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Who guards the borders of ’gay’? : an examination of the implications of the extension of ’spousal’ status… Van der Meide, Wayne 2001

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W H O G U A R D S T H E B O R D E R S O F ' G A Y ' ? : A N E X A M I N A T I O N O F T H E IMPLICATIONS O F T H E E X T E N S I O N O F ' S P O U S A L ' S T A T U S T O Q U E E R P E O P L E W H O E X P E R I E N C E M U L T I P L E O P P R E S S I O N BY W A Y N E VAN DER MEIDE--L L . B . O S G O O D E H A L L L A W S C H O O L , 1 9 9 5 A T H E S I S S U B M I T T E D IN P A R T I A L F U L F I L M E N T O F T H E R E Q U I R E M E N T S F O R T H E D E G R E E O F M A S T E R O F L A W S IN T H E F A C U L T Y O F G R A D U A T E S T U D I E S F A C U L T Y O F L A W W E A C C E P T T H I S T H E S I S A S C O N F O R M I N G T O T H E R E Q U I R E D S T A N D A R D T H E U N I V E R S I T Y O F B R I T I S H C O L U M B I A J A N U A R Y 2 0 0 1 © W A Y N E VAN DER M E I D E 2 0 0 1 U B C S p e c i a l C o l l e c t i o n s - T h e s i s A u t h o r i s a t i o n F o r m P a g e 1 o f 1 In p r e s e n t i n g t h i s t h e s i s i n p a r t i a l f u l f i l m e n t o f t h e r e q u i r e m e n t s f o r an advanced degree a t t h e U n i v e r s i t y o f B r i t i s h C o lumbia, I agree t h a t t h e L i b r a r y s h a l l make i t f r e e l y a v a i l a b l e f o r r e f e r e n c e and s t u d y . I f u r t h e r agree t h a t p e r m i s s i o n f o r e x t e n s i v e c o p y i n g o f t h i s t h e s i s f o r s c h o l a r l y p u rposes may be g r a n t e d by t h e head o f my department o r by h i s o r her r e p r e s e n t a t i v e s . I t i s u n d e r s t o o d t h a t c o p y i n g o r p u b l i c a t i o n o f t h i s t h e s i s f o r f i n a n c i a l g a i n s h a l l not be a l l o w e d w i t h o u t my w r i t t e n p e r m i s s i o n . Department o f The U n i v e r s i t y o f B r i t i s h Columbia Vancouver, Canada h t t p : / / w w w . l i b r a r y . u b c . c a / s p c o l l / t h e s a u t h . h t m l 2 4 / 0 1 / 0 1 A b s t r a c t In this thesis I explore the implications of the extension of ' spousa l ' status to s a m e -sex coup les from the perspect ive of queer people who exper ience intersectional or complex oppress ion. This study is grounded in a rejection of the necessi ty or efficacy of attempting to understanding the oppress ions facing queer people from only one perspect ive. I reject the notion that such a simplistic approach to understanding oppress ion is conceptual ly honest. Put simply, I argue that what is often character ised as a purely 'gay and lesbian' approach to reform—namely, the considerat ion of only oppress ion related to 'sexual orientation' or 'heterosex ism'—is in reality the prioritisation of the limited perspect ive of those who only exper ience systemic d isadvantage related to their race. T h e s e people are a smal l minority of queer people. Unl ike many other academics and activists, I do not conc lude with a 'yes ' or 'no' response to the quest ion of whether same-sex spousa l status should be sought. The analys is presented in this thesis does not permit such a final conc lus ion for three reasons. First, I argue that the implications of the extension of spousa l status vary depending on the institutional context; in other words, the extension of spousa l status is very different in the context of social ass is tance law as compared to the provision of employment-related benefits. Second ly , I argue that the extension of spousa l status also var ies among queer people; for example , the implications of the extension of spousa l status to poor queers are vastly different from those who are wealthy. Thirdly, I argue that the decis ion to support the extension of spousa l status to same-sex couples is inherently polit ical; this decis ion cannot be immunised from political chal lenge on the basis that it is der ived from some al legedly objective legal or socio-scient i f ic calculus. Al though I have endeavoured adopt a inter-disciplinary approach , this thesis does focus on legal rights d iscourse. To my mind, this focus is appropriate given the emphas is on 'rights talk' and the assumed benefits of formal equality within the community of academics and activists working on queer issues. In var ious parts of this thesis, I focus on the approaches of activists, academics , judges and legislators to the issue of the rights of queer people and the nature of equality. Ultimately, I conc lude that until we begin to appreciate the complexi ty of the oppress ions facing queer people, and avoid the false prioritisation of a 'purely gay and lesbian oppress ion ' perspect ive, we will be unable to work in coalit ion or to effect progressive socia l change. ii Table of Contents A B S T R A C T ii T A B L E O F C O N T E N T S iii T A B L E O F F I G U R E S v A C K N O W L E D G E M E N T S vi I N T R O D U C T I O N : T H E Q U E S T I O N O F " E Q U A L I T Y " A N D T H E D I S C O U R S E O F L A W ..1 S O U R C E S 4 O U T L I N E 5 C H A P T E R O N E : E S T A B L I S H I N G T H E ' D I F F E R E N C E ( S ) ' A M O N G Q U E E R P E O P L E (WITH C O L O U R ) 9 I N T R O D U C T I O N 9 E S T A B L I S H I N G DIFFERENCE(S) IN T H E E X P E R I E N C E S OF Q U E E R P E O P L E R E L A T E D TO O U R R A C E ( S ) 13 E S T A B L I S H I N G ' D I F F E R E N C E ( S ) ' AS A P L A T F O R M FOR A C T I O N (OR ' K N O W THINE E N E M Y ' ) 18 T H E (MIS)PERCEPTION OF O U R 'DIFFERENCE(S) WITHIN L E G A L T H E O R Y 3 0 C O N C L U S I O N 43 C H A P T E R T W O : W H O G U A R D S T H E B O R D E R S O F C A N A D A ' S " G A Y " C O M M U N I T Y : A C A S E S T U D Y O F T H E B E N E F I T S O F T H E P R O P O S E D REDEFINITION O F " S P O U S E " WITHIN T H E IMMIGRATION A C T T O I N C L U D E S A M E - S E X C O U P L E S .52 I N T R O D U C T I O N : T H E C E N T R A L I T Y OF ' C A T E G O R I C A L ' E Q U A L I T Y 52 iii T H E THEORETICAL FRAMEWORK: TRADITIONAL FAMILIAL IDEOLOGY & DECONSTRUCTING GROUP IDENTITIES 59 MERELY 'IDEOLOGICAL' CONCERNS (FOR WHOM)? 64 DECONSTRUCTING THE 'OUR' IN RELATIONSHIPS 73 CONCLUSION: REPLACING THE DEMANDS OF FORMAL EQUALITY FOR THE POTENTIAL OF PROGRESSIVE STRATEGIES 82 ADDENDUM: 91 C H A P T E R T H R E E : T H E LIMITED L A N G U A G E O F L A W 99 INTRODUCTION 9 9 'GROUNDS & GROUPS' AND OTHER ESSENTIALIST UNDERTOWS IN SECTION 15 DOCTRINE 104 'SEXUAL ORIENTATION' VS. ' T H E LIVES OF GAYS , LESBIANS, BISEXUALS AND TRANSGENDERPEOPLE' 127 CONCLUSION: THE POTENTIAL USES OF 'EQUALITY' VS. 'JUSTICE' TO REDRESS INTERSECTIONAL OPPRESSION 146 C O N C L U S I O N : F R O M A N T I - E S S E N T I A L I S T T H E O R Y T O P R O G R E S S I V E POLITICS: I N C O R P O R A T I N G I S S U E S O F C O M P L E X IDENTITIES A N D I N J U S T I C E INTO T H E 'G .L .B .T . E Q U A L I T Y ' M A N D A T E 159 B I B L I O G R A P H Y 169 iv TABLE OF FIGURES Figure 1: Oppress ion , Inequality and/or Identities as Asser ted by E G A L E 161 Figure 2: Sys temic Oppress ion , Inequality(s) and Identity(ies) 163 \ v A c k n o w l e d g e m e n t s There are of course too many people in too many p laces who have contributed to my understanding of these issues to name. However, here are just s o m e of those people. From Parkda le Communi ty Legal Serv ices I would like to thank Ron Shac ter and Phyl l is Gordon , not to mention all the other support staff and students with whom I worked in that wonderful p lace. From the Ontario Human Rights Commiss ion I owe a great debt to Isfahan Meral i and Mark Frawley, both wonderful and very bright people. From the Legal Resou rces Centre in Durban, South Afr ica, I a m eternally grateful to R . J . Purshotam, one of the best human rights lawyers I have ever had the p leasure of working with and drinking with on Fr idays. I a lso must thank Shari ta for giving me a chance to do great feminist work and Mahen for taking care of me. From the Pol icy Institute of the National G a y and Lesb ian Task Force , I have to thank J a s o n , M icah , Eric, Sal ly , Kr is, J e s s e and S e a n . A n d , of course, I would never have been able to do so much that I have without the k indness and insight of Urvashi Va id (need I say more about that Quee r brown woman activist superstar!) At the University of British Co lumbia I had the great benefit of working with so many wonderful professors and people. I thank in particular, my superv isor Doug Sanders . A s wel l , I must thank Mar lee Kline for being a wonderful teacher of the kind of feminism I admire and emulate. I a lso thank Joel Bakan , S u s a n Boyd and Cla i re Y o u n g . For keeping me sane and making sure I didn't spout too much post modern nonsense , I have to thank Bruce, Co reen , Mair i , Gus tavo , Dy lana , L o z z a , M ichae l , J o -anne, Jennifer, Br ian, Yorr ick and Amer . Love you all. Of course , thanks to M o m and Dad for a lways support ing me and being proud of absolutely everything I do (even if you would prefer I were a straight corporate lawyer). vi Introduction: The Question of "Equality" and the Discourse of Law In the last few years the extension of ' spousa l ' status to same-sex conjugal relat ionships has dominated the agenda of many G a y , Lesb ian , B isexua l and Transgender (G.L.B.T. ) rights advocacy groups. B e c a u s e litigation has become an effective tool in the pursuit of this goa l—where lobbying and mass-ac t ion have had relatively limited success— l ega l rights d iscourse (or 'law-talk') has become pivotal. In this thesis I will critically explore two central and interrelated aspec ts of this approach to equality seek ing. The first aspect of this approach that I will critically explore is the set of assumpt ions that are played out when law-talk becomes the primary and ideological ly privi leged d iscourse of a political movement. By a political movement I mean one that holds itself out as the advocates for a group of people who are understood or accepted as shar ing similar object ives and interests in terms of social change. O n e of the central themes of this thesis is that by focuss ing on "groups or categor ies of people" (such as gays and lesbians) rather that "communit ies of interests," vitally relevant di f ferences between people are ignored in the formulation of political and socia l change agendas . Ironically, the first part of my thesis will be that the goals of many G . L . B . T . equality seek ing movements have become de-pol i t ic ised. They are often understood more as legal quest ions than political ones . Court chal lenges brought by individual compla inants—directed by self-interest, lawyers, legal strategy and a handful of act iv is ts—have captured the minds of many within the community, substantial ly reducing the levels of political debate and contest about the meaning of G . L . B . T . equality and the most effective ways to ach ieve that goal . The goal of same-sex spousal 1 recognition has become ideological insofar as its benefits are a s s u m e d . Polit ical vo ices within this "group of people" but with a different "community of interest" are reduced to the level of extremist or individualistic noise pollution. Th is process is readily apparent, for example , in the d ismissal of those who question the desirabil ity of the extension of same-sex spousa l status based on the financial and socia l d isadvantage they may exper ience related to their poverty, gender, race etc. This ra ises the second aspect of my thesis: a critical exploration of the potential meanings of equality, both general ly and in terms of G . L . B . T . people. It will be my argument that the emphas is on the legal redefinition of ' spouse ' has resulted in G .L .B .T . equality almost becoming synonymous with and confined by the concept of formal equality. In other words, it has come to be understood simply as the elimination of any and all legal distinctions between those with opposi te-sex conjugal partners and those with same-sex conjugal partners. Formal equality has become an end in and of itself. The benefits of this change have become a matter of common-sense , whereas any d isadvantages are quickly d ismissed as far-fetched or irrelevant to The G .L .B .T . equality rights movement. But those benefits and d isadvantages are not evenly distributed. More often than not, it is those people who exper ience multiple forms of oppress ion who will bear the brunt of the d isadvantages of the extension of spousa l status, while those who would not exper ience oppress ion but for their sexual orientation will reap the benefits. I will argue that formal equality is not, and should not be understood as the self-justifying objective of G .L .B .T . equality rights groups. The elimination of all distinctions between the treatment of opposi te-sex and same-sex conjugal coup les is not a reflection of a purely G . L . B . T . equality rights agenda . It is not a neutral or natural 2 G.L .B .T . perspect ive. Rather, it reflects the perspect ive of those people who only exper ience oppress ion related to homophobia , those who will even benefit from incorporation into sys tems which will continue to reinforce 'other' oppress ions after the type of homophobia they exper ience is el iminated. It reflects, therefore, the political perspect ive of a relatively privi leged group of G . L . B . T . people and communi ty of interest. Polit ical chal lenge to the formal equality goals of the G . L . B . T . movement—based on arguments that gaining spousa l status will be ineffective in the pursuit of substant ive equality or will have adverse or multivalent impl icat ions—related to the status of being a woman , a person of colour, poor, etc., 'in addit ion' to being G .L .B .T . , cannot be d ismissed as the introduction of 'other' issues. It must be understood that someone who does not exper ience gender-, race-, or c lass-related oppress ion still has a gender-, race-, and c lass -based identity(ies) 1. A young, professional , wealthy, able-bodied white gay man is not 'just gay. ' He is a young, professional , wealthy, able-bodied white gay man. I will not be arguing, however, that the pursuit of the recognit ion of same-sex spousa l relationships is inherently invalid. I will argue that it cannot be assumed to promote the equality of all G . L B . T . people. For much of this thesis I will attempt to articulate the ways in which the ach ievement of same-sex spousa l recognit ion will d isadvantage or reinforce the oppress ions exper ienced by many G . L . B . T . people. However , these are complex and interdisciplinary issues that involve quest ions of self-determination, economics , cultural identity and several types of historical d isadvantage—in particular, heterosex ism, c lass i sm, race and gender oppress ion. By d iscuss ing these issues I do 3 not pretend to arrive at any universally appl icable conc lus ions about what G .L .B .T . equality looks like or whether same-sex spousal recognit ion is good or bad. Rather, in laying out these complex issues, these complex quest ions, I hope to demonstrate only that the meaning of G . L . B . T . equality cannot be assumed or der ived from an exclusively legal d iscourse. Ultimately, my fundamental chal lenge is to two interrelated p rocesses : 1. the approach through which law-talk and formal equality have become ideological, and 2. the way in which categories are articulated and understood, namely, as groups of people rather than shared communit ies of in terests) . I will not attempt to provide any universal answers because my vo ice, my analysis and my conc lus ions are a lso political. At best, all I can do is hope to contribute to a chorus of perspect ives about these complex quest ions. To lay c la im to the answer of what G .L .B .T . equality looks like, would be antithetical to the very bas is of the approach I take to these issues. SOURCES Within the last few years , a substantial body of work applying what I understand as an intersectional, or mult i-perspective approach to G . L . B . T . equality issues has emerged. Canad ian legal scholars such as S u s a n B. B o y d 2 and Shel ley G a v i g a n 3 have effectively articulated a feminist and c lass based—and sel f -consciously race sensit ive—cri t ique to the dominant approach to G .L .B .T . equality analys is . These two authors, in particular, have effectively applied their extensive knowledge of family ideology to interrogate the value of pursuing same-sex spousa l recognit ion. By accent ing the normative, and often oppress ive nature of the dominant understanding of 4 what 'family' is, they have chal lenged assumpt ions about the benefits of incorporation of G .L .B .T . people into fami ly-based, or spousa l -based institutions. In this regard, Claire Young has contributed an invaluable body of work about the potentially oppress ive implications of incorporation into a tax sys tem in which many c lass is t and gender oppress ive tax measures are organised by reference to spousa l s tatus. 4 In the United States legal scholars such as Darren L. Hutch inson 5 and activists such as Urvashi V a i d 6 and Barbara S m i t h 7 have written and worked for years towards the goal of articulating and representing a progressive, and highly c lass and race sensi t ive approach to G .L .B .T . equality. To these, and many other p ieces of scholarship I hope, in this thesis, to contribute a broad analys is of several G .L .B .T . equality issues currently being d i scussed , and litigated, ac ross C a n a d a . I rely upon and refer to severa l different perspect ives, including an understanding of feminist, c lass and race based theories. Ultimately, although this thesis refers in large part to Canad ian law and legal institutions, I hope to avoid privileging legal d iscourse. Unlike many texts written by lawyers about law, I will apply a contextual and interdisciplinary approach to understanding changes to the law and legal institutions. I will contest, rather than a s s u m e the implications of these legal changes : investigate their multivalent consequences and rigorously apply their complex implications to the real life c i rcumstances of a variety of G . L . B . T . people, whose place in Canad ian society var ies according to their race, c lass and/or gender in addition to their sexual orientation. OUTLINE In the first chapter of this thesis I will introduce the topics of race and rac ism. More 5 particularly, I try to illustrate the importance of our racial identity(ies) as G .L .B .T . people of colour. In a consc ious attempt to d isp lace a powerful myth of academic d iscourse, namely its c la im to objectivity, this chapter is written in a style which I intended to reflect the importance of my own racial identity(ies) to my politics. I will descr ibe how and why the marginal ization of racial identity(ies) within the G . L . B . T . movement has resulted in mistrust and animosity between and among different racial groups. I a lso d iscuss the shortcomings of legal and academic ana lyses about G .L .B .T . equality rights that either ignore or diminish the re levance of 'other' forms of oppress ion. In the second chapter, I will use proposed changes to Canad ian immigration law as a c a s e study. Through exploring these proposed changes , in detai l , I will e laborate upon and contextual ise some of the race issues raised in Chapter O n e while a lso introducing a more substant ive d iscuss ion of gender and c lass . My focus will include, but will not be limited to, a d iscuss ion of the proposed addition of a category for unmarried s a m e - and opposi te-sex ' spouses ' within the immigrantion sponsorsh ip sys tem. Indeed, it is the central argument of this chapter that this proposed new category cannot be v iewed in isolation, but should rather be understood as a broader process through which the rights of certain types of immigrant famil ies are we lcomed to C a n a d a , while others are restricted even more. In the first part of this chapter, I will d i scuss the centrality of the demand for what I have termed 'categorical equality,' which is the demand that married people, opposite-sex and s a m e - s e x conjugal partners be contained within the s a m e category. I will argue that although it is assumed to be a prerequisite to queer people attaining full equality within the 'formal equality' approach to reform, in certain contexts categorical equality with heterosexual norms will frustrate the dignity of some queer people or communit ies 6 of interest within that group. In the second part of this chapter I lay out the theoretical groundwork upon which the chapter is based : an understanding of 'family ideology' and notions of group-based identity(ies). In the third part of the chapter I lay out some concrete examples of ways in which incorporation of same-sex conjugal partners may result in the reinforcement of 'other' oppress ions. In the fourth part of the chapter I illustrate some examples of the ways in which people in same-sex relat ionships, who exper ience multiple oppress ions , are d isadvantaged from being incorporated within 'spousa l ' categor ies. In the conclus ion to this chapter I d iscuss some concrete alternative approaches for promoting a more broadly f ramed understanding of equality for those in same-sex relat ionships, one which is based on a c lose scrutiny of community of interests, rather than a group of people. Chapter Three is primarily a d iscuss ion and critique of the Sup reme Court of C a n a d a ' s understanding of concepts related to equality. In particular, I question whether or not the jur isprudence of the Court can meaningfully address the exper iences of those who exper ience multiple oppress ion, not just one or the other. I will hold up the Court 's , and my own doctrinal analys is of equality jur isprudence against the broader soc io-political context in which it exists. I will argue that although s o m e just ices (such as L 'Heureux-Dube J.) have attempted to grapple with dif ferences within groups of d isadvantaged people, the Court 's fundamental rel iance upon categor ies of people, rather than communit ies of interests, frustrates its ability to meaningful ly cope with the complexi t ies of multiple and intersectional social oppress ion. 7 In the Conc lus ion to this thesis I will return to a d iscuss ion of the inherently political nature of the quest ion: 'What is equal i ty?' or 'What is G . L . B . T . equality i ssue? ' I will outline a political approach to contesting var ious approaches , perspect ives and priorities related to these essent ia l , yet too often neglected debates. I will not only articulate my resistance to the universal and uncritical acceptance of the pursuit of same-sex spousa l recognit ion, but a lso my resistance to its carte b lanche rejection. Rather, I will emphas ize that it may very well be that the pursuit of same-sex spousa l recognition is the most politically feasible and ef facacious approach to promoting the equality of G .L .B .T . people. But this must be determined by political consensus , not theoretical or ideological fiat, nor legal judgement. 1 I have used this spelling to emphasize a theme which is discussed throughout this thesis: namely, that people's identities are complex, plural and interactive, but also unified; people's identities are not simple nor severable. See for example, "(Re)Placing the State: Family, Law and Oppression" (1994) 9(1) Canadian Journal of Law and Society 39 - 73; "Best Friends or Spouses? Privatization and the Recognition of Lesbian Relationships in M. v. H." (1996) 13 Canadian Journal of Family Law 321 - 341; "Family, Law and Sexuality: Feminist Engagements," (1999) Vol. 8, No. 3 Social & Legal Studies 369 - 390; and Boyd, Susan B. & Elizabeth A. Sheehy, "Introduction" in Canadian Feminist Perspectives in Law: An Annotated Bibliography of Interdisciplinary Writings (Toronto: Resources for Feminist Research, OISE, 1989). 3 See for example, "Paradise Lost, Paradox Revisited: The Implications of Familial Ideology for Feminist, Lesbian and Gay Engagement to Law" (1993) 31 Osgoode Hall L.J. 589 - 624; "Law, Gender, and Ideology" in A. Bayefsky (ed.) Legal Theory Meets Legal Practice (Edmonton: Academic Printing and Publishing, 1988), 283 - 295; and "Legal Forms, Family Forms, Gendered Norms: What is a Spouse?" (1999) 14-1 Canadian Journal of Law and Society 127 - 157. 4 Young, Claire F.L., "Taxing Times for Lesbians and Gay Men: Equality at What Cost?" (1995) Dalhousie Law Journal 534 - 559 and "Public Taxes, Privatizing Effects, and Gender Inequality" in Susan B. Boyd, ed. Challenging the Public/Private Divide: Feminism, Law and Public Policy (Toronto: University of Toronto Press, 1997) 307 - 329 5 See, for example, "Out Yet Unseen: A Racial Critique of Gay and Lesbian Legal Theory and Political Discourse" Vol. 29, Number 2 Connecticut Law Review 561 - 645. 