The honeymoon is over

Years after the legalization of same-sex marriage, Canada’s gays and lesbians are still fighting for full equality.

By Matthew Hays

On Tuesday May 26th, 2009

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As it turns out, getting married was the easy part. Since then, a whole host of complex equality issues have arisen for gays and lesbians. Six years after the landmark same-sex marriage decision in Ontario, the festivities have wrapped up, and full equality remains out of reach


On June 10, 2003, the Ontario Court of Appeal reached a landmark decision. In Halpern v. Canada, the unanimous court ruled that excluding same-sex couples from the institution of marriage was a violation of the Charter of Rights and Freedoms. The decision prompted several provinces to change marriage legislation almost immediately, and caused the federal Liberal government to enact their own law to make same-sex marriage legal across Canada.

With such a major victory, it seemed that full equality had been won — or was at least inevitable. But getting married has never been the hardest part of a marriage, and now that the honeymoon is over, the hard work has begun. Precedent spoke with some of Canada’s leading lawyers who are working towards full equality for lesbian, gay, bisexual, and transgender (LGBT) people. Their practice areas are diverse, including administrative law, family law, and human rights law. Together they are writing the next chapter of equality law in Canada. The issues are complex, and there are barriers to full equality that lack simple solutions. It remains to be seen whether this story will end happily ever after.

Breaking up is hard to do: Gay divorce at home and abroad

While many US citizens have made the trip to Toronto for a legal same-sex marriage — making Canada’s largest city something of a “gay Vegas” — American same-sex couples married in Canada have discovered that getting unhitched can be a challenge. Sadly, what happens in Vegas, stays in Vegas.

After same-sex marriage became legal in Ontario, much of the American gay press ran how-to articles on getting hitched across the border, and many Americans did come to celebrate their unions and make them legal. The problem? “Some of those people now want to get a divorce,” says Kelly Jordan, a Toronto family lawyer at Jordan Battista LLP, who receives a few calls each month from Americans inquiring about divorce. “The problem is, in order to get a divorce here, you need to be a resident of Canada for at least a year,” says Jordan.

For those living in Canada, the issue of same-sex divorce was almost simple. A lesbian couple, married in 2003 — a week after same-sex marriage became legal in Ontario — were granted Canada’s first same-sex divorce just one year later when the Ontario Superior Court of Justice ruled that the definition of spouse in the Divorce Act was unconstitutional. In 2005, after a similar case in BC, then Justice Minister Irwin Cotler amended the federal Divorce Act.

Evan Wolfson, executive director of the New York-based American advocacy group Freedom to Marry, says the cross-border complications surrounding divorce are the fault of same-sex marriage opponents. “Obviously, if we’re fighting for the right to marry, that includes the right to divorce. That’s one of the protections that comes with the right to marry — those guidelines are in place to help people through the breakup of a marriage,” says Wolfson. Jordan’s advice for Americans who want to untie the knot? “Right now, there’s no solution,” she says. “This is a big gap in the law.”

Infertility clinics: Sperm donation

There are far-reaching restrictions that make sperm donation difficult for gay and bisexual men. Government regulations that oversee fertility clinics include questionnaires that rule out assisting situations that involve donations from men who’ve had sex with other men — even ones where the person wishing to receive the donation already knows the donor. Such restrictions are justified in terms of health and safety: the logic is, gay and bisexual men (or MSM, meaning men who have sex with men) are at a statistically higher risk of contracting HIV, and therefore should abstain from donating their body fluids.

In January 2007, Toronto lawyer Andrew Pinto, of Pinto Wray James LLP, argued that such restrictions violate the Charter rights of gay donors, and are a form of discrimination. The Ontario Court of Appeal disagreed, saying the ban was “rational and health based.” “We were very disappointed,” recalls Pinto. “Our feeling was that the court failed to understand the reality of same-sex couples attempting to have a family. They were not unsympathetic, but essentially fell back on the notion that as a general population, MSM have a greater incidence of HIV infection. We argued that what may be true in a general sense may not be true in specific cases — and that there is a huge difference between an anonymous donor and a known donor.”

It’s in you to give, isn’t it? Blood donation

Blood donation has long been a sore point for gay and bisexual men who wish to donate. But those who support the ban argue that, though it may seem overly restrictive, any risk at all is too great. Canadian Blood Services has been consistent in arguing to uphold the ban, justified by the tainted-blood scandal of the ’80s and ’90s, when thousands of Canadians were infected with HIV or hepatitis C through blood transfusions.

