The Succesful Gaz Activist Strategies in the 80s and 90s

The 1970s saw advances for both gay liberation and lesbian feminism which, while distinct, shared strategies such as demonstrating, lobbying, and litigating. The lesbian and gay movement during this period did not have formal centralized organizations, and gay liberationists struggled amongst themselves to define their identity. Some liberationists argued that everyone was born bisexual, and that all labels surrounding gender and sexual orientation should be erased, while others countered that this made it too hard to define what constituted a gay or lesbian person, which would make pursuing rights too difficult. Eventually, gay identity was defined by asserting that people were born gay or lesbian, which served as an effective starting point for many human rights claims the movement would later pursue. The Gay Alliance Toward Equality (GATE) Vancouver, the Coalition for Gay Rights in Ontario (CGRO), and the Association pour les droits des gais du Quebec (ADGQ) were all important organizations during this period, as well as the National Gay Election Coalition (NGEC) of 1974 and the National Gay Rights Coalition (NGRC).

During the 1974 election, the NGEC created a list of demands for the public, as well as a questionnaire on gay issues for candidates. The NGRC attempted to put pressure on the New Democratic Party, which they considered their best chance at garnering party support for gay rights. However, these and other strategies aimed at influencing policy throughout the 1970s were largely unsuccessful, although two victories were won: the amendment of the Quebec provincial human rights legislation to include sexual orientation in 1977, and the amendment of the Canadian Immigration Act to lift the ban on gay male immigrants (Rau). In 1975, John Damien, a jockey and racing steward, was fired from the Ontario Racing Commission for being gay. The CGRO, whose main goal was the reform of the Ontario Human Rights Code to include sexual orientation, supported his defense. Though Damien was finally compensated eleven years later, he died soon after, just weeks before the Ontario Human Rights Code was amended. Though this gruelling battle can easily be characterized as a failure, it is argued that this and other “test cases” in the 1970s served a strategic purpose: to publicize the demands of the movement, set precedents for future cases, and highlight the need for political action an political identity in the gay and lesbian community.

In the early 1980s, many of the resources of the gay and lesbian movement were directed towards the AIDS crisis. The lack of attention paid to AIDS by the medical community led to heavy reliance on forms of direct action like demonstrations, protests, kiss-ins and street patrols. The group AIDS Action Now! (AAN) was established in Toronto in 1988, and used direct action to pressure the government to get AIDS onto the governmental agenda (Rau). The first organized AAN effort was a protest against a Toronto drug trial for an AIDS treatment drug that had been already approved for use in the United States (Rau). AAN brought coffins to the Toronto General Hospital and demanded that the drug be made available to Canadians immediately. The protests were successful, and the government implemented a program granting access to experimental drugs, as well as the first national AIDS strategy (Rau). Preoccupied with the AIDS crisis, the lesbian and gay rights movement at first did not play a big part in the Charter debates that were going on at the time, with the exception of Svend Robinson, an MP who tried and failed in 1981 to have sexual orientation included in the Charter (Robinson).

However, towards the mid- to late-80s, the political mobilization of the movement began to focus on the wording of the Charter, which afforded an opportunity for sexual orientation to be included as Svend Robinson had recognized. In 1985, a case was brought forward by Brian Mossop, a government employee and gay activist, in which he sought a leave of absence from his place of employment to attend the funeral of his partner’s father, a request which would have normally been within employee benefits but was being denied to him. The court decided against Mossop, and gay activists considered the possible role the Charter could have played in swaying the decision the other way. Gay and lesbian lawyers began to mobilize, which led to the formation of EGALE (Equality for Gays and Lesbians Everywhere), a lesbian and gay rights group that would play an important role in working on human rights issues at the federal level into the 1990s. The Ontario Human Rights Code was amended to include sexual orientation in 1986.

The 1990s saw huge progress for the gay and lesbian rights movement, largely as a result of litigation and lobbying in response to litigation. A series of court cases established the recognition of same-sex relationships and parenting rights of same-sex couples. In 1990 in the case of Veysey v. Canada, it was established that same-sex couples had the same spousal rights in prisons as heterosexual couples, leading the Federal Court to recognize that sexual orientation seemed to fit within other grounds of discrimination in section 15 of the Charter. In Haig and Birch v. Canada in 1992, the Ontario Court of Appeal ruled that it was discrimination to not include sexual orientation in the Canadian Human Rights Act. After the decisions of these two cases, the Canadian Human Rights Commission made its support for the inclusion of sexual orientation in the Charter known by hearing over two hundred complaints based on sexual orientation afterwards.