6 See for example, Virtual Equality: The Mainstreaming of Gay and Lesbian Liberation (New York: Doubleday, 1995). 7 Barbara Smith, ed., Home Girls: A Black Feminist Anthology (Watertown, MA: Persephone Press, 1983). 8 Chapter One: Establishing the 'Difference(s)' Among Queer People (with Colour)* INTRODUCTION The purpose of this thesis, and this chapter more specif ical ly, is to search for some of the d i f ference(s) 2 among people who are c lumped together by this society as 'queer' because of their derogation from the dominant heterosexual norm. G iven the current academic trend to reject grand theories in favour of more context and subject specif ic ana lyses , this may s e e m a simple task. Indeed, even within the growing body of work specif ical ly on the subject of those who are queer, authors are increasingly adopting approaches that either question or flatly reject any universal notion of the ' homosexua l . ' 3 The once unifying concept—at least for those privi leged enough to only exper ience one form of oppress ion—of 'sexual orientation' with its object of the 'homosexua l , ' has seemingly given way under the strain of deconstruct ion. For example , the reality of sex ism, gender codes/cod ing and patriarchy has been well articulated by those who insist on the difference between gay men 's and lesbian women 's l ives. A s Sharon Dale Stone has observed: 'Lesb ians are women. This point is crucial for understanding lesbian existence within a heterosexual , patriarchal context. A s women , lesbians do not have a c c e s s to male pr ivi lege. ' 4 A s a result of the divergent and polarizing impacts of these forces on people equal ly queer(ed) yet differently gendered, the 'homosexua l ' soon became 'gays and lesbians. ' But as the definitions and categor ies used by some people changed, the very unified (not 'unifying') force of compulsory heterosexuali ty persisted as a dominant norm in this soc ie ty . 5 In appreciat ion of this reality, the categories o f ' g a y s and lesbians ' were in turns supplemented with the (sub-)categories of 'b isexuals, ' ' t ranssexuals, ' 9 'hermaphrodites, ' . . .and so the list of others who also t ransgressed from compulsory heterosexuali ty grew. This process (of 'commatizat ion') cont inued until the list was supplanted, by some at least, with the less linguistically cumbersome term 'queer. ' I would suggest , however, that in the push for inclusion within the category 'queer' one of the central miss ions of that movement, of the concept 'Queer ' w a s lost in the shuffle: the deconstruct ion of categor ies and (fixed) identities by demonstrat ing that these categor ies are social construct ions, not natural p h e n o m e n a . 6 The boundary setting concept of 'sexual orientation' may have been rhetorically submerged by some, but its usefu lness, validity and meaning continue to be a s s u m e d and largely unquest ioned, particularly in legal d iscourse . 7 This creation of a 'fixed identity primacy' based upon the concept of sexual orientation inappropriately obfuscates the very real difference(s) which exist among us general ly, and as quee rs . 8 'Gay and lesbian' i ssues related to 'sexual orientation' have been constructed as constituting a 'pure' core, separate from other 'non-gay and non- lesbian ' i ssues unrelated to that identity. 9 In so doing, the quest ion of whether any gay or lesbian person's identity can ever be significantly understood without reference to all but one aspect of their identity has become a non-quest ion. The issues of race and racism, for example , are often at best peripheral and at worst non- issues lost in a theoretical, and political ocean of neglect and s i l ence . 1 0 I wish in this chapter to begin a process of chal lenging the boundary of 'sexual orientation' by ' racial iz ing' that concept and the category of 'queer . ' 1 1 I insist that the difference(s) among us be acknow ledged . 1 2 W e simply are not all the same because we are queer. In the absence of this recognit ion, queer people of colour, who for the most part have no choice but to acknowledge our race(s), cannot exist in the framework of 'sexual orientation' as defined by many queer activists and academics . The category of 10 "queer" based exclusively on "sexual orientation" must be revitalised through an exploration of the severa l , often divergent communit ies of interests which make-up that category. This p rocess should not, however, be understood as purely an exerc ise in self-interest: an attempt to simply 'stake-out' our identity(ies) as queer people with colour. S u c h an exerc ise is surely val id, however, given the painful marginal izat ion of our identity(ies) a s queer people with colour within mainst ream political and legal d iscourse among queer people. A s Mar lon Riggs, a gay B lack poet has written: I w a s mute tongue-t ied, burdened by shadows and s i lence. Now I speak and my burden is l ightened lifted f ree . 1 3 However, as I shall argue, the recognition of all of our difference(s) is a lso an important aspect of a process which will better enable us to chal lenge or 'queer' the boundary of sexual orientation itself, and consequent ly heterosexism 1 4 It is only when our difference(s) are acknowledged, that we will be able to get beyond the stumbling block of the difference between us and incorporate our 'political identity(ies)' as in the drive for l iberation, no longer stymied by 'identity pol i t ics . ' 1 5 Paradoxica l ly , it is only once our difference(s) have been embraced that we will be able overcome the difference between us and cultivate our ' inter-connectivity' as a tool in a united chal lenge to he te rosex i sm. 1 6 I focus in this chapter on the issues of race and racism because as a gay man with colour, faced with either s i lence or explicit marginal ization within queer communit ies, I must. But I should not be understood as prioritizing difference(s) related to race over other, equal ly relevant ones within queer communit ies, including among others: c lass , 11 age , gender and abi l i ty. 1 7 The effects of these forms of oppress ion will be d iscussed more extensively in subsequent chapters. Depending on the particular situation or relationship one d imension of difference may be more pertinent than others; however, the understanding of difference(s) that I propose does not rely upon any conceptual (or 'universal ') hierarchical ordering of difference. The concept of 'difference(s)', unlike that of 'difference', is equal ly appl icable to all people; it should not be understood as a flag used to identify or demarcate an area in which only one 'type' of people may congregate. The difference(s) to which I refer do not inhere in any particular person, group of people or even identity. The dif ferences about which I will speak are an aspect of the relat ionships between and among all people, between different communit ies of in terests. 1 8 Moreover , difference(s) do not exist exclusively as an aspec t of law (whether understood as a coerc ive or constitutive force, or both), but as exper iences which should be al lowed to permeate the interdependent fields of law and society. Lastly, as al luded to above , the difference(s) that I will articulate should not be understood as a re-articulation of identity politics. Indeed, if anything is to come of this chapter, it is hoped that the reader will appreciate my attempt to construct a theory of difference(s) that is anathema to severa l of the less constructive aspec ts of identity politics. Rather, recognition of the difference(s) which exist among queer people should be understood not as an end in itself, but as part of a process which will help us to understand how heterosexism works to d isenfranchise and marginal ize queer people. Until this is recognized we remain 'queer' communit ies separated from an essent ia l source of our liberatory potential: our shared community of interest. This is primarily a methodological chapter. M y goal is to open rather than conc lude d iscuss ion on the subject of difference(s) related to race, and otherwise, among queer 12 people. To that end , I shal l introduce examples of the ways in which that notion has been (mis)represented in severa l interdependent a reas : the l ived exper iences of queer people; as an aspect of mainstream political d iscourse and act ion; and lastly, as an aspect of legal theory. I do not claim to offer an exhaust ive descript ion of any of these areas in this p iece, but wish merely to highlight certain important aspects of the treatment of our difference(s) in all three areas. I hope through this approach to draw the reader into a methodological framework that will prove useful for more detailed s tud ies—such as the ones contained subsequent chapters—further political d iscourse and possibly act ion. E S T A B L I S H I N G D I F F E R E N C E ( S ) IN T H E E X P E R I E N C E S O F Q U E E R P E O P L E R E L A T E D TO O U R R A C E ( S ) W e , all of us, including queer people, share exper iences that in some way correspond to our race(s ) . 1 9 Moreover , in this multi-racial society, al though race may not be a universal or even biological truth, rac ism is a socia l fact which inf luences all our l ives, including the l ives of queer people who bear the brunt of heterosex ism, but not r a c i s m . 2 0 It se rves , sadly, to privilege some over others in a plethora of ways , to demarcate different communit ies of interests even within the s a m e "group of people." But it is not my intention to indict those with a particular type of privi lege, or even simply to lament the injustice exper ienced by those without. Rather, it is the function of this sect ion to establ ish, to introduce and even embrace the fact of our race(s) as an aspect of the difference(s) among us as queer people. Th is might s e e m an inflammatory, exclusionary, trite, or worst of al l , a self-indulgently irrelevant exerc ise; however, I shall argue that it is a bas ic step)—and although difficult, not as painful as one might at first a s s u m e — i n the process of realizing our full potential of our ability to chal lenge opp ress ion . 2 1 13 Within d iscourse about human rights the images of the race(s) of people with colour are d is tor ted. 2 2 In this context the race(s) of people with colour becomes synonymous or even derived from the concepts of discrimination and oppress ion. This is sadly an all too understandable mispercept ion. It is true that many people with colour suffer racism motivated by the racial identity(ies) which has been constructed and foisted upon them. But the fact of rac ism should not be automatically l inked conceptual ly with the race(s) of people with colour. R a c i s m does not inhere, as a natural aspect of the race(s) of people with co lour . 2 3 It is rather a soc ia l force, an oppress ive impulse which exists among us al l , in our relations with each other. Arguably, all people with colour in this society at a certain level begin to exper ience their race(s) as a source of oppress ion . Sad ly many of us may even internalize this feeling of the connect ion between oppress ion and our race(s). But for me this process of internalization of oppress ion , of rac ism, and its connect ion to (my) race(s) is a false consc iousness that I must strive to overcome. It is only when we all strive to overcome this false connect ion between our race(s) and racism that we will be able to appreciate that which is posit ive about our race(s). Pe rhaps I a m using language incorrectly by using the word 'race(s)' in this way. I might be better understood if I write about culture or ethnicity. But to my mind, the distinction is at a certain level d is ingenuous because it obfuscates the fact that (our) race(s), like rac ism, cannot be divided from their performance. Race(s) are not a set of biological facts: skin colour, the texture of hair or level of intell igence. Race(s) are socia l construct ions that are expressed by the assignat ion of attributes—like a behavioural characterist ic, e.g. 'B lack people are lazy '—to those biological features, however arbitrarily. Whether expressed in terms of physical and/or behavioural 'biology,' race(s) are socia l construct ions that 14 inform our relationships with each other and have resulted in certain communit ies of interest and affiliation. Al though we may wish to chal lenge the legit imacy of the socia l construction of race(s)—whether as viciously negative (i.e. racist) or simply mistaken—it is equal ly mistaken to ignore the effects of that construct ion. Our race(s) are now a part of our identity(ies) in their performance and as a part of our being: they have been epistemological ly grafted to our skin tone, our hair's texture and the width of our noses . Our race(s) can and are, however, a lso expressed as shared exper iences, communit ies of interests, and a connect ion to others of the s a m e race(s). Sad ly , for people with colour in this society, many of those shared exper iences may be negative. But not all of those exper iences are negative and the connect ion is certainly not negat ive . 2 4 That connect ion is both important and potentially posit ive. The recognition of the var ious communit ies of interests related to race is vital. Therefore, when I speak of my race(s) as a person with colour, both its importance to me and as a source of the difference(s) among us (as queer people, for example) that statement should not be assumed to be a charge of rac ism nor as an attempt to chal lenge the validity of the racial identity(ies) of others. It is merely an assert ion of one important aspect of my identity(ies), and that of others, including those without colour. It is an assert ion of one community of interest of which I a m a member. I would suggest that it is in part this reflexive connect ion between race and rac ism which is the source of much misunderstanding between queer people with colour and other queer people. The subject of race s e e m s to have become fused on an emotive level with an indictment of rac ism, which in turn elicits the responses of guilt, de fens iveness , conflict and even reca lc i t rance. 2 5 A l though these may well be 'understandable ' responses to a charge of rac ism, they are not appropriate responses in 15 every d iscuss ion about the implications of race for queer people, d iscuss ions about our difference(s). In saying this I am not suggest ing that rac ism does not exist, or for that matter that it is an insignificant phenomenon within queer communit ies. That there is rac ism within queer communi t ies is undeniable. It is there in the ubiquitous and omnipotent aesthet ic image of the pretty white-boy or -g i r l 2 6 and also in the var ious exotic sexual caricatures of the 'others': the stall ion-like B lack man (the 'Mandingo' ) or the submiss ive , almost asexua l A s i a n s . 2 7 Sad ly , in the area of sexual relations, in particular, queer people of colour are very often subjected to two extremes: either they are completely invisible to the gaze of the those who hold cultural dominance in C a n a d a , or, they are hyper-visible under the sexual lens of others who magnify race as a central aspect of their sexual attraction. It is there in the eyes of both types of people at a dance club, and in that feeling in the pit of your s tomach. It is here. . .among us queers. But as I stated above, my goal is not to indict those within the queer community for their rac ism or as racists perse. This chapter is simply not meant to speak to those people who maintain consc ious ly racist attitudes or refuse at any level to even acknowledge the ex is tence of racial difference or rac ism, and its implications for queer people with co lour . 2 8 Chal lenging these people and these percept ions is of course important, but is a moral imperative beyond the scope of this thesis. Rather, the purpose of this chapter is to chal lenge the conceptual integrity of sever ing the issue of race(s) in the formulation of a 'queer' category that only refers to one 's 'sexual orientation.' For the reasons I articulated above, any attempt to sever and categorize these two issues separately is d is ingenuous. R a c e is an important aspect of all of our identity(ies) and results in difference(s) among us; to ignore it is to "erace" all those 16 queer people who share political and socia l change communi t ies of interests related to race. Pe rhaps for some people with colour this aspect of our identity(ies) has been e levated to the level of primary importance, as it often must, being a communa l shield from r a c i s m . 2 9 A s a person with colour in this society, I s imply cannot speak of myself, even my queer self, without speak ing of my race(s). Pe rhaps it is a lso more natural for those who are not people with colour to ignore this aspect of their identity: do white people need or have race(s) in this s o c i e t y ? 3 0 Regard less , I insist and embrace the fact of our difference(s): we all have racial identity(ies) and these are both d iverse and important. To ignore this aspect of our identity(ies) is not simply unwise, dishonest, or conceptual ly f lawed, it is a lso hurtful and marginal iz ing, particularly to people with colour who se ldom have the cho ice to ignore race, and rac i sm. 3 1 Sad ly , the issue of our race(s) is important a lso because a s people with colour, we are queer(ed) in this society not only because we are not heterosexual , but a lso because w e are people with co lour . 3 2 To ignore or minimize the importance of this aspect of my identity(ies) is to adopt an approach which robs us all of the synergist ic potential of a chal lenge to the boundary(ies) of heterosexual i ty f rom many, a s opposed to one perspec t i ve . 3 3 Th is approach categorical ly den ies us, and den ies others the full power of our 'Queer ' vo ice, our var ied perspect ive(s). Therefore, it is an approach which is not only conceptual ly d ishonest—insofar as it falsely limits our reality(s)—it is also ineffective because it limits our ability to raise our vo ice against oppress ion ; this is the point to which I turn. 17 E S T A B L I S H I N G ' D I F F E R E N C E ( S ) ' A S A P L A T F O R M FOR A C T I O N (OR ' K N O W THINE E N E M Y ' ) R a c i s m can affect queer people with colour in similar ways that it affects our brothers, s isters, mothers and fathers who may be 'within' the dominant heterosexual norm. In other words, race and the exper ience of racism are communi t ies of interests that we may share with people who are not queer. Indeed, as I will d i scuss more in the next chapter, it is important to note that being a good heterosexual—having a nuclear family: one or two kids with a mother and father, one or both emp loyed—is itself often limited by ones race(s). It is trite that whether we 'come out' or not, rac ism will a lways precede heterosexism as a source of our oppress ion, as a site of our ' quee rness . ' 3 4 Moreover, the fact of 'coming out' as a sexual queer, however potentially liberating a process that may be, cannot e rase the realities of racism. Our race(s) remains important both as a positive aspect of our identity(ies) and as one potentially distorted by racist oppress ion. A s a result, it is often impossible to know which aspect of our difference is the motivating factor for an individual act, or the more systemic manifestat ions of oppress ion. Arguably , even the attempt to divide the sources of our oppress ion is a futile or ever counterproductive exe rc i se . 3 5 A s queer people, we also exper ience racism in a way that may not be shared by all heterosexual people with colour. The racism we exper ience is at t imes mult idimensional insofar as it is informed also by our t ransgressive sexuality(s). Cons ide r the situation of a gay black man who is d ischarged from his employment for 'hyperbol ic displayfs] of homosexual i ty ' when other gay white men who engaged in similar conduct, were less severe ly pena l i zed . 3 6 Is this situation the result of rac ism or heterosex ism, neither or both? In this case , sexual orientation being an unprotected category, the court went on to d ismiss the c la im of ' race' discrimination. A s Eaton has wryly observed : '[The Complainant 's ] race d isappears as a concern of any legal consequence because he 18 was much too queer to be black or, to put matters somewhat differently, because the rouge w a s thick enough to conceal the noir.' 37 Therefore, even our ability to resist oppress ion may be contingent upon both the fact of mult idimensional o p p r e s s i o n 3 8 and whether its complexity is acknowledged and cons idered. One ' s feeling of he lp lessness as a queer person with colour is compounded if we are only condit ionally we lcomed by queer communit ies: as long as we don't make too much noise about race and r a c i s m . 3 9 A s I shal l argue below, such a posture makes it exceedingly difficult for the process of 'coming out' to be fully liberating for queer people with colour. Rather than being encouraged to embrace that which is a natural aspect of us, our full queerness , we are cudgel led into adopting a foreign identity (a 'sexual orientation' untarnished by co lour 4 0 ) which in its limited form may offer little more to us than the risk of addit ional opp ress ion . 4 1 I would be unable to suggest which is the more painful reaction from the queer community, to be confronted with ambiva lence and disrespect , or with (un)familiar forms of patent oppress ion and discrimination. But whichever feels worse , as a person with colour, the former is more insidious, almost silently conspir ing against our ability to work together, in coalit ion against oppress ion. But the s i lence is now being chal lenged by many vo ices. Unfortunately, many of these vo ices are understandably distorted by ange r . 4 2 Obviously, the process of having to continuously reassert both one 's identity(ies) and the re levance of a var ied, as opposed to a unidimensional concept ion of oppress ion, is no smal l task. It is in the best of situations a psychical ly draining chal lenge; but, when efforts to do so are met with ambiva lence, particularly within the context of an al legedly progressive social movement, it is downright vexat ious. Sad ly , as a result, many queer people with colour choose simply not to participate in either mainst ream 'gay and 19 lesbian ' social movements or even more coalit ional organizat ions. A s Va id has observed: I find myself torn about the question of race-speci f ic versus multiracial organiz ing. My confusion comes from exper ience with the deep resistance to antiracist work and to multiracial organizing that cont inues to exist within white gay and lesbian organizat ions. It is t i resome to have to explain that our repeated assert ions about being a multiracial community require our movement to respond to racism and to take a strong stance on what s o m e cons ider "nongay" issues. It feels much more satisfying and productive to choose to work with l ike-minded people - people you don't have to convince that working on racism is important. 4 3 If it is axiomatic that there is strength in numbers, it is equal ly s o that strength is diminished in div is ion. There is now an unfortunate paradox. The narrow vision of the mainstream gay and lesbian socia l movement—namely a so-cal led exclusively sexua l orientation based agenda—has prompted the formation of smal ler groups targeted to particular segments of the queer community, or communit ies of interests, such as those shared by lesbian women of colour. But, even though these (sub-)groups cater to speci f ic communit ies interests, they a lso often foster a vision of oppress ion much broader than that of many mainstream organ iza t ions . 4 4 S o m e of these organizat ions are socia l in nature, simply giving us a space in which to celebrate our culture(s) and speak unfettered by any obligation to continuously assert or defend who we are as queer people with co lour . 4 5 Others are geared to providing resources specif ical ly for queer people with colour because it is bel ieved that these needs are not being met by the "mainstream" queer community 4 6 Those organizat ions with a political mandate often foster a broader vision of socia l change because they recognize difference(s) within the queer community and the mult idimensional nature of oppress ion. But these organizat ions and their members are not without their problems; some even replicate those negative patterns of behaviour that may have motivated their 20 formation in the first p l a c e . 4 7 For example, some are geared quite narrowly around one particular 'racial group' or "community of interest" and may neglect to even attempt coalit ion building with other groups who are a lso oppressed in similar ways . Even when coalit ion building is attempted, it is often a s t rugg le . 