Lesbian Review of Books

Fall 2001
Canada Takes the Lead
BYLINE: Monifa, Akilah

SECTION: Vol. VIII, No. 1; Pg. 6; ISSN: 1077-5684LENGTH: 974 words
HIGHLIGHT:Canada: Has made great strides in legal treatment of gays and lesbians books discuss social movements and laws affecting their statusby Akilah Monifa

Are We "Persons" Yet?: Law and Sexuality in Canada By Kathleen A. Lahey. Toronto: University of Toronto Press, 1999, 474 pp., $80.00 cloth, ISBN 0-8020-4205-8. $24.95 paper, ISBN 0-8020-8062-6.

Lesbian and Gay Rights in Canada: Social Movements and Equality-Seeking 1971-1995 By Miriam Smith. Toronto: University of Toronto Press, 1999, 211 pp., $50.00 cloth, ISBN 0-8020-4391-7. $17.95 paper, ISBN 0-8020-8197-5.

We all recall what it is like literally to be less than human, less than a person. The United States of America has a history with slavery and human beings in various instances being divided and counted as less than the whole person they were. Our neighbors to the north, Canada, have in many ways made remarkable strides in the legal treatment of gays and lesbians. These volumes remind us of where they have been, how far they have come, and that there is still much work to be done.

The concept of Are We "Persons" Yet? derives from the notion that before 1929 women were not considered person. In that year, The Privy Council of Canada declared that women were "persons" under the British North America Act. There has yet to be a similar anointment of personhood on lesbian, gay, bisexual, transsexual, and transgendered people in the country. Of course, as in the United States and other countries, progress has been made toward more rights for LGBT communities, but that is not the same as equality. Queers are of course a minority of the population women, although a literal majority, certainly have not been major political power brokers in Canada or elsewhere.

Lahey, a professor and Queen's National Scholar, Faculty of Law, also has a cross-appointment at the Institute of Women's Studies at Queen's University. She chronicles first the manner "in which basic legal rights and human rights were initially denied to sexual minorities in Canada" (xiii). She made the decision to begin there because although there was a general human and civil rights movement, it excluded queers until recently. Queers in Canada relied solely on human rights codes for protection. But even with these "protections," no human rights complaint brought forth was ever resolved in favor of the queer complainant.

Then along came the Charter of Rights and subsequent lawsuits to determine whether sexual minorities were included in the charter. The Canadian Supreme Court ruled that lesbians and gay men were included in the charter and there could be no discrimination based on sexual orientation. But of course bisexuals, transsexuals, and transgendered folk were not included in the Supreme Court ruling.

Lahey makes an interesting race-based analogy with discrimination and denial of personage of another group in Canada, the Aboriginal peoples, who are governed by the Indian Act and are also not afforded full and equal person status. The link between race/civil rights and overall human rights with queers is land some scholars have feared to tread. Lahey goes there, and with success. For the reality is that the legal arguments are the same.

Lahey notes that "private consensual adult gay sex was decriminalized in 1929" (26), so queers do not have to worry about the onus of criminal prosecution and incarceration. But of course this still leaves the larger civil problems around equality, immigration law, inheritance law, and same-sex marriage, as well as the widespread exclusion of queers from government censuses and other statistical surveys.

Lahey ends her well-researched and documented tome with a comparison to the laws of Canada's southern neighbor, the United States of America. Lahey is historical without being academic or dry. Her greatest gift is the clear connection and analysis of discrimination based on sexual orientation and/or other queer status and that based on race, sex, sexuality, and/or marital status. If one is seeking a template for analyzing and deconstructing queer discrimination, Are We "Persons" Yet? would be an excellent guidebook. Canada is similar to many industrial countries in its schizophrenic treatment of queers and other minorities. And until we are all "persons," our legal, social, economic, and political freedom is limited.
Whereas Persons focuses on the legal arena with a nod to social movements, as its title implies, Lesbian and Gay Rights in Canada: Social Movements and Equality-Seeking, 1971-1995 focuses on actual social movements: Although Smith begins in 1971, the book focuses on "the ways in which the 1982 entrenchment of the Canadian Charter of Rights and Freedoms in the constitution has influenced the political directions of the movement" (ix). The primary question is, how does legislation impact a social movement?

The movement was fledgling in 1971, but by the book's documented endpoint of 1995 external signs blossomed: organizing around AIDS and HIV, Pride celebrations in major cities, and the proliferation of lesbian and gay media. Smith compares the lesbian and gay rights movements against other social rights movements such as the women's movement and the disability rights movements. Clearly a key component to all movements in their quest for equality is to show their inherent humanness, their sameness yet acceptable differences. Smith concludes that laws like the Charter set the framework for social movements and allow "discourse, values, and self-understandings of movement actors" (156).

These two books work well in tandem to summarize, explain, and inform both the laws and social movements in Canada that lead to where the queer movement is today.

Akilah Monifa is a media trainer/public relations strategist at the SPIN Project in San Francisco, CA. She is also a freelance writer and a former law professor at New College School of Law.
Copyright 2001 The Lesbian Review of Books