In the Egan case of 1995, regarding same-sex couple benefits under the Old Age Security program, the Supreme Court ruled that sexual orientation was included in section 15 of the Charter, but that section 1 could be used to deny benefits to same-sex couples. After this decision, many gay rights groups mobilized to fight this kind of reading of the Charter in future cases. The Charter was formally amended to include sexual orientation as a prohibited ground of discrimination in 1996; however, same-sex couples were still not allowed to marry. In the Rosenberg v. Canada (Attorney General) case in 1998, the Ontario Court of Appeal ruled that the definition of “spouse” in the federal Income Tax Act should include same-sex couples for accessing spousal benefits within pension plans (Young). Then, in 1999 in the case of M v. H, the Supreme Court ruled that Ontario laws violated the Charter by not allowing same-sex couples to seek spousal support when they separated. The precedent set from the decisions of these cases made the legalization of same-sex marriage a logical next step.

The success of the gay and lesbian rights movement in the courts swelled into the 2000s. Following the M v. H decision, the federal government passed the Modernization of Benefits and Obligations Act of 2000, which gave same-sex couples who had lived together for more than a year the same benefits as common-law couples. Over the next couple years, challenges to the marriage laws were brought to the courts by gay couples in Quebec, British Columbia, and Ontario. In 2002, a British Columbia judge ruled that the wording of the Charter did not require that equal marriage rights be granted to same sex couples; however, this was appealed to the provincial Court of Appeal, which ruled that prohibiting same-sex marriage was unconstitutional, but that it was up to provinces to come up with their own solutions.

A year later in Ontario, however, the Ontario Court of Appeal in Halpern v. Canada ruled not only that same-sex marriage was constitutional, but also that marriage licenses should immediately be issued. Quebec did the same in 2004, and one year later under the Liberal government of Paul Martin, Canada became the fourth country worldwide to legalize same-sex marriage (Rau). In 2006 the newly elected Conservative government held a vote as to whether the law should be rolled back, but it was voted down. Some in the lesbian and gay community questioned whether pursuing same sex marriage was a good use of movement resources, as the original goals of the gay liberation movement had been sexual freedom, and it was argued that pursuing marital legislation only served to conservatize the movement. Others argued that allowing same-sex couples to marry gave the community full recognition as citizens and could serve to radically transform the idea of the traditional family in society.

Litigation around the Charter played a huge role in the advancement of the gay and lesbian rights movement in Canada. Some argue that the main goal of litigation like this is to build movements rather than achieve substantive legal change, and that the political mobilization that builds around rights claims is as important if not more so than the court decisions themselves. Still others are critical of the role of the Charter, questioning whether it was a waste of resources that could have been used to better effect in grassroots organizing. Though both sides are arguable, Canada is now regarded as one of the most progressive countries in terms of LGBTQ rights, which may speak to the effectiveness of the strategies employed by gay rights liberationists.

Since the legalization of same-sex marriage, the gay and lesbian rights movement has focused more towards protection of LGBTQ youth and trans people (Rau), mainly through activism strategies. Though trans issues are not discussed in this analysis, they are historically intertwined with gay and lesbian issues. In 2005 and 2006, MP Bill Siksay attempted to introduce gender identity to the Charter as a prohibited grounds of discrimination, but was unsuccessful. To address bullying of LGBTQ youth in schools, laws passed in Ontario in 2012 and Manitoba in 2013 require that all publicly-funded schools, including religious ones, allow student-organized gay-straight alliance clubs (Rau). “Gender identity” and “gender expression” were first added to the Ontario Human Rights Code in 2012, and the federal government added them to the Canadian Human Rights Act and the Criminal Code five years later. Transgender activism has also resulted in the ability for trans people in Canada to change the gender on their official documents without undergoing gender reassignment surgery, which may or may not be important to a person’s gender identity (Rau). The Ontario's Human Rights Tribunal got rid of the surgical provision in 2012, and by 2018 all other provinces and territories had done the same (Rau). In 2017, the government under Justin Trudeau formally apologized for the purge of LGBTQ members of the Canadian Armed Forces, RCMP, and civil service, after two years of activism by the We Demand an Apology Network.

Recent LGBTQ activism is able to succeed because of the successful litigation strategies of the 80s and 90s, particularly surrounding the Charter, which set the stage for the full recognition of gay and lesbian political identities. Miriam Smith argues that past governments have preferred to leave these issues to the courts rather than addressing them directly, because they are such hot button issues. Thus, it is highly unlikely that future governments will roll back any of the rights granted to the gay and lesbian community. Though other strategies employed by gay liberationists since the 1960s have also manifested some level of success, the single most effective strategy employed by this movement was litigation in the courts.