4 8 A s one might expect , queer people with colour are both weary and wary of any potential chal lenge to their identity(ies). Is it any surpr ise that many prefer to accept that they are different, rather than having to constantly establ ish and defend the notion that all of us share difference(s). Our exper ience with difference has general ly not been a positive one , even within the 'progressive ' environment of queer socia l movements. Particularly for those who remain a part of mainstream queer socia l movements it is therefore a great chal lenge to envis ion our shared difference(s). The s i lence of the ambiva lence to our difference(s), whether racial or otherwise is, ironically, quite deafening. Consequent ly , people who do not fit within a unidimensional notion of 'sexual orientation' oppress ion (a single community of interest) are left feeling that they have no option but to raise their vo ices louder and louder. If our difference(s) are considered unimportant, it may s e e m that the only option left is to emphas ize that we are indeed different. In this way, an inherently counterproduct ive pattern is engendered within soc ia l movements , often cal led identity polit ics. This politics focuses not on the difference(s) which exist among us or our shared communi ty of interest, but rather on the difference between us. And of course, if we are truly different from each other, coalition becomes impossib le, or certainly more remote a possibil ity. To quote from Va id again: The bitterness on all s ides is deep and growing. Peop le are in well-dug bunkers, and few people—of any color—attempt to break out of their entrenched posit ions. The atmosphere of trust and respect that is a prerequisite for work across racial l ines is sorely lacking in the gay and lesbian community 's struggles with its own diversity. Instead of d ialogue, 21 we engage in public attack. Instead of multiracial organizat ions, we keep inventing more s ingle-race g r o u p s . 4 9 At best, all we can hope for is to find some common ground, such as the simple fact that we t ransgress compulsory heterosexuality, in which to meet and exchange 'posit ions' or ' identities' without ever being able to share a vision of our shared identity(ies) as queer people. A s each particular identity becomes entrenched, it s e e m s more and more natural to defend your particular identity, your posit ion. Therefore within this context, this a tmosphere, competit ion is more common than coalit ion, or even conversat ion. For if we are each to have a particular posit ion, surely it is safest to prioritize our particular posit ion. Peop le may end up jockeying with each other in an attempt to establ ish identity h ie rarch ies . 5 0 Pe rhaps I a m being too harsh and simplist ic in descr ib ing the complex causes and effects of identity politics within socia l movements . What is c lear however, is that through this process identities become fixed and ent renched. Consequent ly , a person may only speak 'effectively' about issues which pertain to her identity(ies). Authority to participate in conversat ion are limited by the 'authority' to claim a particular identity. In other words, the fact that all of us have many identity(ies), many perspect ives, becomes a red herring: relevant only insofar as it author izes one to speak. Within this political cl imate, as a queer man with colour I a m often only able to speak only about 'my' exper iences as a person with colour and as a person who is a gay male. I cannot articulate any general vision of how to chal lenge and move beyond 'our' mult idimensional oppress ion nor can I explore our shared communi t ies of interests. 5 1 My identity(ies) are artificially f ragmented into identities at the d iscurs ive level, so that I a m rendered unable to speak in one voice. But, if I cannot speak as I a m , how can I 22 know mysel f? If I cannot know myself, how can you know me. And if you cannot know me, how can we possibly be able to work toge ther? 5 2 But even if the vocabulary of identity politics limits us al l , its syntax would s e e m to favour some more than o thers . 5 3 Let us a s s u m e for the purposes of this argument that one 's 'sexual orientation' should be the primary identity, or prioritized perspect ive within the political d iscourse of the mainstream G.L .B .T . socia l movemen t . 5 4 It is likely that the identity of those people who are primarily oppressed in relation to their sexual orientation (if such a ca lcu lus is possible) are most benefited by the agenda which results from that d i s c o u r s e . 5 5 Put simply, only one community of interest is reflected, namely, that of those who only exper ience oppress ion related to sexual orientation. This crit icism could be equal ly appl ied to social movements formulated exclusively around race and rac ism, etc. In saying this, I do not mean to impugn en toto the right, or even the value of chal lenges to heterosexism by those who would not be oppressed 'but for their sexual or ientat ion. ' 5 6 To reject these efforts reflexively would be (purely from the perspective of self-interest) unwise, because there is at least potential benefit to me as a gay man with colour. Never the less, I would a lso insist that there is no value in ignoring the quest ion: 'How might a unidimensional perspect ive limit the potential benefits to all of us? ' Stated conversely, there is value simply in uncovering all the implications of adopting an approach which prioritizes 'sexual orientation' at a d iscurs ive level, even if we may d isagree about what we then do with that information. For example , what is the benefit or the limitations of a policy or statute that prohibits discrimination on the bas is of 'sexual orientation' in a society in which so many lesbians cannot find work at al l , or if they do, it is neither rewarding, meaningful nor sufficiently remunerat ive to permit them a fulfilled l i f e? 5 7 That quest ions such as these are 23 important, at least to some, is evident in the raging debate among , or perhaps, between queer people about the issue of ' same-sex mar r iage ' 5 8 and spousa l s ta tus . 5 9 S o m e have argued, for example , that even were the institution of marr iage to be extended to same-sex coup les , the potential benefits of that extension would vary depending upon one 's race(s), gender or c l a s s . 6 0 Surely these quest ions are at least pertinent simply because our race(s), gender(s) and c lass(es) , among other identity(ies), vary among all of us in same-sex relat ionships? These quest ions are pertinent because we queer people have different communit ies of interests in terms of the recognit ion and regulation of spousa l relat ionships, s a m e - or opposi te-sex. I would argue that essent ial ly there are only two reasons one could rely upon to answer this seemingly rhetorical question in the negative: 'those quest ions simply do not pertain to the issue of sexual orientation,' or, ' those quest ions are irrelevant to me as a person who does not suffer any oppress ion other than heterosexism. ' The former answer sacr i f ices both the lived reality(ies) of many (and a broad political vision) to the detriment of us all for the sake of conceptual simplicity. The latter is more a moral s tance than a conceptual posit ion. To those who maintain this s tance I can offer no chal lenge in this thesis, only perhaps a few nagging quest ions. Obviously , the implications of ignoring these quest ions are more than rhetorical for those who exper ience mult idimensional oppress ion, they are tangible. However, I would also argue that an unexamined emphas is on sexual orientation—to the exclusion of other i s s u e s — c a n adversely impact the ability of self-identified gay and lesbian activists to effectively frame chal lenges to those manifestations of oppress ion which affect us all as queer people. For example , v io lence motivated by hatred is a sad reality which threatens many groups in this society, including (but certainly not limited to) people with colour and queer people. A s d iscussed above, for queer people with colour who are 24 vict ims of such v io lence it may simply be impossible to tell whether the motivation for a particular attack w a s rac ism, homophobia or some combinat ion of both. O n e such attack was upon a 29 year-old gay Puerto R ican man named Jul io Rivera in Q u e e n s , New York in 1990 . 6 1 This man was attacked and killed by three members of a neo-Nazi /whi te supremacist gang, one of whom later con fessed that Rivera was killed because 'he was gay. ' Both the media and the police seemed intent on ignoring the obvious homophobic aspect of the cr ime, the latter refusing to list it as an 'anti-gay crime.' Act iv ists in turn chal lenged the police refusal, arguing that this murder was precisely that: an 'anti-gay' cr ime. They argued furthermore that the police reaction was itself tantamount to 'homophobia. ' O n e of many disheartening observat ions that can be made about these events—the cr ime, the investigation, media portrayal, and the reaction of act iv ists—is that s ince the debate, as framed by activists, seemed to contemplate only 'homophobia ' the issue of race w a s left unexamined and the ev idence of rac ism unchal lenged. Both the police and the media were permitted to utilize racist stereotypes about gay men and Latino people general ly to obfuscate the issue of homophobia. R ivera became the stereotypical poor Latino man: a drug addict and/or dealer (read 'death: typical and unimportant') and certainly too much of a hot 'Macho Latino' to be gay (read 'too butch to be a femme'). Whether the pol ice were blinkered by their own stereotypical assumpt ions or more consc ious ly racist /homophobic in motivation, as Darren Hutchinson has trenchantly observed: T h e activists' essential ist framing of the cr ime as a "gay" bash ing, rather than a racist-homophobic attack, may actually have invited the police to use Rivera 's race to erase his gayness ' (emphasis added ) . 6 2 Assuming that the issues of those who would not exper ience oppress ion 'but for their sexual orientation' have been prioritized within mainstream G . L . B . T . socia l movements , 25 what factors have contributed to the development of this situation? It may be that having a relatively privi leged posit ion, these people are simply best ab le to vo ice and emphas ize 'their' perspec t ive . 6 3 And for them, an identity politics centred around 'sexual orientation' might be descr ibed as a comfortable, even natural perspect ive: a prioritization of that issue which s e e m s most tangible to t h e m . 6 4 A n d for queer people with colour and others who exper ience mult idimensional oppress ion , identity politics is an inevitable react ion: it is a response to a politic approach which marginal izes and clearly disfavours them. The point I w ish to emphas ize , however, is that regardless of the c a u s e s of the various manifestat ions of 'identity politics' (read 'who is to blame'), as political approaches they obscure both our shared identity(ies) and difference(s) in ways that disfavour us all. Identity politics is often less of a political d iscourse and more of premature end to d iscourse. In entrenching a particular identity, rather than exploring our shared identity(ies), we drain and polarize the col lective energy which facilitates our ability to effectively chal lenge oppress ion. W e obscure important connect ions and complexi t ies that frustrate our ability to use our ' interconnectivity' s o essent ia l to our ability to chal lenge opp ress ion . 6 5 Perhaps there is no alternative, or more accurately what alternative there is resides only within the minds of academics . After al l , academics do not face the realities of communit ies that may not be so amenab le to Utopian inspired, esoter ic talk of 'coalit ion' and 'communit ies of interests'. T h e s e ambit ious goals may not translate well into the language of se/ f -defence, understandably of primary concern to people under s iege. But as the Rivera case so sadly demonstrates, the unwil l ingness to recognize our shared difference(s) and complex identity(ies) does not result only in animosity within socia l movements ; it a lso 26 limits our ability to recognize and chal lenge the mult idimensional causes and implications of oppress ion. Oppress ion is in one sense about the entrenchment of dif ference: the creation of boundar ies that submerge shared communit ies of interests. This process can be vividly seen in the use of rac ism in the southern United States in the turn of the 2 0 t h century to deflect poor whites away from the c lass-oppress ion that they endured, an oppress ion that they shared with their poor black neighbours. T h e s e entrenched boundar ies may be difficult to perceive, but they are boundar ies nonetheless. A s I have argued, these boundar ies not only separate us from each other, they separate us from ourselves, conspire to hide our shared community of interests. O n e of these boundar ies is 'sexual orientation' as manifested in the form of 'heterosexism. ' In this society the concept of 'sexual orientation' is on one level a very crude instrument used to categor ize both people by conduct. Al though it would be imprudent to suggest that 'identity politics' is the cause of oppress ion, it is an approach that holds limited potential for chal lenging it. It is to my mind an inherently limited posture because it does not, because it cannot, affirmatively chal lenge the boundar ies that result in oppress ion. It cannot chal lenge or problematize these boundar ies because it emphas izes them itself. 6 6 Th is does not mean that the only option left is a rejection of the notion of boundar ies or categor ies, that we should adopt an approach that attempts to 'pretend away' the boundar ies which society imposes upon us? The identification and use of communit ies of interests related to sexual orientation and heterosexism, for example , is vital. Nor however does it mean that we should uncritically adopt these boundaries within liberatory d iscourse. W e must question the implications of the manner in which we both conceptual ly (i.e. in our d iscourse) and 27 methodological ly (i.e. in our activism) adopt and incorporate these boundary setting notions into our a g e n d a s . 6 7 That an uncritical adoption of the notion o f ' sexua l orientation' is wrought with danger is not a new insight. Indeed, it is implicit in many of the most animated and long-lasting debates within queer people 's socia l movements. For example , the notion of 'sexual orientation' has been problemat ized (and somet imes rejected) by many lesbian theorists on the grounds that it has been historically, and cont inues to be imbued with a meaning which has at its core the exper iences of men. It's utility to lesb ians is therefore quest ionable because of, among other things, its apparent inability to contemplate issues of gender discrimination and patr iarchy. 6 8 Another issue that has been f lagged as a danger is that if we use the concept of 'sexual orientation' in attempts to establ ish that 'homosexuals ' are no different from 'heterosexuals, ' we may unwittingly comply in the creation of new categories of oppress ion: the good vs. the bad h o m o s e x u a l . 6 9 There are a plethora of similar d iscuss ions within queer socia l movements . T h e s e are issues of great complexity and range, some of which will be highlighted in upcoming chapters. However, I would suggest that there is a basic insight manifest in all these crit icisms capable of succinct articulation: any potential chal lenge to the oppress ion of those who do not conform to the dominant heterosexual norm which automatical ly prioritizes a one-d imensional and uncritical notion of 'sexual orientation' has limited eff icacy and dangerously hegemonic potential. A s W a y n e Morgan has observed : [...jactivists who push a gay liberation "rights" agenda. . .are accused of failing to problematize difference, equality, identity and the intersections of different identities (race, gender, c lass as well as sexuality). Within our legal sys tem, containment of diversity is ach ieved through tolerance and co-opt ion, and this tolerance and co-option is facil itated by a movement intent on proving " sameness " to the heterosexual s tandard. But tolerance by law is forthcoming only if those who identify as gay or lesbian do not threaten the status q u o . 7 0 28 Equal ly capab le of succinct articulation is a possib le method to avoid these limitations and dangers : the considerat ion and incorporation of numerous, as opposed to one perspect ive, within political d iscourse about all of our exper iences as queer people. Our difference(s) must be cons idered and util ized without the d i f ferences between us being entrenched. Our communit ies of interests must be explored before we can purport to speak about categor ies of people. But no matter how easi ly the concept may be descr ibed, the practical chal lenges posed by its implementation are anything but easy. Franc isco Va ldes has descr ibed the chal lenges in this way: [...] any particular (mis)perception of s a m e n e s s or dif ference, whether deemed substant ively "real" or not, cannot become the point; the point is what we make of the perception — how we interpret s a m e n e s s and difference, how we imbue percept ions of s a m e n e s s and difference with cultural, legal , theoretical or political s igni f icance, and how we then accommoda te each other constructively and mutually in the face of significant d i f ference. 7 1 Despite the obstac les , if we continue to obscure our difference(s) as queer people, the road we take, however well marked, may lead to a dead-end for many, if not all. The exper iences of queer people with colour, for example , cannot continue to be marginal ized in a footnote. These exper iences, these perspect ives must be incorporated at a foundational level. They cannot simply be an item on the agenda but must inform the process of the agenda 's formulation. Until this is done, we will be unable to clearly s e e and erase those boundary(ies) which limit us all a s queer people, but instead will only be able to shift a particular boundary in a way which may benefit some , but never all of us. S o m e will get over the wal l , whi le others will be left behind, or pushed back even further. 2 9 T H E ( M I S ) P E R C E P T I O N O F O U R ' D I F F E R E N C E ( S ) WITHIN L E G A L T H E O R Y Issues of difference do not reside exclusively within the sphere of political d iscourse. Our difference(s) a lso resonate within legal d iscourse, the legal p rocess and legal theory. In this sect ion I will examine how the d iscourse of legal theory—in particular doctrinal ana l ys i s—can constitute and/or reinforce notions of gay and lesbian equality which misperceive and mischaracter ize the difference(s) between queer people. In subsequent chapters I will turn my focus more directly on similar p rocesses within legal advocacy and law (both legislative and judge made.) A s one might expect, legal d iscuss ions about our difference(s) often occur in the context of legal analys is of human rights. In this ve in, much has been written about the ability or inability of law and legal rights to promote progressive socia l c h a n g e . 7 2 In subsequent chapters I will d i scuss this question more directly. However , in this chapter I wish to d i scuss examples of how difference(s) among queer people have been (mis)perceived within academic d iscuss ion about ' G . L . B . T . equality' without d iscuss ing the validity of human rights law itself as an effective tool for progressive socia l change. I would argue that these two quest ions are not synonymous even though they are most certainly related. Rather, I will argue in this chapter that even though it may be that human rights laws have a role to play in the promotion of progressive socia l change, that potential is frustrated by many lawyers and legal academics who (at the level of legal theory) promote a false consc iousness of difference which frustrates this ability. T h e s e legal theories bypass any analys is of communi t ies of interest in favour of a much more limited d iscuss ion of groups of people. W h e n I began research for this chapter I avoided most treat ises or articles which in their summary made reference exclusively to the subject of 'sexual orientation' without more than a pass ing reference to gender, race or c lass etc. However , my desire to be 30 academica l ly r igorous (and the fact that I quickly exhausted those p ieces which met my admittedly narrow research methodology) eventually came to bear, and I began to cons ider some of those p ieces which I had not up to that point. A n obvious first cho ice for considerat ion was a text that contains one of the more exhaust ive treatments of legal doctrine within C a n a d a related to the subject of ' G . L . B . T . equality' and aptly titled Lesbians, Gay Men, and Canadian Law.73 The purpose of this text is descr ibed succinct ly: '...to consider those areas of Canad ian law whose impact is different on lesbians and gay men than on heterosexuals . . . . ' 7 4 The fact of this topic is largely unproblematic to my mind; however, what is problematic is the ways in which the topic is assumed to be capable of the (re)cognition of certain difference(s) and identity(ies) between queer people, but not others. The first two chapters of this text might be descr ibed as introductory: they set out the perspect ive and methodological approach the author takes, which is a doctrinal analysis of Canad ian law. Chapter Two in particular is entitled 'Contextual iz ing the Law's Treatment of Lesb ians and G a y Men. ' The process of contextual izing can be an important exerc ise that opens up a d iscourse, giving it greater breadth of scope and d imension. A s I have argued, considerat ion of our d iverse exper iences , our difference(s) as queer people, increases the potential for effective d iscourse on the subject of our oppress ion. Unfortunately, I would argue that the introductory passages of this text articulate a context that is not expans ive, but indeed both limiting and marginal iz ing. In Chapter Two, under the sub-chapter-heading (ironically) titled 'Diversity within Lesb ian and G a y Communi t ies ' , two and only two aspec ts of our so-cal led 'diversity' are identified. The two communit ies of interests that are identified are '[tjhe socia l and economic situations of women , including lesbians, [which] are profoundly different from 31 those of men (including gay men)' and also the 'different approaches that lesbians and gay men may take on legal issues...[both between and among those groups ] . ' 7 5 To be accurate, these are not the only references to the dif ferences between us as queer people, or different communit ies of interest. However , other than these two—which are specif ical ly art iculated—the only references to the diversity among queer people in these introductory chapters are unspecif ic and perfunctory. For example , the authors says : '[a]nd on it goes , taking account of the diversity of v iewpoints among individual lesbians and individual gay men ' and that '[t]he importance of recogniz ing issues of diversity and different political perspect ives within the lesbian and gay communit ies is increasingly a c c e p t e d . ' 7 6 Other aspects of our diversity, such as that related to our race(s), are not even identified in these chapters, far less cons idered or incorporated into its analys is . I have chosen these chapters of this text for review not because the doctrinal ana lyses that they introduce are incorrect, or even automatical ly inappl icable to queer people with colour. No doubt the analys is contained in this text at least has the potential to be appl icable to queer people with colour insofar as they are gay, lesbian, bisexual (and transgender), in other words, insofar as they share a community of interest related to sexual orientation oppress ion. But this potential does not, because it cannot alter the discurs ive limitations introduced in these passages . I have chosen these passages for review because they are all too typical examples of the ways in which legal theories about ' G . L . B . T . equality' (as opposed to ' G . L . B . T . people') adopt methodological approaches which obscure the difference(s) among us in a manner that is both counterproductive and marginal iz ing. Th is approach by passes all but a very few communit ies of interests among queer people. 