The donor ban is now being challenged by Kyle Freeman, who is being sued in Ontario by Canadian Blood Services for negligent misrepresentation of his sexual history on a blood donor questionnaire. He is counterclaiming that question 18 — which bans any man who has had sex with another man since 1977 — is unconstitutional, arguing that the question should be geared to identify risk behaviours instead of sexual orientation. EGALE (Equality for Gays and Lesbians Everywhere), an Ottawa-based lobby group, and the Canadian AIDS Society, have stepped in as interveners in the counter-claim. The trial is expected to begin in September.  Fiona Campbell, of Sack Goldblatt Mitchell LLP, will be arguing on behalf of EGALE that while some restrictions are obviously necessary, the current ones are too far-reaching. “EGALE feels the question should be much narrower,” says the Ottawa-based Campbell, who in the past has served as counsel to the Ontario Human Rights Commission. The Canadian Hemophilia Society maintains the question is justifiable, urging the government to maintain its zero tolerance policy.

Another challenge to government blood donor policies is winding its way through the Quebec court system where a legal challenge has been filed against Héma-Québec, the province’s blood supplier. In 2005, Adrian Lomaga filed the small-claims suit of $1,500 against H-Q after being barred from donating blood while a law student at McGill University. (Lomaga now practises law in Toronto at Rachlin & Wolfson LLP.) Campbell says the question is which challenge will be heard first — if either court calls the outright ban into question, it will require governments to revisit their regulations.

Three’s company: Third parent adoption

Despite the prohibitions on gay men who wish to act as sperm donors, many gays and lesbians continue to procreate, employing DIY techniques to do so. And as the number of gay and lesbian parents grows, so do the accompanying legal complications. In September of 2006, Peter Jervis of Davis LLP successfully argued at the Court of Appeal for Ontario that a non-biological lesbian mother could have parental status, along with the biological lesbian mother and biological father, effectively recognizing a three-parent family.

“I knew these people, and knew that the non-biological parent was in a committed relationship with the biological mother, and that the biological father was playing a parenting role too,” says Jervis. “Gay and lesbian couples are in a unique position in terms of parenting. Their situation always requires a donor or surrogate — a third person is needed out of biological necessity.”

“Adoption by a non-biological parent is not unusual … but that always means that an effect of that adoption is the exclusion of one biological parent,” says Jervis. “What was unusual in this case was that the two women wanted the father to remain as a parent. I thought that the court could make that distinction, and they did.”

 Kelly Jordan routinely drafts sperm donor contracts for lesbian moms and the men (who are more often than not gay) who are the donors. Jordan notes that these contracts have not yet been deemed legally binding, but she says they are an excellent way to create a basic ethical framework, so those involved understand their responsibilities and obligations before the child is born. Jordan now counsels couples and their donors who are grappling with sharply contrasting expectations about parenting roles. “People’s perceptions of what role a donor will take changes over time — and that can be problematic.”

Jordan also says the patchwork of laws across Canada means it can be tough to counsel clients about donor contracts and their implications. In Ontario, for example, the law makes no presumptions that donors might not be parents. “These laws were made without taking reproductive technology into consideration.”

The Uniform Law Conference of Canada, a board that advises the government about harmonizing laws across the country, is now examining the issue and will make recommendations to the government about making the law consistent this August. “I will welcome the changes,” says Jordan. “Right now there is little certainty to the law, and a greater certainty and clarity can only benefit the children involved in such cases.”

In transition: Trans rights

Issues surrounding law and the trans community remain cutting edge. Joanna Radbord of Martha McCarthy & Company argues this is because trans issues aren’t embraced by much of the population. “We live in a transphobic society where many trans people face serious discrimination,” says Radbord. “As lawyers, I think we need to fight that.”

In 2000, trans parents found solace and protection in the Ontario Court of Justice case Forrester v. Saliba. The case involved a trans person who began the male-to-female sex reassignment process. Her female ex-spouse argued that this transition would threaten the trans person’s ability to parent, and thus wanted sole custody of the child. “This case was legally significant in expressly stating that a parent’s transsexuality is irrelevant to determining a child’s best interests,” says Radbord, who won the Canadian Bar Association Sexual Orientation and Gender Identity Conference Hero Award last year. “It was personally significant because it was my first trial and I worked very closely with my client, getting to know an awesome person and parent. I was thrilled with her success. My client was repeatedly discouraged by judges at the early stages of the case but she persisted out of stubborn love for her daughter and — as often happens — the truth was revealed through the trial process. The trial judge ruled there was no basis to change the parenting arrangement made prior to my client’s transition from male to female.”

“There’s always a government somewhere that’s giving us grief,” says Susan Gapka, a trans activist who works with the Toronto-based Trans Health Lobby Group. Gapka says the next step for trans Canadians will be a crucial one: the inclusion of the term “gender identity” in human rights legislation, both federally and at the provincial and territorial levels. “I’d like to see this included, and I think there may be a good chance at the Ontario provincial level. That, coupled with a public education campaign about trans issues, will help a great deal.”


Illustrations by Team Macho