sexual Orientation Discrimination and Constitutional Human Rights Law (Oxford: Oxford University Press, 1995);Google Scholar Waaldijk, K. & Clapham, A. eds, Homosexuality: A European Community Issue, (Dordrecht, Neth.: Nijhoff, 1993);Google Scholar Heifer, L.R. ‘Lesbian and Gay Rights as Human Rights: Strategies for a United Europe#x2019; (1991) Virginia J. of Internat#x2019;l L. 157.Google Scholar

2. See generally Gabel, P. ‘The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves’ (1984) 62 Tex. L. Rev. 1563;Google Scholar Gabel, P. & Harris, P. ‘Building Power and Breaking Images: Critical Legal Theory and the Practice of Law’ (1982–83) 11 N. Y. U. Rev. of L. and Soc. Change 369;Google Scholar Kennedy, D. ‘The Structure of Blackstone’s Commentaries’ (1979) 28 Buff. L. Rev. 209;Google Scholar Tushnet, M. ‘An Essay on Rights’ (1984) 62 Tex. L. Rev. 1363.Google Scholar

3. See e.g., Matsuda, M. ‘Looking to the Bottom: Critical Legal Studies and Reparations’ (1987) 22 Harv. Civil Rights – Civil Liberties L. Rev. 323;Google Scholar Schneider, E. ‘The Dialectic of Rights and Politics: Perspectives from the Women’s Movement’ (1986) 61 N. Y. U. L. Rev. 589;Google Scholar Williams, P. The Alchemy of Race and Rights: Diary of a Law Professor (Cambridge, MA: Harvard University Press, 1991);Google Scholar Williams, R.A. Jr., ‘Taking Rights Aggressively: The Perils and Promise of Critical Legal Theory for Peoples of Color’ (1987) 5 Law and Inequality 103.Google Scholar

4. See generally Herman, D. Rights of Passage: Struggles for Lesbian and Gay Legal Equality (Toronto: University of Toronto Press, 1994).Google Scholar

5. For a discussion of one such struggle in Ontario, see Herman, D. ‘The Politics of Law Reform: Lesbian and Gay Rights Struggles in the 1990s’ in Bristow, J. & Wilson, A. eds, Activating Theory: Lesbian, Gay, Bisexual Politics (London: Lawrence & Wishart, 1993) at 245.Google Scholar

6. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, J 982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.l 1, s.15.

7. (1989)56D.L.R.(4th)l.

8. Ibid, at 18.

9. Ibid.

10. Ibid, at 33.

11. Ibid, at 32.

12. See e.g., Mahoney, K. ‘The Constitutional Law of Equality in Canada’ (1992) 44 Maine L. Rev. 229;Google Scholar Sheppard, N.C. ‘Recognition of the Disadvantaging of Women: The Promise of Andrews v. Law Society of British Columbia’ (1989) 35 McGill L. J. 207;Google Scholar Colker, R. ‘Section 1, Contextuality, and the Anti-disadvantage Principle’ (1992) 42 U. of Tor. L. J. 77.CrossRefGoogle Scholar

13. See Iyer, N. ‘Categorical Denials: Equality Rights and the Shaping of Social Identity’ (1993) 19 Queen’s L. J. 179.Google Scholar

14. Ibid, at 186.

15. Critical Race Theorists in America have highlighted the position of women of colour in this regard; see e.g., Crenshaw, K. ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ (1989) U. of Chicago Legal Forum 139;Google Scholar Grillo, T. & Wildman, S. ‘Obscuring the Importance of Race: The Implications of Making Comparisons Between Racism and Sexism (Or Other-Isms)’ (1991) Duke L. J. 397;CrossRefGoogle Scholar Harris, A. ‘Race and Essentialism in Feminist Legal Theory’ (1990) Stan. L. Rev. 581.CrossRefGoogle Scholar For an analysis of complex inequality claims in the context of sexual orientation, see Eaton, M. ‘Patently Confused: Complex Inequality and Canada v. Mossop’ (1994) 1 Rev. of Con. Stud. 203 Google Scholar [considering the relationship of sexual orientation and family status discrimination]; Eaton, M. ‘Homosexual Unmodified: Speculations on Law’s Discourse, Race, and the Construction of Sexual Identity’ in Herman, D. & Stychin, C. eds, Legal Inversions: Lesbians, Cay Men, and the Politics of Law (Philadelphia: Temple University Press, 1995)Google Scholar [considering the relationship of race and sexual orientation].