32 Recal l ing d iscuss ions above regarding the conceptual and practical d isadvantages which may result from focusing on a particular identity, or boundary, cons ider the following descript ion of the methodology of the text: '[s]ince this book focuses on how the law treats lesbians and gay men differently from heterosexuals , the primary distinction throughout is between " lesbians and gay men" and "heterosexuals '" (emphasis a d d e d . ) 7 7 There is therefore an unambiguous, explicit and unquest ioned prioritization of the boundary of sexual orientation. What is implicit in this descript ion is the concomitant marginal izat ion of those 'other' identity(ies) and oppress ions which may play an equal ly, if not more significant role in the oppress ion of many ' G . L . B . T . people. ' Perhaps even more importantly, by purporting to fold the identity(ies) of G .L .B .T . people into sexual orientation, exclusively, the author obscures the reality that the nature of 'sexual orientation oppress ion ' may itself vary according to race, gender , c lass etc. Rather than questioning and d iscuss ing the validity of adopting the perspect ive of the relatively privi leged, it is reasserted and adopted in this text. Defining the 'identity' and 'oppress ion ' of G .L .B .T . people solely in relation to 'heterosexuals ' has two effects. First, the category of 'heterosexuality' is itself assumed and centred, thereby limiting the potential to problematize that concept and to treat it as social ly constructed and therefore contingent upon numerous fac tors . 7 8 Second ly , only a one-step divergence from the norm of 'heterosexuali ty' can be cons idered, and the ability to address mult idimensional oppress ion is consequent ly lost. Duc los descr ibes this type of perspect ive in this way: If one is at the centre, one can see d ivergence in alternative directions: by race (not-white), or by sex (not-male), or by religion (not-Christ ian), and so on . In this way the various grounds of discrimination contain hidden assumpt ions about who is likely to invoke t h e m . 7 9 33 Therefore, although the 'primary perspect ive' is stated, the unstated norm remains that of the person who would not be discr iminated against 'but for sexua l orientation.' The consequence is that queer people with colour, to name only one example , simply d isappear from the pages of this text . 8 0 Still, as indicated above, this text does identify two of the ways in which we differ from each other, despite a shared sexual orientation, namely: our gender and political posit ions. I would argue however that the explicit recognit ion and considerat ion of these, and only these sources of the dif ferences between us, has the following implications: an implicit hierarchical ordering of the sources of our difference(s) or identity(ies) and the concomitant marginal izat ion of the 'others.' Difference(s) related to gender are, of course, an important considerat ion. However, any recognition of this difference, to the exclusion of other aspects of women 's identity(ies), is a conceptual ly inadequate tool for understanding even gender oppress ion. O n e need only remember that many 'women' are a lso oppressed by virtue of their c lass , for example , in order to emphas ize the weakness of this app roach . 8 1 The irony is that the discurs ive potential opened up with one hand by recogniz ing that '[l]esbians are d isadvantaged both as w o m e n and as l esb ians ' 8 2 is therefore c losed with the other hand, because the feminizat ion of poverty and the implications of c lass oppress ion are obscured . Put simply, one of the most central communi t ies of interests shared by women , namely the need to resist the oppress ion of poverty, is ignored. Of course , it is not only the exper iences of poor lesb ians, but a lso of all queers with colour, among many others, that are marginal ized by the identification of gender, to the exclusion of all other sources of our difference(s) as queer people. Th is brings me to the second difference identified in these passages : namely, political posit ions. I would argue that an issue far more fundamental than our political di f ferences is our communit ies of 34 interests which invariably inform these divergent political posit ions. A n d as I have argued above the kind of approach taken in these p a s s a g e s is one that not only fails to cons ider our difference(s), but a lso one that engenders a s e n s e of exc lus ion and marginal izat ion, which in turn leads to a further entrenchment of more identity politics, or political di f ferences. Therefore, at a d iscurs ive level this text approaches the topic of 'gays and lesbians' in a manner which obscures our shared difference(s) and the ways in which these difference(s) modify the oppression(s) we face as queer people. At best it is an approach which is only capab le of contemplating specif ic examples of how G.L .B .T . people differ. T h e s e discursive limitations detract from the va lue of analys is contained in the body of the text. Put simply, the limiting approach adopted results in a doctrinal analys is that has proportionately limited re levance to queer people with colour and others who exper ience mult idimensional oppress ion. For example , in Chapter thirteen the topic of 'Visitors, Immigrants, Re fugees and Ci t izenship ' is d i scussed . Much of this analys is is likely to become outdated because of proposed reforms to Canad ian immigration law to, among other things, introduce a new category within the sponsorship system for unmarried s a m e - and opposi te-sex ' spouses . ' (In the next chapter these and other proposed reforms to Canad ian immigration law will be d iscussed in depth.) In Lesbians, Gay Men, and Canadian Law, on the subject of immigration it is noted that 'homophobia a m o n g immigration officials persists as a significant problem in a system that is highly discretionary' (emphasis added . ) 8 3 Th is is so because currently a person in a s a m e - s e x relationship wishing to 'sponsor ' his/her partner may often have to rely upon an appl icat ion for exemption on humanitarian and compass ionate grounds [hereinafter ' H . & C ] because a same-sex partner cannot be sponsored as a ' spouse ' or 'f iance(e). ' In other words, a same-sex 35 spouse cannot be sponsored as part of the regular family c l a s s . 8 4 A n d as is recognized, '[t]he key to admiss ion under [the H. & C . process] is the considerable discretion permitted to individual immigration officers in assessing.. . [ these] app l ica t ions. ' 8 5 In the two c a s e studies used to ana lyze H. & C . appl icat ions very few details about the same-sex coup les are given beyond the names (from which 'sex ' can usual ly be inferred) and the cit izenship of the partners. The descr ipt ions do not include explicit information about, for example , their c lass , age, race, occupat ion or employment status. But surely in as highly discret ionary an application as an H. & C . these 'other' factors may also have been influential in the officer's dec is ion? W a s the Canadian-c i t izen partner gainfully employed or col lecting soc ia l ass i s tance? What w a s the level of educat ion and occupat ion of the non-Canad ian partner? If 'homophobia ' might be an impulse which inf luences an immigration officer's discret ion, might not ' rac ism' be another? The notion that the Canad ian immigration sys tem has elements of direct, overt, and more systemic manifestations of racism is not a novel one 8 6 M y point is that the exclus ive focus on the issue of how 'homophobia ' (or 'heterosexism') may or may not inform the discretion of an immigration officer is f lawed. O n e is given a very meagre portrait of the implications of G . L . B . T . people having to rely upon such a highly discretionary remedy. A s a highly discret ionary remedy, it is one more amenab le to the dec is ion-maker consider ing var ious, not just one ' - ism. ' Therefore, the pert inence of the analys is is limited for those people consider ing the eff icacy of a H. & C . application who may be faced with mult idimensional sources of discr iminat ion. A s a consequence of the limitations of this analys is , one is left with the rather unsatisfying conclus ion that: 36 [...] the "out" lesbian or gay couple who are able to c o m m e n c e , or at least threaten to commence , a Charter chal lenge [based on 'sexual orientation' discrimination]...may well stand a better chance of "convincing" the immigration or v isa officer of the humanitarian and compass iona te merits of their c a s e . ' 8 7 However , it is obv ious that the more 'strikes' against a coup le—such as the lack of educat ion or knowledge of French or Engl ish of the potential immigrant-partner, or the inability of the Canadian-c i t izen partner to fully support the ' spouse '—the less likely an immigration official is to be 'conv inced ' to grant the application due to the threat of a Charter chal lenge based on 'sexual orientation' discrimination. The reason for this is that 'courts are general ly reluctant to interfere with an officer's exerc ise of discret ion' and the more 'str ikes' against a potential same-sex couple, the less likely a court is to find that the officer exerc ised his/her discretion based upon ' some wrong or improper principle or acted in bad fa i th . ' 8 8 A n officer may be able to use the ex is tence of mult idimensional identities, and multiple sources of oppress ion , to obscure the role of 'homophobia ' in his/her dec is ion. In a manner sadly ana logous to the approach taken by activists in the Rivera tragedy d iscussed above, the exclus ive focus upon the phenomenon of 'homophobia ' in this text leaves unexamined and unchecked the reality of mult idimensional oppress ion, and its potential s igni f icance in the H. & C . applications of same-sex coup les . In this way, the analysis itself is rendered incomplete and , in my opinion, f lawed. What is at least implicitly recognized is that the potential benefit of both a H. & C . application and a Charter chal lenge is entirely contingent upon whether the same-sex partners 'can "come out" and openly chal lenge the unfa i rness. . . . ' 8 9 But aga in , what is left unstated and unanalyzed is that our ability both to ' come out' and to chal lenge our oppress ion may itself be curtailed by the existence of mult idimensional opp ress ion . 9 0 This is a topic that brings me to the next part of this sect ion: legal ana lyses about 37 ' G . L . B . T . oppress ion ' which do not simply ignore or obscure , but which explicitly marginal ize the re levance and exper ience of mult id imensional oppress ion . In 'Out ing: The Law Reac ts to S p e e c h about Homosexua l i t y ' 9 1 it is argued that the law should remain silent on the issue of 'outing,' that it should not penal ize or otherwise d iscourage the 'revelation of a person's sexuality without that person 's consent and contrary to that person 's w i shes . ' 9 2 1 a m uncertain, and therefore will take no position on whether or not the practice of 'outing' is general ly eff icacious or/and morally justifiable as a liberation strategy for queer people. However, I will argue that the process of reasoning by which it is 'justified' in this article is f lawed. 'Out ing' may facilitate the destruction of 'the closet, ' but in its place may be left a ' lavender bubble' through which the implications of mult idimensional oppress ion are filtered out, making it an uncomfortable abode for queer people with colour. In d iscuss ing the 'social interest' of the f reedom of speech , as it pertains to 'homosexuals , ' the socia l context is descr ibed in this way: That is not to say that there is one homosexua l culture in C a n a d a or anywhere e lse. Lesb ians , gays , and b isexuals have many things in common , but the most common element among them is their historical persecut ion and the fact that non-homosexua ls lump them together 9 3 (references omitted & emphas is added.) The concept of common(ali ty) is used here to formulate an essential ist notion of the exper iences of all queer peop le . 9 4 The assumption that queer people share one common interest (that we are all lumped together) is used , without further explanation, to erase all the divergent communit ies of interests within the group of people posited. Leaving as ide for the moment the political (in)efficacy of this approach , it is one which quite simply ignores the reality of mult idimensional identity(ies) and oppression(s) . A s I have argued above, coming out as sexual ly 'queer' cannot e rase , for example , our race(s) nor the implications of rac ism, whether we are privi leged or oppressed by this 38 socia l pathology. Indeed, even 'our' sexuality as queer people with colour may be informed by cultural n o r m s 9 5 and racists stereotypes both within and outside of the queer community. Therefore, we are not a lways ' lumped together' by either the straight or queer commun i t ies . 9 6 However , even though in this article 'our difference(s)' are obscured in the construction of a queer identity (sic), the 'dif ferences of some ' are identified and addressed as potential arguments against the practice of 'outing.' Not surprisingly, these arguments are promptly rejected: The s a m e principles ought to apply where the outed person is a member of a particular ethnic, cultural, geographical or rel igious communi ty where the reaction to the outing may be more than usual ly negative to the outed person and those around her. There is a myth in many cultures that homosexual i ty is a 'white man's d isease ' . This can make homosexual i ty especia l ly difficult for members of non-white groups. The law ought not to accept different levels of tolerance for homosexua ls in different parts of the country or in different segments of it. 9 7 Although it may indeed not be appropriate for the law to 'accept different levels of tolerance for homosexua ls ' nor should legal theories ignore the socia l context of all queer people, the reality of multiple and intersectional oppress ion , and its implications or causes . Peop le with colour are all too familiar with the phenomena of racially based sexual roles being foisted upon them—over-sexed deviants who can consequent ly be vilified, feared, exot ic ized or raped with impunity—by 'white' people and cu l tu res 9 8 The desire, among people with colour communit ies to s i lence 'their' queer people may therefore be informed by fear: a desire to keep sexuality private and therefore beyond the dangerous gaze of dominant cu l tu res . 9 9 By focusing exclusively on 'heterosexism' as 'sexual oppress ion ' this analys is limits its ability to deal with the reality of he te ro - rac ism. 1 0 0 By 39 hetero-racism I mean simply oppress ion whose character is informed both by racism and heterosex ism. What makes 'homosexual i ty especial ly difficult for members of non-white groups' is not only the myth of homosexual i ty as a 'white man 's d i s e a s e ' 1 0 1 but a lso the reality of mult idimensional oppress ion. The reification of 'coming-out' not only bel ies the fact that it is more difficult for some more to 'come-out ' than o t h e r s , 1 0 2 but a lso that 'being out' may hold less benefit for those who exper ience mult idimensional oppress ion. A s Hutchinson has observed: T h e coming out p rocess . . .does not automatical ly "liberate" people of colour, who, by revealing their sexual orientation and attempting to integrate themselves within white gay and lesbian communit ies, may encounter racial h ie rarchy . ' 1 0 3 I would argue, therefore, that the elevation of the issue of 'homophobia ' (narrowly understood) over rac ism, or v ice versa , within our respect ive communi t ies inherently prevents considerat ion of our mult idimensional oppress ion as queer people with colour. But this is precisely what is done when our race(s) and our sexuali ty( ies) are articulated not only as separate categor ies, but as competit ive: when 'homosexual i ty ' is understood as a white man 's d i sease and when our 'ethnic community ' (rather than racism) are conce ived of s imply as obstac les, preventing the full realization of our 'homosexua l ' se lves . The rejection of queer people with colour by their famil ies and communit ies, whatever the rationale, cannot be defended. However , neither is it productive to simply d ismiss this reaction by people with colour simply a s a misp laced myth that 'homosexual i ty ' is 'a white man's d i s e a s e . ' 1 0 4 It indeed is a 'myth,' but it is one whose content and power have in many ways been inherited from and in de fence of the white man's treatment of people with colour, his racist gaze upon their sexuality. 40 O n the ultimate question of whether or not the 'outing' of queer people, with colour or otherwise, should be immune from legal penalty I take no posit ion. However , by focusing exclusively on the 'homophobia ' of particular 'ethnic' communi t ies (read 'not-white') rather than the difference(s) in our race(s), our identity(ies) and our shared oppress ion as queer people, this article takes an approach which adopts rather than chal lenges the d i lemmas of difference. The better alternative has been summar ized well by Va ldes ; 'Dif ference, recast as diversity, confirms the reality that we constitute cross-communit ies with cross- interests. Difference as diversity paves the way for a blend and ba lance, rather than a hierarchy or dichotomy, of identity and af f in i t ies. ' 1 0 5 I would suggest that rather than asking whether or not the law should 'accept different levels of tolerance for homosexua ls in different parts of the country', one should first try to appreciate why 'outing' results in different levels of harm and benefit for some people, as opposed to others. One should first try to identify the communit ies of interest we share in terms of nurturing and safeguarding our ability to come out. A younger friend once told me that when she came out to her mother, her mother reacted by suggest ing that it w a s surely mistaken for her to be openly lesbian when she was already a poor B lack woman . Accord ing to the framework in the article 'Out ing' , the only pertinent quest ion would be: 'Should this mother's reaction be "tolerated"?' I would suggest , however, that this young woman and people like her would not be any better off if we determine that it should not? Even though I could not help but notice its naivete, I have a lways admired the daughter 's response to her mother: ' Y e s , but now I have another community to support me in my struggles as a poor B lack lesbian woman. ' I w ish I could endorse her opt imism. Of course, not all legal theory has obscured or rejected the re levance of mult idimensional oppress ion to queer people. Indeed, I have heavily relied upon a 41 wealth of publ ished theory on these issues. Writers such as Kimber ley Crenshaw, Nitya Iyer (nee Duclos) , Mary Eaton and Darren Lenard Hutchinson just to name a few. Unfortunately, there is a common refrain among many of these writers: that the law is either incapable (or judges unwilling) to adequately address the i ssue of mult idimensional o p p r e s s i o n . 1 0 6 For example , in one of her articles Duc los argues that human rights laws, with its emphas is on discrete categor ies or grounds of discrimination, result the identity(ies) and exper iences of women with colour being almost entirely e r a s e d . 1 0 7 And specif ical ly on the subject of queer people, Mary Eaton has argued that the legal concept of 'sexual orientation', as a ground or category of prohibited discr iminat ion, has come to be coded 'white' in a manner which works to the disfavour of those who are queer people with co l ou r . 1 0 8 A s I will argue in the next two chapters the Canad ian legal p rocess , the structure of human rights/anti-discrimination laws and equality jur isprudence do indeed limit the potential of law to provide effective redress for those who exper ience mult idimensional oppress ion and foster progressive social change. However , as Mary Eaton has written: ' [njevertheless, the difficulty that ar ises when the ex igenc ies of the sys tem are offered as reasons in themselves to shelve quest ions of difference is that the need to inquire into the nature and extent of difference often is downplayed or d ismissed a l together . ' 1 0 9 But these quest ions simply cannot be left unexplored. Indeed, it may be that anti-discrimination laws can be deve loped, changed in such a way that they will be better able to effectively address the issue of mult idimensional o p p r e s s i o n . 1 1 0 Regard less , what I have attempted to articulate in this chapter is that the obfuscat ion and mariginalization of our difference(s), and the fragmentation of our complex identity(ies) as queer people, does not first occur as we enter the courthouse. It is a process which conspi res against us in our everyday l i ves—when we are told not 42 to bring home the 'white man 's d i seases ' or are told 'not to confuse the issue of sexual orientation oppress ion with race and racism. ' The corollary is that until we begin the process of exploring and embracing our shared difference(s)—in all aspec ts of our l ives, personal (and) pol i t ical—we will be unable to effectively utilize any positive developments within human rights law. C O N C L U S I O N Throughout writing this chapter I have recalled the potent words of Sojourner Truth, recorded in 1851. S h e had been shushed by white women who did not want to 'obscure ' the matter of a universal f ranchise with the issue of abolit ion. But tired of l istening to the c la ims of white men—that 'women' could not have a public life because of their 'delicate nature '—she finally dec lared: Look at my arm! I have ploughed and planted and gathered into barns, and no man could head me—and ain't I a w o m a n ? I could work as much and eat as much as a man—when I could get it—and bear the lash as wel l ! A n d ain't I a woman? I have born thirteen chi ldren, and seen most of 'em sold into slavery, and when I cried out with my mother 's grief, none but J e s u s heard me—and ain't I a w o m a n ? 1 1 1 In the debates about the liberation of queer people within this society, both race and racism are i ssues , among others, that are either often either ignored or confused. The concept of 'sexual orientation' has been constructed in a manner that categor izes, and the categor ies it creates seeming ly do not permit considerat ions of racially based d i f fe rences . 1 1 2 Even if the term 'queer' may be commonly used to avoid patently discreet categor ies—l ike gay, lesbian, b isexual , t ransgender etc.—it has a hollow ring in the mouths of some . I would argue that for many, but certainly not al l , the term 'queer' is an unexamined concept , little more than a linguistically convenient tool for avoiding the 43 epithet that one is being 'exclusionary. ' The concept of 'sexual orientation' has despite cha l lenges remained like blinkers through which issues 'unrelated to sexuality' are deemed non- issues for the 'queer' community. I hope I have given some pause to reconsider the morality and honesty of that approach. Al though all queer people share one or more communi t ies of interests related to heterosexism and homophobia , in order to chal lenge these we must a lso (perhaps first) recognize our difference(s). Fo r in the recognit ion of these difference(s) l ies a wealth of perspect ives that may be used to chal lenge the integrity of the boundary of 'sexual orientation' and 'heterosexism' themsleves. A s Hutchinson has written: Mult idimensionali ty exposes the var ious layers of socia l power that inform heterosexism and homophobia. Mult idimensional analys is a lso reveals the multiple d imens ions of socia l identity categor ies and offers a comprehens ive framework for conceptual iz ing sexua l subordinat ion that neither "destroys" nor "fragments" our l i v e s . 1 1 3 The concept of 'Queer ' is now like a mineral rich field, d iscovered and then prematurely left fallow. Within the queer community there is a rich diversity of people. W e must utilize our difference(s), our diversity, rather than shelve away the reality that we differ from each other. It is only by doing this that we will be able to d iscover and use our inter-connectivity in the struggles against heterosexism and homophob ia , in all their complex forms: Quee rness , a construct created in part as a reaction to such retrenchments, facilitates sexual minority res istance to hetero-patriarchy through inter-connectivity and coalit ion-building because it represents a consc ious effort to t ranscend and reconfigure outmoded concept ions of identity and identity-based politics...integral strategies for sexual minority solidarity and toward sexua l minority s u c c e s s in the anti-subordination project. In the chapters to follow, I will continue the exploration of this concept , and the intersectional nature of the oppress ion facing queer people. Consequent ly , I will expand 44 my focus to include extensive d iscuss ion not only of race, but a lso of the implications of oppress ion related to gender, c lass and immigrant status, in particular. I I have used this unusual phrase, rather than the more typical 'people of colour' because in my opinion it emphasizes that although 'white' people also have a race, a colour, in this society non-whites are largely viewed as just that, not-white. 2 1 have used the spelling 'difference(s)' and 'identity(ies)' instead of their accepted spellings to emphasize two interrelated concepts: the first is that although socially, culturally and politically we tend to emphasize one or more aspects of the differences between people, between us, we are all different from each other in a plethora of ways at the same time; the second idea is that the differences we emphasize are often conceptualized as sever-able or severed from our whole selves. Both of these approaches obfuscate the complex reality that the differences between us, and our positions in society are simultaneously and continuously being modified by many, not just one, two, three, four etc. aspects of our identities. 3 See for example: Urvashi Vaid, The Mainstreaming of Gay and Lesbian Liberation (New York: Doubleday, 1995) [hereinafter 'Vaid']; Darren Lenard Hutchinson, "Out Yet Unseen: A Racial Critique of Gay and Lesbian Legal Theory and Political Discourse" (1997) Vol. 27, Number 2 Connecticut Law Review 561 - 645 [hereinafter 'Hutchinson']; Lisa C. Bower, "Queer Acts and the Politics of "Direct Address": Rethinking Law, Culture, and Community" (1994) Vol. 28, No. 5 Law and Society Review 1009 [hereinafter 'Bower']; Wayne Morgan, "Queer Law: Identity, Culture, Diversity, Law" (1995) 5 Australasian Gay & Lesbian Law Journal 1 [hereinafter 'Morgan']; and, Darren Rosenblum, "Queer Intersectionality and the Failure of Recent Lesbian and Gay 'Victories'" (1994) 4 Law and Sexuality 83 [hereinafter 'Rosenblum']. 4 Sharon Dale Stone, "Introduction" in Sharon Dale Stone, ed., Lesbians in Canada (Toronto: Between the Lines, 1990) at 9 [hereinafter 'Lesbians in Canada']. Also see: Cynthia Petersen, "Envisioning a Lesbian Equality Jurisprudence" [hereinafter 'Peterson] in Herman, Didi and Carl Stychin, eds., Legal Inversions: Lesbians, Gay Men, and the Politics of Law (Philadelphia: Temple University Press, 1995) [hereinafter 'Legal Inversions'] at 119. 5 Adrienne Rich, "Compulsory Heterosexuality and Lesbian Existence" in Henry Abelove, era/., eds., The Lesbian and Gay Studies Reader (London: New York: Routledge, 1993) [hereinafter 'Lesbian and Gay Studies Reader] at 227 - 254. 6 See Morgan, supra note 3 at 10 -12 where it is argued that one of the most basic missions of 'Queer' theory is the Derridian style deconstruction of the epistemological dichotomy or binary of 'Hetero/Homo' and the most basic binary of 'Identity/Difference.' 7 Nevertheless, I shall continue to use the term 'queer' not only because it is linguistically convenient, but also because if used properly it can be an effective conceptual tool in queer liberation. Of course, my use of that term should not, however, be understood as an implicit acceptance of the notion that as 'queer' people we have a homogenous or fundamental identity. (See my 'Conclusion') 8 Francisco Valdes, "Sex and Race in Queer Legal Culture: Ruminations on Identities & Inter-Connectivities" (1995) 5 Cal. Rev. L. & Women's Studies 25 - 71 [hereinafter 'Valdes'] 9 Hutchinson, supra note 3 at 622. 10 Ibid, in which it is observed that: 'Although several members of the gay political community explicitly reject the importance of incorporating antiracist and poverty concerns in gay and lesbian politics, issues of racial and class subordination are more often marginalized by omission, silence, and neglect.' I I As Mary Eaton has argued, 'sexual orientation' has come to be coded as 'white.' Therefore '[i]f the very notion of homosexuals as an outsider class requires the erasure of race, then to attempt to re-racialize homo-sexuality is to call into question homosexuality's own conception of /tee/fin perhaps the most productive ways.': "Homosexual Unmodified: Speculations on Law's Discourse, Race, and the Construction of Sexual Identity" [Hereinafter 'Eaton'] in Legal Inversions, supra note 4 at 69. 12 Supra note 2. 1 3 Marlon T. Riggs, "Tongues Untied" in Brother to Brother: New Writings by Black Gay Men 200, 205 (Essex Hemphill, ed., 1991) 1 4 Morgan, supra note 3 at 31: 'Queer is about making boundaries between categories problematic. It is an umbrella label for a diversity of "deviant" sexualities: any sexual practice of identity marginalized and 45 "other"-ised by the mainstream...foe real queer threat lies in its claim to "transcend" identity by pointing out the fluidity of identity boundaries.' (Italics added). 1 5 See Valdes, supra note 8 at 69 where he suggests that by moving beyond 'fixed identity primacies' and consequently the 'difference divide/dilemma' we can begin constructing new subjects using 'political identities.' 16 Ibid, at 33: '...difference is neither fatal nor debilitating to the mutual affinity of communities of men and women defined by a shared minority sexual orientation. Neither sex nor race difference should preclude or obstruct sexual orientation coalitions. Nor can sexual orientation coalitions obscure sex and race difference.' 1 7 Many of these other identity(ies) will be the subject of greater focus in other chapters of this thesis. 1 8 For a general discussion of the notion of difference(s) and the dilemma of difference see: Martha Minow, Making All the Difference: Inclusion, Exclusion and American Law (Ithaca, NY: Cornell University Press, 1990) [hereinafter 'Minnow']. 1 9 1 use the term 'race(s)' for two reasons: first, because some of us share more than one race (an often overlooked fact); and secondly, to recognize that the term 'race(s)' may have a great variety of meanings, depending upon the speaker, the audience, the context etc. It has no one, fixed meaning. And like the term difference(s) its meaning does not inhere to a particular person, but exists and fluctuates as part of our relationships with each other. I shall use the character of the '(s)' in the same, or similar ways throughout this piece. 2 0 Speaking about the practice among many activists to portray their essentilist politics - built upon exclusively 'gay and lesbian' issues, uncontaminated with issues of race and class - Hutchinson, supra note 3 says: '[fjhe authors' denial of the racial basis for their theories perhaps results from a tendency of many whites not to perceive that they even have a "race."' at fn 260. 2 A s Valdes, supra note 8 has said: '[t]he urgency of cultivating inter-connectivity, the ultimate point of this Article, is one way to help ourselves neutralize and overcome the identity discordants that all of us have acquired from dominant cultural forces as we endeavor toward a better society.' at 36 (Italics Added) 2 2 Arguably this distortion is not the product of law or the notion of human rights perse but rather a reflection of the distorted image of 'race,' which within society has become the basis for 'racism'. 2 3 'Racism' may be understood as a boundary, and as Minnow, supra note 18 has observed: '...the whole concept of a boundary depends on relationships: relationships between the two sides drawn by the boundary, and relationships among people who recognize and affirm the boundary.' at 10. 2 4 Specifically in the context of queer people, that connection is often celebrated in anthologies written by queer people with colour. See for example: Rakesh Ratti, ed., A Lotus of Another Colour: An Unfolding of the South Asian Gay and Lesbian Experience (1993) and Makeda Silvera, ed., Piece of My Heart: A Lesbian of Colour Anthology (1991). 2 5 Vaid, supra note 3 at 280 laments that: 'I am, after all, who I am: the first Indian and person of colour to run a mainstream gay and lesbian group. Perhaps in this post civil rights era, I must neuter and derace (erase) myself in order to be heard. The point is that simply pointing out the racial dynamics of a situation remains controversial.' (Italics Added) 2 6 See D. Sadownick, Sex Between Men (San Francisco: Harper, 1996) at 215: 'In addition, racism fueled the imagery. "The premium placed on young white boys," author Steven Saylor says, "is really high". "The cachet they carry is apparently what everyone is looking for".' 2 7 See Hutchinson, supra note 3 at 624: 'Julien and Mercer, for example, observe that "in the gay subculture ...[bjlack men...[are] confined to a narrow repertoire of types - the super-sexual stud and the sexual savage on the one hand, and the delicate and exotic 'Oriental' on the other.'" 2 8 People who Vaid, supra note 3 describes in this way: 'During the next three and a half years, incidents of racial and gender intolerance piled up like grime from exhaust, a byproduct of working in a gay and lesbian movement that labors under the same racial prejudice, gender binarism, and heterosexism that weigh down the broader society.' 2 9 Peterson, supra note 4 says at 128: 'As Aguilar-San Juan explains, "[f]or those of us who are Asian, losing connections to our family represents one of our greatest fears, since in this white society, our cultural identity depends precisely on family links'" 3 0 See, supra note 20. 3 1 See, supra note 13. 3 2 See Joan W. Howarth, "First and Last Chance: Looking for Lesbians in Fifties Bar Cases" (1995) 5 S. Cal. Rev. L. & Women's Studies 153 - 172. In arguing that we do not all experience homophobia in the 46 same way she says: 'A lesbian or gay identity is formed, at least in part, in response to, or in resistance of, oppression... As to that repression, especially legal enforcement of societal homophobia, lesbians are not all similarly situated. Perhaps the point be made stronger by comparing anti-gay repression directed at two homosexuals: one male, one female; one professionally powerful, one working class; one white and privileged, one Latina.' at 165. 3 Minnow, supra note 18 has observed that in the context of law, certain assumptions are made about the perspective that matters in judging the world. Regarding these she observes that '[sjuch assumptions about knowledge, categories, and boundaries usually remain implicit and unexamined. Making them explicit permits debate and the exploration of alternatives.' at 12. This, of course, cannot be accomplished effectively if the social movements which seek to challenge those boundaries themselves insist and rely upon one perspective. 3 4 Isabelle R. Gunning, "Stories from Home: Tales from the Intersection of Race, Gender and Sexual Orientation" (1995) 5 S. Cal. Rev. L. & Women's Studies 143 [hereinafter Gunning] at 147: 'Most of us grew up understanding that we were black, and that bad things could happen to us because of that, long before we discovered that we were lesbian or gay.' 3 5 For one of the first pieces written on the subject on the subject of those who experience 'intersectional' oppression and the futility of ignoring this reality, see: Kimberley Crenshaw, "Demarginalizing the Inter-section of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics" (1989) 89 University of Chicago Legal Forum 139. [Hereinafter 'Crenshaw'] 3 6 Discussed in Eaton, supra note 11 at 54 - 56. 37 Ibid, at 56. In this context, it is also interesting to note that some gay black men represent their oppression due to racist-heterosexism in their fantasy drag ball performances: 'What viewers [of Paris is Burning] wit-ness is not black men longing to impersonate or even to become like "real" black women but their obsession with an idealized, fetishized vision of femininity that is white.' bell hooks, "Is Paris Burning?" in Black Looks: Race and Representation at 147 - 48 (cited in Hutchinson, supra note 3 at 574, fn 57) 38 See Hutchinson, supra note 3 at 583: 'Moreover, because race and class also create privilege, these statuses may offer some insulation from forces of oppression.' 3 9 Vaid, supra note 3 at 284 has observed that:'[...] I believe that most gay and lesbian people neither under-stand nor value the importance of multiracial and multi-issue politics. They remain uninterested and unmotivated.' 40 Supra note 9. 4 1 Gunning, supra note 34 at 147: 'Maybe it is especially frightening for black women because, as Barabara Smith once noted, "heterosexual privilege is usually the only privilege that black women have.'" 4 2 For a 'parable' presented and then discussed which demonstrates the divisiveness in part engendered by the obfuscation of difference(s) see Valdes, supra note 8 at 36 - 47. 4 3 Vaid, supra note 3 at 291. 4 4 For example, as Valdes, supra note 8 observed at 38 - 39: 'First, it seems more than simple coincidence that the two panelists who were persons of colour elected to address subjects emphasizing the inter-connectedness and relevancy of other sexually subordinated communities to the legal situation of lesbians, whereas the remaining three panelists, all white, elected to focus exclusively on lesbian issues as such.' 4 5 See for example: D. Lisa Powell, "United Lesbians of African Heritage" (1995) 5 S. Cal. Rev. Law & Women's Studies 81 [hereinafter 'Powell'] and Sheila M. Aguilar, "Los Angeles Asian Pacific Islander Sisters (LAAPIS) (1995) 5 S. Cal. Rev. Law & Women's Studies 75. 4 6 For the devastating impact this has had in terms of the rates of infection with the HIV virus in the communities of people with colour, and the consequent formation of organizations formed to specifically address the needs of these communities, see: Alonso, Ana Maria, and Maria Teresa Koreck, "Silences: 'Hispanics,' AIDS, and Sexual Practices" in Lesbian and Gay Studies Reader supra note 5 at 110 -126. Also see Vaid, supra note 3 who argues that the 'mainstream' gay and lesbian community failed to incorporate into policy making regarding the struggle against AIDs issues of race and class through a process that she calls 'Decoupling AIDs from Systemic Reform': at 86 - 105. 4 7 In speaking about her experiences of racism and sexism within queer communities, Vaid, supra note 3 at 276 notes that '[sjometimes the insensitive or frankly racists or sexist behaviour came from white gay men and women. Other times, it came from feminists and people of colour.' 47 4 8 For example, Powell, supra note 45 at 84 describes an event at which both Latinas and black lesbians were invited. It was not a great success. Speaking about the reaction of members of her organization - geared towards black lesbians - after the event: 'But they were so upset with us. We learned that we have to do more educating, we have to do more consciousness building and we have to build more working relationships. We are just going to have to get together more so that we have a consciousness as an entity; so we know "house" music is not the only kind of music that we can have fun with.' 4 9 Vaid, supra note 3 at 278. 5 0 Valdes, supra note 8 describes and rejects this practice, saying at 40: 'Neither sex, race nor sexual orientation can "come first" in the configuration of human identities, politics and communities. I reject this notion of fixed or unitary identity because the sense of primacy it protects belies human experience, not to mention the compelling objections of recent works. Any proposition expressly or impliedly flowing from that notion is therefore untenable. In fact, this notion of fixed identity is not only conceptually unsound, but also politically naive.' (References omitted). 5 1 An inability which goes against the grain of the lived reality of multidimensional oppression: 'We also find it difficult to separate race from class from sex oppression because in our lives they are most often experienced simultaneously. We know that there is such a thing as racial-sexual oppression which is neither solely racial nor solely sexual...' (Combahee River Collective, "A Black Feminist Statement" in This Bridge Called My Back: Writings by Radical Women of Color (New York: Kitchen Table Press, 1983) at 213.) 5 Valdes, supra note 8 says at 41: This reductive and categorical approach to identity not only obscures complexities that truncate discourse, but also creates a politic of exclusion which is detrimental to the necessary politics of coalition that sexual minorities must mount to triumph in a world of majoritarian rule...an exclusionary and self-defeating divisiveness.' 5 3 Vaid, supra note 3 at 269 observes that 'I think one of the main reasons that gay and lesbian political organizations have been unable to tap into larger numbers of supporters is the middle- to upper-middle-class orientation of their agendas, outreach, and representation.' For a general discussion about the way in which particular 'political' perspectives marginalize others within the 'gay and lesbian' social movements see: Didi Herman, Rights of Passage: Struggles for Lesbian and Gay Equality. (Toronto: University of Toronto Press, 1994) 5 4 This is an assumption which is largely supported by the reality of 'gay and lesbian' social movement activism. The relevance of issues and experiences 'unrelated' to 'sexual orientation' are both explicitly rejected by many, and even more often implicitly ignored - given the nature of those issues which are chosen for action and the 'essentialist' descriptions of the gay or the lesbian. For a discussion of these phenomenon generally see: Vaid & Hutchinson, supra note 3 and Valdes, supra note 8. In particular, Hutchinson at 563 observes that in 'the "dominant" gay and lesbian culture and scholarship...issues of racial and class subordin-ation are neglected or rejected and...a universal gay and lesbian experience is assumed.' 5 5 Minnow, supra note 18 at 152 has observed regarding the construction of an 'abstract individual' that: 'Despite the implied aspiration of universal inclusion, the social contract approach has been deeply exclusionary...this conception amounts to a preference for some points of view over others; it takes some types of people as the norm and assigns a position of difference to others (thus adopting the assumptions behind the difference dilemma).' 5 6 I first came across this 'but for' concept in an article written by Crenshaw, supra note 35. Discussing the experiences of Black women in relation to anti-discrimination law she argues that their oppression is left to an extent unanswered because those laws have as their narrow objective only the regulation of treatment based on race or sex. As she says at 151: 'Notions of what constitutes race and sex discrimination are, as a result, narrowly tailored to embrace only a small set of circumstances, none of which include discrimination against Black women.' See also: Nitya Duclos, "Disappearing Women: Racial Minority Women in Human Rights Cases" (1993) 6 Canadian Journal of Women and Law 25 [hereinafter 'Duclos']. For the purposes of this piece, I would argue that an analogous process occurs in the formulation of agendas within mainstream gay and lesbian social movements plagued with identity politics. 5 7 See Ruthann Robson, "To Market, To Market: Considering Class in the Context of Lesbian Legal Theories and Reforms" (1995) S. Cal. Rev. Law & Women's Studies 173 - 184. 5 8 An important line of discussion in these debates concerns whether those who experience multi-dimensional oppression will benefit as much as those who 'do not' experience oppression 'but for' their 48 sexual orientation. For a bibliographic footnote about these debates, see Hutchinson, supra note 3 at 586 -87 , fn 108 & 109. 5 9 This issue will be discussed in greater detail in the following two chapters. 6 0 See for example Nitya Duclos, "Some Complicating Thoughts of Same-Sex Marriage" (1991) 1 L. & Sexuality 31. 6 1 This tragic incident is described in detail by Hutchinson, supra note 3 at 567 - 573. 6 2 Hutchinson, supra note 3 at 571. 6 3 Vaid, supra note 3 observes at 268: T h e emergence of an institutionalized gay and lesbian civil rights movement is in fact linked to the emergence from the closet of professional and middle-class gay, lesbian, and bisexual people. In this respect, we are no different from other reform movements of modern times; reformers seem to be people with the time, luxury and security to engage in the political process.' Also see: Marlee Kline, "Race, Racism, and Feminist Legal Theory" (1989) 12 Harvard Women's Law Journal 115 [hereinafter 'Kline'] also notes at 116 that within the feminist movement, '[white women have] the power to portray our own experiences as wholly representative of the experiences of all women.' 6 4 Vaid, supra note 3 says that '[o]n an ideological level, resistance to tackling racism and sexism comes from gay legitimationists who believe that broadening the movement's scope to encompass race and gender will involve it in issues that are not "our issues.'" at 282. 6 See Valdes, supra note 8 at 48: 'As I have shown elsewhere, the past and present enforcement of sex/gender norms and hierarchies under the conflation of sex, gender and sexual orientation is designed to ensure the cultural and political subordination of lesbians, gay men and other "sexual aberrations" that defy Euro-centric hetero-patriarchy.' and also Hutchinson, supra note 3 who states at 640 that: 'Ultimately, I view multidimensionality as a discursive project aimed at unveiling the complexity of subordination and identity...' 6 6 For example, in regards to the notion of 'immutability' - often used as a basis for protection from discrim-ination related to 'sexual orientation' - Nitya Iyer has observed that: 'By focusing on immutability, the test reinforces an understanding of ascribed social characteristics as intrinsic to individuals, rather than comparative or relational; as inevitable, rather than historically and geographically variable; and as neutral, rather than reflecting a particular pattern of social relations.' (Nitya Iyer, "Categorical Denials: Equality and the Shaping of Social Identity" (1993) 19 Queens Law Journal 179). 6 7 For a general theoretical description of the kind of coalition based political action - one which does not adopt a pre-configured category such as 'sexual orientation' inherited from law - that I would suggest is preferable, see Bower, supra note 3. 6 8 See for example: Diana Majury, "Refashioning the Unfashionable: Claiming Lesbian Identities in the Legal Context" (1994) 7 Canadian Journal of Women and Law 286; and, Peterson, supra note 4 at 119. 6 9 See for example: Douglas Sanders, "Constructing Lesbian and Gay Rights" (1994) 9 Canadian Journal of Law and Society 99 7 0 Morgan, supra note 3 at 28. 7 1 Valdes, supra note 8 at 35. 7 2 For a sample of these debates, see for example: Alan Freeman, "Racism, Rights and the Quest for Equality of Opportunity: A Critical Legal Essay" (1988) 23 Harvard Civil Rights-Civil Liberties Law Review 295 and Patricia J . Williams, "Alchemical Notes: Reconstructing Ideals from Deconstructed Rights" (1987) 22 Harvard Civil Rights-Civil Liberties Law Review 401 - 433. 7 3 Donald G . Casswell, Lesbians, Gay Men, and Canadian Law (Toronto: Emond Montgomery Publications, 1996) [hereinafter'Casswell'] 74 Ibid, at 1. 7 5 Casswell, supra note 73 at 18. 7 6 Casswell, supra note 73 at 18. 7 7 Casswell, supra, note 73 at 17. 78 Morgan, supra note 3 at 12. 7 9 Duclos, supra note 56 at 42. 8 0 As did women of colour in human rights law enforcement, as described by Duclos, supra note 56. 8 1 See for example: Crenshaw, supra note 35 and Kline, supra note 63. 8 2 Casswell, supra note 73 at 18. 83 Casswell, supra note 73 at 556. 8 4 See Casswell, supra note 73 at 567 - 574. An opposite-sex 'fiancee' can on condition that the sponsor and fiancee marry each within a limited period of time after arrival in Canada. 8 5 Casswell, supra note 73 at 572. 49 8 6 See for example: Lisa Marie Jakubowski, Immigration and the Legalization of Racism (Halifax, N.S., Fernwood, 1997). 8 7 Casswell, supra note 73 at 572. 88 Casswell, supra note 73 at 572. 8 9 Casswell, supra note 73 at 570. 9 0 For example Hutchinson, supra note 3 at 607 - 608 argues that is more difficult for 'poor' queer people to be openly queer. Also see supra note 29. 9 1 Bruce MacDougall, "Outing: The Law Reacts to Speech about Homosexuality" 21 Queen's Law Journal 7 9 - 124 [hereinafter 'Outing']. 92 Ibid, at 79 (Precis). The practice of 'outing,' and therefore this article must be understood in its context. I would suggest that it is now commonly accepted by queer theorists that perhaps one of the greatest obstacles to our liberation is the persistence of the 'closet': the lamentable practice of many queer people to either completely submerge their 'queerness' or to lead double lives in which, to varying degrees, their 'queerness' is severed from other aspects of their lived identity(ies). It is within this highly frustrating context that 'outing' developed as a political strategy which it was hoped would facilitate the liberation of queer people. 9 3 Outing, supra note 91 at 109. 9 4 See Hutchinson, supra note 3 says at 602: '[Queer theorists] also marginalize racial and class differences by attempting to articulate "common" experiences of or assumptions about all gay and lesbian people. These common experiences and assumptions, however, may obscure the realities of people of color and the poor.' 9 5 For example, it has been argued that in Hispanic culture, the bi-polar and biological notions of 'male' and 'female' are not as integral as they are in Western understanding of sexuality are not central. Some argue furthermore, that the obfuscation of this fact has had a devastating impact on the ability of those who assume a Western understanding of sexuality to combat AIDs and HIV. See for example Ana Maria Alonso, supra note 46. 