16. See supra note 5.

17. It should be noted, however, that the Supreme Court of Canada has yet to rule directly on this issue.

18. Haig v. Canada, (1992) 9 O.R. (3d) 495 (C.A.). A similar judgment, turning on the absence of ‘sexual orientation’ in the Alberta Individual Rights Protection Act, was reached in Vriend v. Alberta, [1994] 6 W.W.R. 414 (Alta.Q.B.).

19. Haig, ibid, at 503.

20. Ibid, at 508.

21. See e.g., the dissenting judgment of Linden, J. in Egan et al. v. The Queen in Right of Canada (1993), 103 D.L.R. (4th) 336 Google Scholar at 355: ‘As with enumerated grounds such as race and sex, a person’s sexual orientation has been a basis for discrimination and persecution throughout history’.

22. Vance, C.S. ‘Social Construction Theory: Problems in the History of Sexuality’ in Crowley, H. & Himmelweit, S. eds, Knowing Women: Feminism and Knowledge (Milton Keynes: Open University Press, 1992) 132 at 134.Google Scholar

23. See generally Stein, E. ed., Forms of Desire: Sexual Orientation and the Social Constructionist Controversy (New York: Routledge, 1992).Google Scholar

24. Andrews, supra note 7 at 39.

25. Hogg, P. Constitutional Law of Canada, 3rd ed. (Toronto, ON: Carswell, 1992) at 1167–71.Google Scholar

26. Ibid, at 1167.

27. Ibid, at 1168.

28. Ibid, [emphasis mine].

29. Ibid, at 1170.

30. (1989), 1F.C. 321 at 370–71.

31. See e.g., Bakan, J. ‘Book Review: Hogg, P. Constitutional Law of Canada’ (1993) 51 The Advocate [British Columbia] 607.Google Scholar

32. It has been argued that the recent explosion of ‘scientific’ explanations of ‘homosexuality’ is giving rise to a renewed interest in immutability arguments within legal (and other) discourses; see generally Halley, J. ‘Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immutability’ (1994) 46 Stan. L. Rev. 503.CrossRefGoogle Scholar

33. Supra note 13 at 189. The relationship between the concepts of ‘immutability’ and ‘essentialism’ is not uncontested. I use the terms in the sense in which they have been employed by Janet Halley. See Halley, J. ‘Sexual Orientation and the Politics of Biology’, ibid, at 516–17:Google Scholar

an essentialist view of homosexual orientation claims that it is a deep-rooted, fixed, and intrinsic feature of individuals. This essentialist view assumes that homosexual orientation is determined (by nature or nurture), not chosen... The constructivist view of homosexual orientation claims that it is a contingent, socially malleable trait mat arises in a person as she manages her world, its meanings, and her desires. The pro-gay argument from immutability is, on these definitions, essentialist. When the pro-gay argument from immutability adds a reliance on biological causation theories, it merely locates the source of determination in nature.

34. Supra note 5 at 250.

35. It has been argued that the essentialist/construcuvist dispute is in fact a cluster of separate controversies, such as realism/nominalism; determinism/freedom; nature/nurture; biology/culture; binarism/pluralism. See generally Stein supra note 23. However, I remain of the view that the essentialist/constructivist divide is a meaningful way of analyzing legal discourse in this area.

36. Epstein, S. ‘Gay Politics, Ethnic Identity: The Limits of Social Constructionism’, in supra note 23 at 250–51.Google Scholar

37. I do not want to suggest by any means that all ‘pro-gay’ participants in the judicial, activist, and political arenas advocate an essentialist approach. On the complexity of the debates in Canada and for examples of anti-essentialist arguments, see Cossman, B. ‘Family Inside/Out’ (1994) 44 U. of Tor. L. J. 1;CrossRefGoogle Scholar Freeman, J. ‘Defining Family in Mossop v. DSS: The Challenge of Anti-Essentialism and Interactive Discrimination For Human Rights Litigation’ (1994) 44 U. of Tor. L.J. 41.CrossRefGoogle Scholar