9 6 Consider the reaction of the media and the police in the Rivera matter discussed above. As Hutchinson, supra note 3 has observed at 612 that: '...the collision between Julio Rivera's Latino ("macho") and gay ("effeminate") statuses, for example, demonstrate the shifting nature of these seemingly "essentializing assumptions and reveal that many of these prejudices may really reflect heterosexual's society's negative perception of white gays and lesbians (or, possibly, a perception that all gays and lesbians are white). Further-more, stressing the universality of homophobic assumptions may obscure the act that there assumptions interact with, rely upon, and reinforce other negative constructs (such as racial stereotypes).' 9 7 Outing, supra note 91 at 118. 9 8 See for example: Gunning, supra note 34 at 147 observes that: 'We, as African-American women, historically have been unrapeable because we are oversexed and always "want it." We are each the "negress slut." Much of our efforts has gone into trying to convince white people that we are a people with qualities other than stupidity, strength and sexuality.' See Crenshaw, supra note 35 at 157. The Black man suffers from the image of the potential rapist. See Harper, Phillip Brian, "Eloquence and Epitaph: Black Nationalism and the Homophobic Impulse in Responses to the Death of Max Robinson" in The Lesbian and Gay Studies Reader, supra note 5 at 163: 'In the classic text on the subject, Calvin C. Hernton has argued that the black man has historically been perceived as the bearer of a bestial sexuality, as the savage "walking phallus" that poses a constant threat to an idealized white womanhood and thus to the whole US social order.' 9 9 Peterson, supra note 4 at 124 states: 'Cheryl Clarke explains that one possible source of heterosexism in Black communities is the desire of Black Americans "to debunk the racist mythology which says [Black] sexuality is depraved.'" 1 0 0 See Peterson, supra note 4 at 125: 'The legacy of slavery...may contribute to the silencing and enforced invisibility of lesbians in contemporary Black communities.' 101 Ibid. 1 0 2 See supra note 8. 103 Hutchinson, supra note 3 at 603. 1 0 4 Outing, supra note 91 at 118. Gunning, supra note 34 at 146 observes that there seems to be a (mis)per-ception that the Black community is more homophobic. Not only does she reject this notion, but goes on to argue that: Too often white folk in the lesbian and gay community want to latch on to statements or intim-ations that the black community is more homophobic maybe because it releases them 50 from some of the hard and painful work of dealing with their racism, personally as well as organizationally. Perhaps, it allows them to avoid becoming multicultural and multiperspectival.' 1 0 5 Valdes, supra note 8 at 61. 1 0 6 See for example: Crenshaw, supra note 35. 1 0 7 Duclos, supra note 56. 1 0 8 Eaton, supra note 11. 109 Ibid, at 50. 1 1 0 See for example: Mary Eaton, "Patently Confused: Complex Inequality and Canada v. Mossop" Vol. 1, No. 2 Review of Constitutional Studies 203 - 245. At 206 she notes that: 'The subject of my critical intervention is the attempt of the majority of the court to forge a new analytic for addressing complex equality claims. Specifically, the majority seems to have signaled that it is prepared to abandon the so-called "water-tight compartments" approach to human rights interpretation, and that it will not construe sexual orientation and other non-discrimination guarantees in the same restrictive way the lower courts have in the past.' 1 1 1 Quoted in: Crenshaw, supra note 35 at 153. 1 1 2 As Duclos, supra note 56 has argued (at 50) that in the context of anti-discrimination law jurisprudence the problem is not the use of 'categories' perse but the manner in which they are used: as 'blinkers' rather than 'as a "jumping off' point, a springboard providing the opportunity to construct an intricate picture of the stereotypes and relationships involved.' I would argue the same holds true in political discourse and legal theory about queer issues. 1 1 3 Hutchinson, supra note 3 at 640. 1 1 4 Valdes, supra note 8 at 71. 51 Chapter Two: Who Guards the Borders of Canada's "Gay" Community: A Case Study of the Benefits of the Proposed Redefinition of "Spouse" Within the Immigration Act to Include Same-Sex Couples INTRODUCTION: T H E C E N T R A L I T Y O F ' C A T E G O R I C A L ' E Q U A L I T Y In this chapter I focus more directly upon one of two branches of law, namely, legislation and statutorily regulated sys tems. In the chapter immediately following this one I will turn my attention to another important branch of law, that being judge made law, including in particular the application and interpretation of the Charter. In February of 2000 Bill C -23 , An Act to modernize the Statutes of Canada in relation to benefits and obligations was introduced in Par l iament. 1 This Bil l , if passed , will extend the status of "common- law partner" to same-sex conjugal re lat ionships—where it had previously been limited to opposi te-sex unmarried coup les—for the purposes of most federal statutes. Th is new, unified category will therefore incorporate the relationships of both opposite and same-sex unmarried conjugal couples as a bas ic legal 'unit' in several federal ly regulated sys tems and institutions, such as the income tax sys tem. O n e of the few federal statutes omitted from the Bill is the Immigration Ac t . 2 Never the less, the Government of C a n a d a re leased the report Bui lding on a Strong Foundat ion for the 21st Century: New Directions for Immigration and Refugee Pol icy and Leg is la t ion 3 (hereinafter 'New Directions') in 1998. A s the title suggests , '[tjhis document. . .establ ishes the government 's ten broad direct ions' for immigration and refugee pol icy. 4 O n e of those directions is the 'recognit ion of common- law and s a m e -sex relat ionships through regulatory changes . ' 5 The speci f ic type of 'recognit ion' that is proposed is the extension of the ability of a Canad ian to sponsor the immigration of a 52 same-sex ' spouse ' as part of the Immigration Act 's 'family c l a s s ' 6 (hereinafter 'family c lass ' ) . T h e primary practical advantage of inclusion within the family c lass is clear: The application is p rocessed because of the c lose relative in C a n a d a . Appl icants for an immigrant v isa whose appl icat ions are sponsored by a C a n a d i a n cit izen are not required to meet any of the select ion criteria that are appl ied to other applicants...In e s s e n c e , membersh ip in the c lass becomes the select ion s tandard . 7 Although membersh ip within the 'family c lass ' does not mean that a person cannot be exc luded from C a n a d a for reasons of criminal inadmissibil i ty, for example , it does exempt a person from the requirement to pass a po ints-based assessmen t . Currently, the only way a person can migrate to C a n a d a based upon a s a m e - s e x spousa l relationship with a Canad ian is through an 'Humanitar ian and Compass iona te App l ica t ion ' 8 (hereinafter 'H&C' ) . But as a primary method of facilitating the immigration of s a m e - s e x partners to C a n a d a H & C s are problematic. The highly discret ionary nature of these administrative dec is ions results in inconsistency and a lack of t ransparency that can be problematic g iven the possibil i ty of homophobia among individual off icers. 9 The discret ionary nature of the process means there are no fixed criteria. Consequent ly , dec is ions are difficult to chal lenge while homophobia is e a s y to hide. Unlike with H & C s — i n which officers have the flexibility to turn their minds to a potentially infinite range of c i rcumstances that cal l for 'humanitar ian and compass ionate ' treatment—explicit regulatory inclusion within the family c lass is key because it is a finite list. If your relationship is one of the categor ies/ types identified, you are in the c lass ; if it is not, no matter how important a relationship, or how closely it functionally resembles one that is inc luded, you are s imply not on 'the l ist . ' 1 0 Importantly therefore, the proposal on the table is to 'expand the definition of spouse to include common- law 53 and same-sex par tners ' 1 1 (emphasis added) within the category which currently only includes married couples. Equal ly important, the proposal to recognise s a m e - s e x coup les as a type of 'spousal ' (or marriage-l ike) relationship largely accords with the demands of some prominent gay and lesbian socia l movement activists and community groups. For example , the Lesbian and Gay Immigration Task Force summar ised its demands in this way: a single category which would include 'married heterosexual relat ionships, common law heterosexual relationships and same-sex relationships...our bas ic concern is that there be a s ingle ca tegory . ' 1 2 Th is paramount concern for what I have termed 'categorical equality' is a lso reflected in the response of Equality for Gays and Lesbian Everywhere (hereinafter ' E G A L E ' ) : The important quest ion is the criteria used to identify a qualifying relationship, rather than the specif ic label used to descr ibe it. A s a result, Immigration may choose to use language referring to "spouses" , "relat ionships of interdependency", "intimate partnerships" or simply "qualifying relationships". T w o important considerat ions need apply, however: (i) Whatever language is used must not create hierarchies. Fo r example , it would be object ionable to descr ibe heterosexual relat ionships as "spousa l " in nature and relegate same-sex relationships to s o m e "other" c l a s s . . . . 1 3 It is not surprising that the proposed recognition of s a m e - s e x relat ionships as equivalent—both functionally and categorical ly—to oppos i te-sex conjugal relat ionships is cons idered as reason to celebrate by m a n y . 1 4 First of al l , it should be recognized that it has been a long and arduous struggle to get polit icians and governments to recognize, in any way whatsoever , the value of same-sex spousa l relat ionships. Moreover , the demand for categorical equality must be understood in the context of a broader shift within gay and lesbian socia l movements in recent y e a r s . 1 5 In the early 1970s gay and lesbian act ivism was more often character ised by highly charged, 54 l iberatory inspired demands for recognition and respect of the different sexuali t ies and lifestyles of gays and lesbians. However, by the 1990s most socia l movement groups were fixated on eschewing any and all di f ferences between gays and lesbians and mainstream heterosexual society, or as I shall argue, its ideological m o d e l . 1 6 Genera l ly , demands for the liberation of gay and lesbian sex from the socia l and legal shack les of heterosexist normativity have been replaced with c la ims for incorporation within the mainstream based upon the fundamental ' sameness ' of same-sex and opposi te-sex relat ionships: By the late 1980s. . . "homosexuals" were portrayed...in short, as a c lass not decidedly distinct from heterosexuals and wrongfully stereotyped as sexual ly odd or different. That the types of c a s e s which have been brought forward have shifted so markedly in the direction of spousa l or family c la ims is ev idence of this, as is the way those c la ims themse lves have been f r amed . 1 7 The three main aspects of these types of c la ims, such as that for inclusion within the family c lass , are these: (1) we are the same , therefore (2) we want to be treated similarly, through (3) inclusion in the same categories as married people and opposite-sex unmarr ied spouses . T h e s e three distinct aspec ts , when comb ined , constitute what I shal l refer to in this chapter as the 'formal equality' approach to re fo rm. 1 8 Al though the first of these is the thematic focus of this chapter, as I shal l d i scuss in the Conc lus ion it is when all three combine—forming an impenetrable core 'truth' about the tenets of gay and lesbian equal i ty-seeking—that the ability to even imagine, let a lone strive for broad-based progressive social change for the benefit of queer people is severely hampered. Turning now to the central focus of this chapter, one of the most troubling aspects of the formal equality approach to reform is not a lways its goals , perse, but the essential ist assumpt ion which underl ies the approach itself: that is, that there is a group 55 cal led 'gays and lesbians ' (and/or people who have ' same-sex relationships') which is homogeneous . A s Nitya Duclos has observed: '[i]n arguing that a same-sex marriage bar is bad (or good), we implicitly assume a universal s a m e - s e x fami ly . ' 1 9 In other words, this approach a s s u m e s a universal and singular commonal i ty of interest based on sexual orientation. Converse ly , we also tend to assume a universal opposi te-sex family. The most obvious implication of this is that the dif ferences among q u e e r s 2 0 , in our relationships and even in our different aspirat ions and interests, are all submerged . However, categor ies are necessary , s ince without them we would be incapable of holding the complexity of the world in our minds. Never theless, we must be vigilant about the ways in which w e utilize categorical thinking. Categor ies do not simply mirror reality. In many ways they create it, they mould it like carnival mirrors. A s s u c h , we must be cautious of the ways in which categor ies are appl ied, in particular, in assuming that they demarcate a singular and universal commonal i ty of interest. In this chapter I will cont inue the process of v igorously interrogating 'our' di f ferences, the extent to which our interests as 'queer people ' both converge, and diverge. I will quest ion the ways in which 'we' differ general ly and in particular as regards our interests and aspirat ions vis-a-vis the Canad ian immigration sys tem. Is it likely that we , all of us, will benefit from the proposed redefinition of ' spouse ' in the immigration regulat ions? Will there be any correlation between the ability to a c c e s s the benefits of these proposed reforms and race, c lass , gender, ability etc.? W h o among us is posit ioned to suffer greater d isadvantage, or the increased potential of harm in connect ion with ' success ' ? How can we tailor our demands so that the least harm is done to those least able to absorb more d isadvantage? Ultimately, the central quest ion explored in this 56 chapter is: 'Should gay and lesbian equal i ty-seeking groups be seek ing the recognit ion of gay and lesbian relat ionships through a redefinition of the term "spouse" within the immigration regulat ions?' This type of quest ion, sadly, is all too uncommon within political and academic ana lyses about how best to recognise the value and equality of gay and lesbian relationships. O n e of the primary benefits of being recognised as ' same-sex spouses ' (namely formal equality with opposi te-sex relationships) is as c lear a s ink on paper, whereas substant ive d isadvantages and limitations must be searched for, explained and proven; a burden of proof difficult to d ischarge given the complexi ty of the issues and the apparently hegemonic consensus regarding the benefits of incorporation within spousa l categor ies. This v iew is reflected in the leadership of John Fisher , execut ive director of E G A L E : A s F isher points out, E G A L E needs a "cohesive response that we can put to M P ' s . " Trying to redefine benefits so that they are not based on relat ionships at all would be very difficult because "it would divert the debate away from lesbian and gay equality issues to policy issues which we're not really mandated or competent to p ropose . " 2 1 Even when these complexi t ies are d i scussed , attempts to problematize or de-centre the formal equality approach to same-sex relationship recognit ion are often resisted by reference to three arguments: first, the affirmation of the equality of 'gay and lesbian famil ies' is of paramount importance; secondly , most object ions are pedant ic in their emphas is on abstract theory (usually of feminist origin) about either remote, or downright inappl icable, risks of harm; and thirdly, all that is being sought is the right of those who wish it, to ' choose ' spousa l recognit ion. I intend to use the amendment of the family c lass as a case-s tudy to illustrate and clarify the ways in which these three arguments in particular are, in my opinion, improperly dep loyed to rhetorically s i lence 57 those who are legitimately critical of, or s imply quest ion the value presumptively ascr ibed to same-sex relationships of queer people being incorporated general ly into the legal sys tem as 'spousal . ' Fundamental ly , formal equality is extremely difficult to de-centre because although I have spoken of it as an 'approach, ' as Smith has argued it is no longer considered simply an approach, or strategy for reform, but has become 'the' ultimate goal of reform. For example , E G A L E ' s work is descr ibed in this way: For E G A L E , lesbian and gay rights were defined in terms of formal equality or similar t rea tment . . .EGALE 's push for equality and antidiscrimination measures w a s not connected to any broader socia l and political analys is of the power relations affecting sexual i ty and sexual orientation identity. 2 2 To be fair, the assumption of groups such a s E G A L E is that the ' legal ' recognit ion of same-sex ' spousa l ' relationships will in large measure rectify the historic 'soc ia l ' invisibility of gay and lesbian famil ies, or s o the argument goes . Never the less, I think that for the most part, Smith is correct in that the formal equality has become a self-justifying legal objective held high aloft of political d iscourse and contest about the appropriate goa ls of and strategies for achieving socia l change . In this chapter, however, I will insist upon understanding formal equality a s just one among many possib le approaches to social and political reform. Converse ly to the approach taken by E G A L E , I will focus upon a r igorous explorat ion of s o m e of the policy issues assoc ia ted with same-sex 'spousa l ' recognit ion. By resisting the assumed universal commonal i ty of interest of queer people, and instead studying the proposed reforms from the complex and mult i-dimensional perspect ives and socia l locations of queer people, I hope to demonstrate that it is indeed the formal equality approach to reform which has become pedantic in its dogmat ic assumpt ion of its own value. Far 58 from being reflective of some neutral truth about queer ex is tence (such as , for example , that we would all benefit from same-sex 'spousa l ' recognition) the formal equality approach to reform is very political indeed insofar as it centers and natural ises a perspect ive which is quite middle-c lass, white and male in its partiality. It is this partiality of perspect ive, I will argue, which promotes the obfuscat ion of the contradictory implications of queer relationships being recognised—whether by choice or as a consequence of more coercive m e c h a n i s m s 2 3 — a s 'spouses . ' The formal equality approach to reform is one which cannot even comprehend the reality that at the s a m e moment that ' spousa l ' status is being transformed to include s o m e same-sex couples, the trend towards the privatisation of socia l and economic responsibil i ty for 'dependants ' is gaining strength by equal measure . O n an interrelated, yet separate point, S u s a n B. Boyd has commented that '...the incorporation of lesb ians and gay men within family law may be as much about the domest icat ion of deviant sexual i t ies within a safe, useful and recognisable framework than about the transformatory confounding of normative sexua l i t ies . ' 2 4 Therefore, any reform to Canad ian immigration law based strictly and exclusively upon the dictates of formal equality may prove, for those queer people who are too poor, too ethnic or too gender(ed) female, to be little more than an illusory benefit, or worse yet, an additional burden. T H E T H E O R E T I C A L F R A M E W O R K : TRADITIONAL F A M I L I A L I D E O L O G Y & D E C O N S T R U C T I N G G R O U P IDENTITIES Many of the legal concepts and institutions related to family, spousa l status and marriage have become ideological insofar as their meaning, value and role within the distribution of benefits has become a matter of common s e n s e . 2 5 J a m e s Hathaway has clarified how 'family' is naturalised in the context of the immigration sys tem: 59 If it is true that family reunification is "the cornerstone" of Canad ian immigration policy, the quest ions remains why one would opt for such a policy. The usual answer is simply that family reunification is "a sacred subject," that is only "natural" that "families" be al lowed to live together...Yet the empir ical basis for this facile position has recently come under overdue scrutiny... 2 6 (emphasis in original). Yet , it is based upon precisely this sort of naturalised concept of 'family' that the amendment of the definition of ' spouse ' to include same-sex coup les is premised. The proposed change is descr ibed as part of a natural evolution of the meaning of 'family' and therefore required because of the importance of promoting that institution within the immigration sys tem through family reunification: C a n a d a has a long tradition of support ing the reunification of Canad ians with their c lose family members from abroad. Fami ly reunification enr iches the l ives of those involved and strengthens Canad ian communit ies. In recent years , the characterist ics of Canad ian famil ies have changed . New immigration and refugee protection legislation should support family reunification by responding to new socia l real i t ies. 2 7 It should be noted that by framing the changes in this way, New Directions e rases years of active discrimination against and oppress ion of s a m e - s e x spousa l famil ies. S a m e - s e x coup les are portrayed as having no history prior to more recent, progressive socia l c h a n g e s — s o o n fol lowed by the endorsements of Cour ts and governments. The al leged centrality of family reunification begins to look a bit tenuous, however, when it is cons idered that the number of family c lass immigrants that the government of C a n a d a has p lanned to al low into the country has dropped in relation to total immigration from 4 7 % of total in 1996 to 3 1 % for 1999 (a drop of 16 per cent in three years) ; a policy trend which is matched by an actual decl ine in landings of members of the family c l a s s . 2 8 Converse ly , economic -based immigration has exper ienced an impressive upsurge from four per cent of arrivals during parts of the 1980s to approximately 50 per 60 cent more recent ly . 