38. I agree with Susan Boyd that useful insights can be gleaned both from an analysis of ideology and from discourse theory. See Boyd, S. ‘Some Postmodernist Challenges to Feminist Analyses of Law, Family and State: Ideology and Discourse in Child Custody Law’ (1991) 10 Can. J. of Family Law 79 at 98Google Scholar: ‘Ideology cannot be reduced to discourse because one loses a sense of how discourses have wide ramifications and connections with material relations. Nor can discourse be reduced to ideology, as the concept of discourse allows us to focus on sites in which particular knowledges, including counter discourses, are produced, and is a more particularistic concept in this regard’.

39. Supra note 5 at 251.

40. See Kimmel, M.S. ‘Sexual Balkanization: Gender and Sexuality as the New Ethnicities‘ (1993) 60 Social Research 571 at 579Google Scholar, for a discussion of empirical research conducted on essentialist/social construction positions amongst lesbians and gay men (citing Whishman, V. ‘The Social Construction of Essentialism among Gay Men and Lesbians’, unpublished Ph.D. dissertation, New York University, 1992).Google Scholar

41. Ibid.

42. I am not arguing that law alone has the power so radically to alter the position of gay men within society. Rather, I aim simply to highlight the different positions occupied by lesbians and gay men within the social order and the logical outcome of essentialist thinking.

43. For an example of this failure to distinguish the material reality of life as a lesbian versus gay man, see the judgment of Linden J. in Egan supra note 21 at 355:: ‘Gay men and lesbians are legally, economically, socially and politically disadvantaged’. Linden J. nowhere seeks to distinguish the ways in which members of the two groups may be differently positioned. While lesbians qua women undoubtedly are economically disadvantaged in society (and perhaps are disadvantaged qua lesbians), no evidence is provided for the assertion that gay men are economically disadvantaged as men (leaving aside other potential bases of economic oppression such as race and physical ability).

44. See High Tech Gays v. Defense Indus. Sec. Clearance Office, 909 F.2d 375,377 (9th Cir. 1990) (Canby J., dissenting); Waikins v. United States Army, 875 F.2d 699,726 (9th Cir. 1989) (en banc) (Norris J., concurring); Jantz v. Muci, 759 F.Supp. 1543,1548 (D. Kan. 1991). (rev’d 976 F.2d 623 (10th Cir. 1992) cert, denied 113 S.Ct. 2445 (1993).) Recently, there have been some gay victories through successful arguments that discrimination on the basis of sexual orientation fails ‘rational basis’ review (which does not require a determination of the immutability of the characteristic); see Meinhold v. US Department of Defense, 808 F.Supp. 1455 (CD. Cal. 1993); Steffan v. Aspin, 8 F.3d 57 (D.C. Cir. 1993) (rev’das Steffan v. Perry, 1994 U.S. App. Lexis 33045 (D.C. Cir. 1994) (en banc)); Dahl v. Secretary of the United States Navy, 830 F.Supp. 1319 (M.D. Fla. 1993).

45. See e.g., High Tech Gays, ibid.; Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989); Steffan v. Cheney, 780 F.Supp. 1 (D.D.C. 1991). For an interesting and persuasive argument that both racial and sexual identities, rather than being essential characteristics, are ‘active practices’ that are ‘ascribed, asserted, avowed, and indeed, disavowed’ through ‘a constellation of practices’ see Thomas, K. ‘The Eclipse of Reason: A Rhetorical Reading of Bowers v. Hardwick’ (1993) 79 Va. L. Rev. 1805 at 1806–7.CrossRefGoogle Scholar

46. See e.g., Woodward, ibid, [homosexuals do not constitute a suspect class because the defining characteristic is not immutable]; Jantz v. Muci supra note 44 at 1548: ‘to discriminate against individuals who accept their given sexual orientation and refuse to alter that orientation to conform to societal norms does significant violence to a central and defining character of those individuals’.

47. See supra note 32 at 513–14, where the author argues that although American courts have displayed a reluctance to accept the immutability argument, ‘strong biological evidence…might alter future judicial outcomes. Several courts have noted that the controversy over biological causation is a reason to reject the argument from immutability, a rationale that might cut the other way if the scientific community were to reach consensus on the etiology of homosexual orientation’.