2 9 Family reunification s e e m s therefore to be an increasingly weak 'cornerstone' indeed. G iven this conf l ict—between the rhetoric of centrality employed to justify the 'expans ion ' of the family c lass , and the reality of ever diminishing numbers—it s e e m s only sens ib le to examine more closely the meaning and p lace of 'family' within the immigration sys tem. In this regard the feminist concept of 'traditional familial ideology,' which has often been appl ied in the relationship recognition debate, is a useful analytic tool. The family ideology/family reality (or realities) distinction al lows us to hypothesise that although 'the' family remains a pivotal concept, strategically employed at various moments within the d iscourse of immigration, in certain ways the types of acceptable famil ies are getting fewer and the boundar ies of 'the' family getting tighter. In other words, the proposed amendment to the definition of ' spouse ' to include s o m e same-sex spousa l units is only one aspect of a broader redefinition, rather than s imple expans ion, of the 'family c l ass ' category. The authors of the New Directions report summar ised their proposals in this way: 'a reinforcement of the family c lass as the traditional cornerstone of C a n a d a ' s immigration program, with significant liberalisation in some areas coupled with equally significant restriction in others...'30 (emphasis added). Consequent ly , the amendment of the family c lass within the immigration context 'might be understood as more multivalent, carrying both the charge of containment and the positive charge of l iberat ion. ' 3 1 Particularly within the highly pol iced immigration sys tem, the charge of containment may be a significant force indeed. A s Satzewich has argued, 'the state not only plays a central role in select ing and defining who is an appropriate individual...but also... in the engineer ing, the formation of immigrant fami l ies . ' 3 2 A s I shall argue shortly, one of the ways the immigration sys tem 'colonizes ' 61 immigrant famil ies is through the division of spousa l units into the strictly hierarchical and stringently enforced roles of a 'dependant ' who is reliant upon a private 'sponsor ' for all his or her needs. G iven this potential, at the very least, for colonisat ion, it s e e m s only logical to explore in detail which aspec ts of membership within the family c lass are appeal ing, which are not, and to whom. The retort that 'we just want gay and lesbian famil ies to be affirmed' s e e m s vapid with the addition of 'as what? ' . W h e n the same-sex /oppos i te -sex distinction becomes the so le point of compar ison, analys is of the benefits (and d isadvantages) of inclusion within a category is inappropriately truncated such that an exploration of the complex nature of an institution, such as ' spousa l status', becomes a theoretical impossibil ity. Gav igan has made this point by reference to the problematic concept of 'heterosexual privi lege': Heterosexual privilege posits a [false] bifurcated gender-neutral dyad of homosexual i ty/heterosexual i ty. . .The analys is must be extended to explain core familial phenomena in our country such a s : wife assaul t and child abuse ; the presumed dependency of a woman in need of either social ass is tance or a job upon a man; the enforced dependency , or poverty, of many sponsored immigrant women ; and the terrible isolation of the battered woman whose first language is not one of the official languages. . .The concept of heterosexual privilege does not even begin to do t h i s ? 3 O n c e the spec ious simplicity of the heterosexual privilege framework of analys is is revealed, it a lso becomes poss ib le—perhaps even conceptual ly necessary—to explore the implications of inclusion within a category from var ious perspect ives or socia l locations. The a s s u m e d universal commonal i ty of interest of queer people begins to fracture when the actual life c i rcumstances of different people are cons idered. For example, the implications of inclusion as a 'dependant ' within the family c lass is different for a poor 62 immigrant woman who is unemployed and unable to speak Engl ish than for a professional ly employed immigrant man. W h e r e a s for the man, in the scenar io descr ibed, the implications of being deemed a 'dependant ' upon his spouse might well be merely terminological, it is impossible to say the s a m e for the w o m a n . It is no doubt true that both individuals share a common interest in the recognit ion of the dignity of their same-sex relationship; however, it surely cannot be said that they share the same interests in being recognized as dependants upon their spouses . A person 's c lass , gender, race, ethnicity etc. will therefore all intersect, s imul taneously influencing whether, how and where one fits within a legal institution and the traditional family ideology upon which it may be pat terned. 3 4 Th is complexity does not weaken , but rather reconfirms the family ideology critique; it demonstrates that insofar as our socia l locations are var ied, so too are the plethora of ways in which we may be d isadvantaged by our dissimilarity, or advantaged by our similarity to that ideological n o r m . 3 5 In other words, an exploration of our var ious social locations not only helps to trace out the gaps between the ideological norm and people 's actual l ives, but a lso to shade in the ways in which these norms actually infuse our l ives. Henning observed this about activists who lobbied for the creation of 'registered partnerships' which would be avai lable to s a m e - s e x coup les in Denmark: T h e emphas is lay on the principles of equality, f reedom and justice. The realization of these principles was often presented as a value in itself.... ' 3 6 Us ing the concepts of family ideology and ant i -essent ia l ism, I will chal lenge the value automatical ly ascr ibed to the principles of formal equality. The amendment of the definition of ' spouse ' in the family c lass to include certain s a m e - s e x relat ionships is not inherently posit ive; on the contrary, its implications will be complex, b iased and even contradictory in its potential to affirm the 63 dignity and equality of queer people and recognise queer famil ies. The formal equality approach to reform falsely den ies this complexity thereby severely limiting the progressive potential of the recognition of our relat ionships. I turn now to just such a detai led identification of some of the components of the family c lass so that the implications of inclusion within that category can be ana lysed from severa l perspect ives. M E R E L Y ' I D E O L O G I C A L ' C O N C E R N S (FOR W H O M ) ? S u s a n B. Boyd has written that '[t]he ideological role of law is to transform "the human subject into a legal subject" and thus " inf luence] the way in which participants exper ience and perceive their relations with o thers . ' " 3 7 A long these l ines, a key feminist critique of marr iage and other legally regulated ' spousa l ' relat ionships is that they are patriarchal institutions that convert women into dependants upon men and consequent ly , reinforce their vulnerability to oppress ion and a b u s e . 3 8 Therefore, although not an automatic consequence , one of the potential dangers assoc ia ted with same-sex marr iage has been descr ibed in this way: By favouring relationships similar to heterosexual marr iage, it would induce women—or homosexua ls in general—to form such relat ionships, and thus place them in economic dependency , socia l isolation, emotional stagnat ion, physical v io lence, and repressed conf l ic ts . 3 9 A separate yet interrelated issue is that these risks must be set against the larger context of the trend to privatise socia l and economic responsibi l i t ies within family uni ts . 4 0 For example , Margot Young descr ibed some of the factors influencing the content of the Soc ia l Union Framework between the federal government and the provinces, except Q u e b e c , in this way: The first is the course of evolution of the Canad ian welfare state, in particular, the current ascendance of neo-l iberal ism as the orthodoxy of state restructuring. Advocacy of restricted state involvement in social and economic spheres is paired with an enhanced emphas is on individualism 64 and the role of private structures - the market, communi ty and family - in providing support serv ices and distribution of resources previously del ivered by the state. The result has been government retrenchment and the reduction of socia l program funding at both the federal and the provincial l eve l . 4 1 The d iscourse of privatisation of socia l responsibil i ty is not, however, limited to the sphere of government pol icy-making. In the recent decis ion of M. v H.42 the Supreme Court of C a n a d a considered the c la im—made by a woman who had been in a same-sex relationship for a number of years—that the Ontario Family Law Act (hereinafter F L A ) was discriminatory contrary to sect ion 15 of the Charter insofar as it limited the ability to apply for spousa l support to opposi te-sex couples (married or common- law). The Supreme Court of C a n a d a found that this limitation did indeed constitute unfair discrimination contrary to sect ion 15 that was not justif iable under sect ion 1. Writing for the majority of the Court, Cory and lacobucc i , J J . identified the legislative objectives of the F L A as : [...] a means to provide "for the equitable resolution of economic disputes that ar ise when intimate relat ionships between individuals who have been financially interdependant break down" and to "alleviate the burden on the public purse by shifting the obligation to provide support for needy persons to those parents and spouses who have the capaci ty to provide support to these i nd i v i dua l s " 4 3 Having defined the objective in this way, Cory and lacobucc i , J J . conc luded that excluding same-sex couples from this part of the F L A w a s not rationally connected, but w a s rather counter to the objective of this legislation and reasoned further that: [...] in contrast to Egan, supra, where Sop inka J . relied in part on incremental ism in upholding the impugned legislation under s. 1 of the Charter, there is no concern regarding the f inancial implications of extending benefits to gay men and lesbians in the c a s e at bar. A s already pointed out, rather than increasing the strain on the public coffers, the extension will l ikely go some way toward alleviating those concerns because s a m e - s e x couples as a group will be less reliant on government welfare if the support scheme is avai lable to them. Thus , I conc lude that 65 government incremental ism cannot constitute a reason to show deference to the legislature in the present c a s e . 4 4 In the context of the immigration sys tem, the legal convers ion of immigrant ' spouses ' into 'dependants ' is a lso quite explicit, indeed, it is identified as a policy goal supported by codif ied definitions and draconian enforcement measures . In the New Directions report the authors are clear that the extension of spousa l status to same-sex couples should very much be contingent upon the 'proper' ro les—a C a n a d i a n 'sponsor ' responsib le for a 'dependant ' immigrant spouse—be ing maintained: 'P roposed measures would recognise the evolution of the Canad ian family; at the s a m e time, they would ensure that sponsors live up to their obl igations to provide support to newly arriving family m e m b e r s . ' 4 5 Mandat ing this support is a regulatory definition of the term 'dependant ' as including 'spouse[s] ' and a requirement that the Canad ian 'sponsor ' s ign a contract in which he or she 'undertakes to provide for the essent ia l needs of the member and the member 's accompany ing dependants for a period of 10 y e a r s . ' 4 6 Most importantly, the purpose of the undertaking is not to ensure that family c lass immigrants get support, but rather to ensure that they not seek support outside their 'family'. The sponsorsh ip undertaking (and the several statutory provisions that refer to it) serve to restrict the a c c e s s of immigrants to a broad range of socia l se r v i ces . 4 7 For example , pursuant to sect ion 51 of the general regulations of the Ontario Works Act, 1997, S . O . 1997, C .25 -A—the Ac t which regulates the provision of general welfare ass i s t ance—a person with respect to whom an undertaking was given will have, in certain c i rcumstances, an amount deducted from avai lable payments even though he or she no longer res ides with or in fact receives any f inancial support from the s p o n s o r 4 8 The result of this type of legal binding of immigrant spouse to sponsor , combined with 66 systemic oppress ion , is that 'for many immigrant women in C a n a d a , especial ly the poor, the opportunity to be independent from their spouses , both in fact and in law, is virtually imposs ib le . ' 4 9 Within the context of debates about the implications of being recognised as same-sex spouses , this kind of analys is is often d ismissed as having little predictive value because , it is argued, same-sex relationships avoid the hierarchical pull of gender. For example , as one supporter of the right of same-sex coup les to get married puts it: ' same-sex coup les getting married can powerfully chal lenge gender roles and thus destabi l ise s e x i s m . . . . ' 5 0 But consider then the exper ience of same-sex spousa l immigration in Austra l ia: A quest ion raised by the research is about the forms of relationships which, beyond the dependency imposed by migration, do not apparently exhibit the dominant Western ideology of equality in relat ionships. In the male study group relationships that are unequal in terms of age, educat ion, and f inancial status may have been entered into precisely because of these factors. Th is appl ies to both Austra l ian resident and overseas partner. It is my impression that the desire for a partner, combined with attraction to younger men, social isat ion in the old patron-protege sys tem, and the economic advantages of North Amer i cans over Third Wor ld peoples , all combine to lead a disproport ionate number of older homosexua l men to seek a partner from the populat ions of those Third world countries where youth is still soc ia l ised to respect and defer to elders.. . . 5 1 How should the Austral ian exper ience be understood? O n e might argue that it demonstrates that there are numerous axes , 'other' than gender, upon which power inequalit ies within legally regulated relationships can develop. I think, however, that in the context of this debate it is perhaps a lso insightful to understand that these 'other' axes may become for same-sex couples a gender ing force. Often within the context of spousa l relat ionships in particular, gender is a factor of how dependent one person is upon another more empowered party in the relationship. Al though this inequality often 67 corresponds to the respect ive sexes of the parties, sex is not necessar i ly the source of that inequality. One important source is usually t raceable to the complex network of laws that regulate var ious aspects of the institution of ' spousa l ' status. Examp les of this type of 'dependency enforcing' law are legion. They range from the obscene ly explicit example of the 'spouse in the house ' r u l e s 5 2 (used to force recipients of socia l ass is tance to rely upon a person deemed to be their ' spouse ' for f inancial support even though they prefer, often with very good c a u s e , to maintain their i ndependence 5 3 ) to the more general promotion of spousa l relat ionships of economic dependency within the income tax s y s t e m . 5 4 Therefore, the assert ion that same-sex couples will automatical ly avoid the dependency promoting influence of legal institutions, historically mainly exper ienced by those in opposi te-sex relationships, obfuscates the fact that these institutions do not simply act upon 'gender ' but create it and reinforce it. They are not only 'gendered' but 'gender ing' insofar as they promote and reinforce dependency within spousa l relat ionships. Whether or not this understanding of 'gender' is accepted, at the very least it is folly to a s s u m e that same-sex relat ionships are inherently immune to the institutional promotion of dependence within spousa l relat ionships, whatever it is cal led. More fundamental ly, starting from the position that s a m e - s e x relat ionships are devoid of power inequalit ies is clearly mistaken. For example , spousa l abuse is usual ly cons idered as a problem that affects women in opposi te-sex relat ionships. A s such , abuse within same-sex intimate relationships remains pitifully under- researched. However , the literature suggests that within male-male relat ionships violent abuse may be even more common than in male-female re la t ionships. 5 5 The situation of those in female- female relat ionships is no better. One study indicates that of those surveyed, 68 3 9 % were in abus ive relationships and 7 2 % of all respondents considered v io lence/abuse to be a problem among l e s b i a n s . 5 6 G i ven this and other forms of potential power inequality within same-sex relat ionships, it s e e m s unwise to d ismiss the institutional promotion of dependency within 'spousa l ' legal sys tems and institutions as merely ' ideological ' concerns which do not pose any risk of ' real ' harm for those in same-sex relat ionships. T h e s e issues may themselves be compl icated by a person 's c lass or race, to name only two factors. For example , the choice and ability of a woman to leave a relationship in which she is being abused is very much constrained by her level of economic dependency upon the abusive partner. 5 7 Island has noted that, '[s]imilar to many straight battered women , many battered gay men are...f inancially dependant on their violent partners. . . . 5 8 The situation may be worse for lesbians who, given the feminisation of poverty, are more likely than gay men to be poor and consequent ly unable to survive without someone with whom to pool resources and share expenses . S u s a n B. Boyd has pointed out that like women of colour, who often exper ience the state as oppress ive, lesbians (regardless of their race) may also reasonably perceive state involvement in their l ives as threatening and may therefore be particularly reticent about inviting state intervention into their family life, even if it is a b u s i v e . 5 9 For immigrant spouses , this reluctance to contact the police or other state authority might a lso be motivated by fears of losing immigration s ta tus . 6 0 If they are await ing landing within C a n a d a , until they are landed, their immigration status is indeed precar ious 6 1 and their vulnerability to abuse great: T h e greatest fear of those whose status to remain in C a n a d a is uncertain or unknown to them is intervention by immigration authorit ies... . ' 6 2 For a s a m e - s e x spousa l immigrant this fear may be compounded if their country of 69 origin is particularly homophobic and they have effectively severed ties with their support networks back home, or 'encouraged ' persecut ion at the hands of state authorit ies, by coming out as a ' same-sex spouse. ' It should be noted that there is provision within the H & C process for immigrant spouses who leave abusive re lat ionships. 6 3 However, this is a highly discretionary remedy lacking in t ransparency and cons i s tency . 6 4 Moreover , even this remedy of last resort is imbued with c lass-related obstac les: one of the factors explicitly identified as relevant is whether 'there is a significant degree of establ ishment in C a n a d a ' 6 5 which is demonstrated by, among other things, a 'stable employment ' and 'sound financial managemen t . ' 6 6 A truly vic ious cyc le of enforced dependency is thereby completed for many immigrant spouses : a spouse who is economical ly dependant upon an abusive sponsor is by equal measure less likely to receive a posit ive H & C discret ionary exempt ion, and as such , is even more dependant upon their abus ive spouse for immigration status. Th is need not be so . Sect ion 37 of the Immigration Act author ises the Minister (and by proper delegat ion, senior immigration officials) to issue 'Minister 's Permits ' al lowing a person without permanent res idency or c i t izenship to remain in C a n a d a for up to three years , without being landed, even if they are otherwise removeable from the country. Despi te years of lobbying by both immigrant and women 's rights groups, the government of C a n a d a has yet to adopt guidel ines making the i ssuance of Minister 's Permits standard for women who have credible c la ims of being abused , thereby affording them an opportunity to establ ish themse lves within C a n a d a before having to apply for permanent res idence. This cyc le is sadly all too consistent with the broader situation of spousa l abuse insofar as it is character ised by the individuation and privatisation of systemic 70 inequalit ies. In other words, not only do many of the laws regulating spousa l status encourage the dependence of one party upon another, when that power imbalance is abus ive, the responses tend to ignore (and thus exacerbate) the systemic aspects of inequality and oppress ion. The inadequacy of the H & C response to spousa l abuse is therefore open to the s a m e crit icism levied against the broader pract ice of 'deal ing' with it as if it were exclusively a private criminal matter: By its very nature, a criminalization strategy is completely inattentive to the role of power, its inequitable distribution based upon gender, race, c lass , disability, and sexual orientation, and the role which the public state plays in perpetuating these imbalances of power . 6 7 For example , it has been argued that many abused spouses will be unable to leave until there are general 'welfare reforms that ensure women can survive economical ly without their husbands income. . . . ' 6 8 Currently, a poor abused spouse economical ly dependent upon his or her partner may be effectively t rapped, unwilling even to call the pol ice for fear of becoming destitute if the abus ive spouse is ja i led. Fo r an immigrant 'spouse'— inc luding one that is ' landed' as a permanent resident—the situation may be even more grim s ince he or she is, by regulation, defined as a spousa l 'dependant ' and as such not expected to receive social a s s i s t a n c e . 6 9 Consequent ly some socia l service agenc ies will presumptively reduce by law their a l ready meagre monthly a l l owances . 7 0 The ways in which the immigration sys tem and the legal sys tem more general ly respond to spousa l abuse can be understood, therefore, as the privatisation of systemic oppress ion. Insofar as these responses fail to address , and consequent ly exacerbate systemic inequalit ies they trap abused spouses , privatise and contain their systemic inequality and oppress ion , within those relationships. 71 Of course, what I have termed the privatisation of systemic oppress ion will not affect all spouses s imi la r ly . 7 1 Obviously, it is those who exper ience systemic oppress ion who risk its privatisation within a spousa l arrangement: It is a lso important to observe that the potential for harms descr ibed above, and thus the exper ience of fear, are not evenly distributed among women . Rather, their distribution is demarcated a long c lass , race, ethnicity, and cit izenship status l ines. The var ious reasons identified above suggest that it is racial minority w o m e n , poor women , and immigrant women , (these are of course not mutually exc lus ive categories) who are likely to be exposed to the greatest risk of h a r m . 7 2 Consequent ly , spousa l status has the capacity to exacerbate systemic oppress ion not only within relat ionships, but a lso between them, because even the risks attendant upon participation in the institution—such as the inability to e s c a p e abuse—cor responds to the level of systemic oppress ion one faces more general ly. Thus as J a c o b s has observed : 'the fight for alternative famil ies does not confront the structures of women 's economic oppress ion that have become increasingly significant with the development of public patriarchy, and thus it does not threaten gay men's economic privilege with respect to w o m e n . ' 7 3 Therefore, although for some , the risks assoc ia ted with inclusion within dependency promoting institutions may be 'merely' theoretical, for others they are quite severe and real. Not surprisingly, these risks correspond quite c losely with one 's race, gender, c lass etc. However , it is not only the risks, but a lso the benefits, of participation within these institutions that vary along the l ines of race, c lass and gender. The 'formal equality' approach to s a m e - s e x spousa l relationship recognit ion is ass imi lat ion is t 7 4 because it a ssumes , rather than interrogates, the ideological representation of 'spousal status' as inherently beneficial . To this point, I have focussed on simply establ ishing, or surveying some of the ways in which this assumpt ion 72 eschews quite real risks of harm assoc ia ted with inclusion within legal sys tems as spouses , particularly for those who face systemic oppress ion. Now, I change focus somewhat to d i scuss the ways in which inclusion itself can be quite partial. D E C O N S T R U C T I N G T H E ' O U R ' IN R E L A T I O N S H I P S Duclos has sa id : 'I do not bel ieve that it is coincidental that those whom marriage is most likely to benefit are those who are already fairly high up in the hierarchy of privilege that pervades society at la rge . ' 7 5 Nor do I. The soc io -economic 'benefits' l inked to these types of institutions are based upon a universal model of the family, therefore, the more one diverges from that norm, the less well the sys tem works as a distributor of benef i ts . 7 6 Thus , for example, Clai re Young has demonstrated that within the income tax system it is those couples with one wealthy spouse upon whom the other, economical ly dependant spouse is reliant, that benefit most from the sys tem of tax preferences l inked to spousa l s ta tus . 