48. An example of the unproblematic use of the term can be found in Wintemute, R., ‘Sexual Orientation Discrimination’ in McCrudden, C. & Chambers, G., eds, Individual Rights and the Law in Britain (Oxford: Clarendon Press, 1994) 491 at 492Google Scholar: ‘a person’s sexual orientation is the direction (to the opposite sex, the same sex, both, or neither) of their attraction to emotional-sexual conduct, or of their actual choice of emotional-sexual conduct. In addition, each specific instance of emotional-sexual conduct (e.g. a sexual act or a partnership) can also be said to have a sexual orientation, in that (if it involves two persons) it will necessarily be either heterosexual or same-sex’.

49. See D., Ortiz ‘Creating Controversy: Essentialism and Constructivism and the Politics of Gay Identity’ (1993) 79 Va. L. Rev. 1833.Google Scholar

50. See Calhoun, C. ‘Denaturalizing and Desexualizing Lesbian and Gay Identity’ (1993) 79 Va. L. Rev. 1859.CrossRefGoogle Scholar

51. Ibid, at 1872.

52. see Warner, M. ‘Introduction,’ in Warner, M. ed., Fear of a Queer Planet (Minneapolis: University of Minnesota Press, (1993) at vii.Google Scholar

53. see Kosofsky, E. ‘Queer and Now,’ in Tendencies (Durham, NC: Duke University Press, 1993) at 9.Google Scholar

54. see Butler, J. Bodies That Matter (New York: Routledge, (1993) at 228.Google Scholar

55. Seidman, S. ‘Identity and Politics in a “Postmodern” Gay Culture: Some Historical and Conceptual Notes’ supra note 52 at 31.Google Scholar

56. Ibid.

57. See Butler, supra note 54 at 226–30.

58. Queer social practices also focus on the disruption of boundaries and categories, particularly those centring upon ‘space’; see L. Berlant & E. Freeman, ‘Queer Nationality’, supra note 52 at 193.

59. Some trans-gendered persons also claim to challenge rigid categorical thinking in terms of gender. The application of the categories of ‘sexual orientation’ and ‘sex’ to discrimination against transgendered persons on those bases is interesting, but beyond the scope of this article.

60. Of course, the idea of sexual ‘choice’ is itself a contestable concept. Bisexual persons in one sense may have a choice about the gender of their sex partners, but no choice as to the fact that they may experience sexual attraction across the gender divide. Thus, the existence of bisexuality does not necessarily advance the social constructivist case. However, my view is that arguments grounded in immutability in general sit very uneasily with bisexuality as a sexual identity.

61. See Halley, supra note 32 at 527–28. It should go without saying that demanding such a ‘choice’ is profoundly unfair, but for reasons unconnected with immutability, such as the insult to the dignity of the individual and the security of the person.

62. Ibid, at 518.

63. , ‘Are We Family?: Lesbian Rights and Women’s Liberation’ (1990) 28 Osgoode Hall L.J. 789.at 813.Google Scholar

64. See Ortiz,supra note 49.

65. See generally Butler,supra note 54 at 1–12.

66. See e.g., Padula v. Webster, 822 F.2d 97,103 (D.C. Cir. 1987); High Tech Gays, supra note 44 at 563, 571; Ben-Shalom v. Marsh, 881 F.2d 454,464–65 (7th Cir. 1989).

67. Bowers v. Hardwick, 478 U.S. 186 (1986).

68. Whether queer culture achieves this goal is open to debate and disagreement. For a critical appraisal of queer political strategies, see A. Wilson, ‘Is Transgression Transgressive?’, supra note 5 at 107.

69. supranote 13 at 190.

70. See supra note 32 at 563.

71. Ibid,at 566.

72. Herman, supra note 5 at 260.

73. see Young, I.M. Justice and the Politics of Difference (Princeton, NJ: Princeton University Press, 1990) at 163.Google ScholarYoung argues that ‘the politics of difference… aims for an understanding of group difference as indeed ambiguous, relational, shifting, without clear borders that keep people straight—as entailing neither amorphous unity nor pure individuality’ (at 171).