7 7 One of the most central aspects of the model immigrant family can be inferred from the following policy statement: 'the privilege of sponsor ing the immigration of a family member must be ba lanced with the responsibil i ty to provide for that person once in C a n a d a . ' 7 8 The favoured and normative model , then, is a family unit in which one party (namely the Canad ian ) can and does take f inancial 'responsibil i ty' for the other (the immigrant 'dependant ') . This model is quite common in benefits distribution schemes . Nitya Iyer has demonstrated, for example, that the availabil ity of maternity benefits is largely contingent upon whether one has a person, usual ly a spouse , with sufficient income to adequately supplement that 'benef i t . ' 7 9 However , despi te its f requency this model of spousa l benefits distribution is problematic because it exacerbates systemic 73 oppress ion, both symbol ical ly and materially; indeed, as will become apparent, the two are often interconnected. Fami ly c lass immigrants are defined as 'dependants ' and , as such , are considered both non-contributing and potentially threatening to the Canad ian welfare state. The overall contribution of immigration, and more particularly, family c lass immigration, to the Canad ian economy and society is a very complex quest ion, subject to much debate among analysts, and unlikely to result in a definitive response any time in the near future. 8 0 Indeed, the p lace and value of immigration changes over t ime a s do the societal and economic condit ions in C a n a d a . 8 1 However , more specif ical ly, there is good ev idence to suggest that despi te the difficulties assoc ia ted with moving to a new country, recent immigrants are less likely, on the one hand, to be in receipt of social ass is tance than native born Canad ians and , on the other hand, actual ly contribute to the Canad ian e c o n o m y . 8 2 How is this inconsistency between the representat ion of immigrants a s a threat to the Canad ian network of social serv ices, and the reality of immigrants expla ined? The roots of the inconsistency, can in part, be found in an examinat ion of the chang ing ' face' of Canad ian immigration over the years. A s Wil l iam Foster, et al, has observed : Both Austra l ia and C a n a d a have exper ienced unprecedented change in the national origins of their intakes in recent decades . C a n a d a abandoned its official preference for immigrants of European (or United States) origin by the mid-1960s.. .Pr ior to 1963, European immigrants constituted over 80 per cent of C a n a d a ' s annual intake, but in the last decade over 70 per cent have come from A s i a n , Afr ican, Car ibbean or Latin Amer ican count r ies . 8 3 Importantly, this move away from patently racist immigration pol ic ies may well have been less the result of a growing understanding of racial ( in just ice, as much as a calculated reaction to the reality that Europe simply could not supply C a n a d a with 74 enough immigrants to meet its labour n e e d s . 8 4 Bear ing this historical context in mind, Jakubowsk i has observed that the government: [...] is quick to character ise "the marriage" between C a n a d a and its immigrants a s success fu l , but the s u c c e s s s e e m s to be l inked, albeit implicitly, to the more traditional, white immigrant of the past. It is interesting that "today's immigrants" (the majority of whom are visible minorities) have come to be depicted as dependant , social ly maladjusted people who are prone to cr ime. This racial ly-charged assumpt ion of dependency is problematic because , in turn, it often becomes the basis upon which immigrants are turned into dependants . In the current context, the following f indings regarding the operation of Regulat ion 8 of the family benefits s c h e m e — t h e predecessor to still extant provisions used to reduce the amount of socia l ass is tance payable to immigrant ' dependan ts ' 8 6 —are far from surprising: 'caseworker Kath leen Lawrence has al leged that a disproport ionately high number of racial minority family benefits recipients have "Regulat ion 8 charges" deducted from their a l l owance . ' 8 7 A s the example above demonstrates, the symbol ic va lue or 'socia l purchase ' which comes with being ' recognised ' as same-sex famil ies—to refer back to one of the central justif ications for the formal equality approach to reform—may itself be priced quite differently white and/or middle-c lass than it is non-white and/or poor. No doubt many will be eligible for socia l recognition as the 'model same-sex family' within the immigration context, but others may find they are more commonly recognised as 'potential drains to the Canad ian welfare system, ' 'welfare abusers ' or quite simply 'more of those new immigrants who don't fit in to Canad ian society. ' Th is p rocess of symbol ic (de)valuation, which c o m e s with being recognised as a dependent spouse—pos i t i ve or negative depending upon how well one fits the ideological no rm—can become the bas is for quite 75 material oppress ion. The denial of benefits becomes part of a vic ious cyc le in which systemic oppress ion is once again exacerbated. In the context of the maternity benefits, Iyer has descr ibed the situation in this way: From a feminist perspect ive, the reality of exc lus ion obscured by a state benefit that is presented as universal is troubling for two reasons. First, the provision of the benefit exacerbates the economic oppress ion of poorer women. . . .The second way in which the benefit fails as a feminist reform is that it exacerbates the oppress ion exper ienced by Aboriginal women , women of colour, women with disabil i t ies, women who are single parents, and lesbians (with respect to the parental leave component of the benefit) as mothers.88 In the context of the immigration sys tem, members of the family c lass are depicted as a threat to C a n a d a . This depiction generates animosity informed by racism and xenophobia and the denial of benefits that in turn contributes to the formation of a racial ized and gender based underc lass that confirms the an imos i ty . 8 9 Therefore, it is mistaken to a s s u m e that all same-sex coup les will equal ly benefit from the re-definition of spouse in the Immigration Act. There is clearly no singular and universal common interest in this respect. This is not to say , however, that there are no shared interests among queer people vis-a-vis the recognition of same-sex relationships for immigration purposes. Clear ly , we all benefit from having our relat ionships recognized a s real types of famil ies in the immigration context. T h e difference between these two concepts can be demonstrated by a simplif ied hypothetical. Cons ide r a conservat ive wealthy gay man who wishes to sponsor his equal ly wealthy same-sex lover, with whom he has had a committed commuter relationship for severa l years. Now consider a single mother on social ass is tance who has had a four-year long committed relationship with a woman who is an illegal immigrant to C a n a d a and working for below minimum w a g e for several years. Clear ly, both couples share in interest in the recognition of the validity of their relat ionships; however, their interests may well diverge 76 in terms of which types of same-sex relationships they wish to be recognized, and under what terms. The problem with tying the 'privilege' of sponsor ing an immigrant spouse with the obligation to be financially responsible for that person is that some people may simply not be able to support another, no matter how intimate and important the re lat ionship. 9 0 A n d pursuant to sect ion 19(1 )(b) of the Immigration Act an aspirant immigrant will be ' inadmissible ' if the immigration officer has ' reasonable grounds to bel ieve [they] are or will be unable to support themselves . . . . ' 9 1 Therefore, even in regards to a spouse 'the v isa officer must be satisf ied that the appl icant can support h im- or herself in C a n a d a , or that other adequate arrangements for support have been m a d e . ' 9 2 Even the compass ion of the H & C cannot be extended so far as to embrace those spouses who are so poor as to be inadmiss ib le . 9 3 Chapter O P 2 (Oversees Process ing) of the Immigration Manua l , which is used as a guidel ine by immigration officers, expla ins the situation in this way: A19(1)(b) is not satisf ied where proper arrangements have not been made [for care and support of the immigrant]. This could apply where the situation in C a n a d a is such that it would require the immigrant to seek publ ic/governmental ass is tance upon landing. However , because of the acknowledged humanitarian aspects of family reunif ication, officers are encouraged not to refuse sponsored spouses and/or dependent children un less arrangements for care and support are virtually non-existent and offer no prospect of improvement. Refusa ls should be extremely rare if the sponsor is employed, however marginal ly . 9 4 Although in the past, as the guidel ines above imply, sect ion 19(1 )(b) w a s rarely enforced against ' spouses , ' immigration officers may not be so will ing to overlook economic unsuitability when consider ing the v isa appl icat ions of same-sex couples. I would argue that this is indeed a reasonable possibil ity for a couple of reasons. For example , the homophobia and heterosexism of individual officers may incline them towards rejecting the appl icat ions of same-sex couples whenever possib le, especial ly if 77 they do not fit the ideal model . A l so , as I have argued above, Immigration C a n a d a is increasingly emphas is ing in its public statements the need to c lose the system to immigrants, even those who are part of the family c lass , who will be likely to (ab)use C a n a d a ' s sys tem of socia l s e r v i c e s . 9 5 But once again, the risks assoc ia ted with rejection will not be evenly distributed, but rather will likely fall a long historically well establ ished axes of oppress ion. Lesb ians are less likely to fit within the ideal, self-support ing model of an immigrant spousa l unit given the feminisation of poverty. For example , in the U S , Lee Badgett 's research revealed that 'married couple households and male same-sex households have roughly equal household incomes, while female s a m e - s e x coup les bring home 18-2 0 % less income that a similar married couple 's i n c o m e . ' 9 6 But, of course, the l ines of poverty are not only related to gender. A s Herbert observed: 'West Indian women [of colour] earned $3,000 less on average than other non-visible immigrant w o m e n . ' 9 7 More general ly, Sa tzewich has demonstrated that: [ . . . immigrant famil ies from traditional sources of the United States, Britain and Western Europe are less likely to have low income status than immigrant famil ies from "non- traditional" source countr ies. The former [viz. 'white' people] therefore have more resources at their d isposal to qualify for sponsorsh ip than the latter. 9 8 But even if the rules of inadmissibil i ty are not appl ied more routinely against same-sex coup les , many gay, lesbian, bisexual and t ransgender people will be unable to a c c e s s the benefits of the proposed redefinition of the term 'spouse. ' Th is is so because the presumptive prioritisation of the 'spousa l ' category within the immigration system operates to exc lude those that do not appear enough like the ideological family. Thus , as I shall argue, the 'spousa l ' category may also operate to exc lude those who do not conform to a heterosexist and ethnocentr ic model of family. 78 The proposed changes to the definition of ' spouse ' should not, in my opinion, be understood simply as an 'extension. ' After all, the proposed redefinition is part of an inverse process of ' l iberalisation' and ' restr ict ion' 9 9 of the family c lass within the context of an immigration system in which both the p l a n n e d 1 0 0 and a lso the actual number of family members gaining entry into C a n a d a has dec reased every year of the past t h ree . 1 0 1 A s such , it is likely that inclusion within a restricted family c lass will be part of a broader trend in which only those same-sex couples that 'mirror as c losely as possib le traditional heterosexual relat ionships' are r e c o g n i s e d . 1 0 2 In an analys is of the Austral ian example of same-sex spousa l immigration it was noted that '[m]ere compan ions , good fr iends, or lovers who were neither cohabit ing nor exc lus ive were not al lowed under the a r rangement . ' 1 0 3 In C a n a d a , although the definition of ' same-sex spouse ' remains unspeci f ied, the regular references to 'c lose family members ' and 'core family' make it unlikely that ' spouse ' will include anyone other than a s a m e - s e x 'conjugal ' partner—a term which is general ly understood to mean 'marriage like'—with whom one intends to permanently r e s i d e . 1 0 4 The observat ion of B e c h regarding the registered partnership laws of Denmark will l ikely be appl icable therefore: 'The law discr iminated against traditions of life-style among homosexua ls , such as non-permanent relat ionships and the pr imacy of fr iendship ne tworks . ' 1 0 5 I would a lso argue that the likelihood that only 'marr iage like' same-sex relationships will be recognised (to the exclusion of all others) is signif icantly increased by the insistence of gay and lesbian equality groups for inclusion within the s a m e category as married and opposi te-sex spousa l relat ionships; I have referred to this as the demand for categorical equa l i t y . 1 0 6 A s Brodsky has wryly observed, in equality litigation 'ev idence is . . .advanced to show that lesbian and gay relat ionships are just like 79 common- law heterosexual relat ionships, only s t ra ighter . ' 1 0 7 But this is an issue that I will d i scuss in more detail in the conclus ion to this chapter. This presumptive prioritisation of ' spousa l ' family units, however, is not only heterosexist, but a lso ethnocentric. It should be cons idered, for example , that in many cultures members of the 'extended' family, such as parents and grandparents, are often equal ly important a s s p o u s e s . 1 0 8 Not surprisingly, the number of parents and grandparents that the government has planned to admit to C a n a d a has been declining at an even sharper rate than that of the family c lass gene ra l l y . 1 0 9 In the face of this obscene ly ethnocentr ic trend can there be little wonder that the 'expansion of the family c l a s s ' 1 1 0 to include same-sex spouses is being packaged as part of a process in which '[t]he scope of the family c lass would be enhanced , not d im in i shed . ' 1 1 1 The redefinition of ' spouse ' to include same-sex partners should not, however, only be understood a s diverting attention away from the growing ethnocentr ism of the immigration sys tem, but a lso as itself part of, and therefore limited by that trend. G iven the myopic focus of many gay and lesbian equality activists on the recognition of same-sex 'spousa l ' relat ionships, it bears comment that those queer people who are single or would prefer to sponsor a parent or c lose friend more than a 'conjugal ' partner stand to lose just as much as , if not more than straight people from the growing trend within Canad ian immigration policy to prioritise 'spousa l ' status, to the exc lus ion of other forms of intimate relat ionships. A s Cla i re Young has observed: Currently state subs id ised benefits are provided to some persons (spouses) solely because they are in a relationship with another person. S ing le persons are discriminated against. Extending the definition of spouse to include the partners of lesbians and gay men would , to some extent, reinforce this inequity. Single lesbians and gay men will cont inue to receive no part of this subsidy, regardless of the responsibi l i t ies they may have to other individuals, while lesbian and gay coup les stand to benef i t . 1 1 2 80 In summary I will rely in part upon the words of G w e n Brodsky, who captured quite succinct ly what I have attempted to demonstrate in this paper using the example of the redefinition of the category 'spouse ' in the family c lass : [...] in family benefits litigation, the formal equality paradigm marginal izes lesbians and gay men who are not "like" the stereotype of heterosexual coup les or who do not meet standard criteria for heterosexual common law relat ionships; ignores the equal ly legitimate c la ims to benefits of those not in coup les , whether heterosexual or lesbian or gay; precludes a more radical chal lenge by lesbians and other feminists to the patriarchal family; endorses social ly approved sexual relationships as a legitimate basis of entitlement to benefits; and falsely a s s u m e s that only benefits and no detr iments flow from state recognit ion of spousa l re la t ionsh ips . 1 1 3 A s currently articulated in New Directions, the redefinition of ' spouse ' within the family c lass to include same-sex partners will facilitate the recognit ion of the relationships of s o m e queer people, while other relat ionships—both queer and not—are further marginal ized. Depending upon how 'spouse ' is ultimately def ined, and how strictly the model of the ideal, self-supporting immigrant family is appl ied to appl icants in same-sex relat ionships, the proposed reform will provide few, or no benefits at al l , for those who do not fit within a heterosexist, ethnocentric and c lassist ideological family norm. Moreover , given the trend to privatise socia l responsibi l i ty (and consequent ly oppress ive relations) within famil ies, it is a model that can severe ly penal ise those who try and fail to meet the standards of that norm. Inclusion within the category of ' spouse ' in the family c lass of the Immigration Act does indeed hold the potential to recognise some gay and lesbian famil ies, but it will a lso promote a new c lass of 'bad homosexua ls ' who will not only be marked 'as ' non-spousal for the purposes of the family c lass , but a lso 'by' their poverty, b lackness and femaleness . In her recent book, Are We "Persons" Yet: Law and Sexuality in Canada, Kathleen Lahey lays out one of the most comprehens ive and thought provoking ana lyses of the 81 potential soc io-economic implications of inclusion of s a m e - s e x coup les as 'spousa l ' units. A n d although she ultimately supports the pursuit of formal equality, she is a lso c lear it is not only the benefits of inclusion that will be unevenly distr ibuted, but a lso the costs of exc lus ion: The distribution of the benefits of inclusion a long c lass , race, sexua l orientation, ability, and gender l ines would certainly reinforce the appropriation and dependency paradigms assoc ia ted with heterosexual relat ionships. But the al location of the costs of exc lus ion also disproportionately burden those who are already d isadvantaged by c lass , race, sexuali ty, gender, and ability as w e l l . 1 1 4 Therefore, I would suggest that the argument that the formal equality approach to reform 'simply seeks the right of same-sex couples to choose to be recognised as spouses ' is at best spec ious in the partiality of its perspect ive, and at worst, ugly in the se l f ishness of its object ives. C O N C L U S I O N : R E P L A C I N G T H E D E M A N D S O F F O R M A L E Q U A L I T Y F O R T H E P O T E N T I A L OF P R O G R E S S I V E S T R A T E G I E S To this point I have focussed primarily on two themes: first, the policy implications of changes to the Immigration Act grounded in a formal equality approach to reform; and secondly , how these implications vary depending upon one 's socia l location(s) or community of interest. In the conclusion of this chapter I want to change the focus somewhat by turning the gaze back onto the formal equality approach itself. Mir iam Smith argues that the current trend within lesbian and gay rights groups to focus on formal legal equality (a focus that reflects the broader assumpt ion that gaining legal rights is tantamount to socia l c h a n g e 1 1 5 ) is in part the result of the entrenchment of the Charter of Rights and Freedoms, but is a lso l inked to the nature of the composit ion of the groups themselves: 82 E G A L E [for example] was rooted in the emerging middle-c lass communit ies of out lesb ians and gays who potentially stood to benefit economical ly from the recognit ion of lesbian and gay relat ionships in law. Its leadership, especia l ly in its early period, was provided mainly, although not exclusively, by white male p ro fess iona ls . 1 1 6 It is important to recognise that the ideological va lue presumptively ascr ibed to the formal equality approach by many gay and lesbian rights groups is, in part, related to the more general assumpt ion that legal rights equal socia l change (the hegemony of l iberal ism, as it were). However, it is equal ly important to recognise that this assumpt ion is valid, at least for some communit ies of interests. The formal equality approach to reform should not be understood as correct or incorrect, or somewhere in between: it is a political cho ice to prioritise and pursue certain object ives, or interests, rather than others. To suggest otherwise would be to fall into the same , in my opinion, mistaken mindset reflected in this analys is : Trying to redefine benefits s o that they are not based on relat ionships at all would be very difficult because "it would divert the debate away from lesbian and gay equality issues to policy i ssues which we' re not really mandated or competent to p r o p o s e . " 1 1 7 (emphasis added) This analys is eschews the fact that not pursuing the redefinition of the way in which soc io -economic benefits are distributed is itself a cho ice, and that what constitutes equality for gays and lesb ians var ies depending upon one 's race, gender , c lass etc. Therefore, what I referred to in the introduction to this Chapter as 'essent ia l ism' is better understood as the presumptive privileging of one perspect ive, or community of interest, namely that of those who only face discrimination based on their sexual orientation. Moreover , the 'assimilationist ' nature of this approach is a lso not incorrect, but rather should be understood as the natural inclination of those who will, for the most part, benefit from mere inclusion into c lassist , racist and gender ing institutions. To use a metaphor I learnt at a workshop on rac ism, for those who do not exper ience complex 83 oppress ion it is natural to comprehend oppress ion as a line which one must simply get over; whereas , for those who exper ience complex oppress ion , it s e e m s more natural to try to e rase the line completely. But even when the formal equality approach is acknowledged as a political choice and means to an end, as opposed to some naturally occurr ing and self-justifying goal , it is put forward as the only politically feasible approach to reform. More progressive broad-based socia l change agendas are d ismissed as 'all or nothing' approaches. Essent ia l ly, the argument goes that once 'we' are on the inside, we can then pursue progressive reforms through incremental change, rather than striving for perfect solut ions all at once . I will, therefore, return to the case study of the reform of the Immigration Act, to briefly explore these arguments. It is possib le, in my opinion, to formulate policies that advance our shared interest in see ing the intimate or even 'conjugal ' relationships of gays and lesbians recognised, while minimising the exc lus ions and exacerbat ion of the oppress ions of ' o thers . ' 1 1 8 In the context of immigration, one solution might be to advocate that membersh ip within the family c lass be based upon a more 'functional' definition of family rather than a mere redefinition of a static categorical definition of legal and biological re la t ionsh ips . 1 1 9 For example , in a report produced as part of a national consultat ion about family c lass immigration, J a m e s C . Hathaway recommended that: [...] recognit ion that there is no single, "natural", or preferred paradigm of "family" should be the basis for a more considered and rational approach to socia l planning. Rather than continuing to define "family" through descript ion of observed patterns of relationship, which vary markedly from one culture to another and over time, emphas is should more reasonably shift to the definition of "family" on functional t e r m s . 1 2 0 84 S u c h a solution would not eliminate all of the problems I have d i scussed in this chapter. However, at least with an explicitly functionally-defined test there is t ransparency regarding the type of family model that is being recognised and promoted. This t ransparency in turn opens up avenues for political debate about what kind of immigrant family should be encouraged rather than assuming , incorrectly, that 'the' family has static qualit ies derived somehow from na tu re . 1 2 1 For example , it was stated in the report quoted directly above that: It w a s agreed that the definition of intimate partners for the purposes of family c lass immigration should avoid rel iance on symbol ic or traditional representat ions of intimate partnerships, and , instead, reflect the real, functional relationships found in contemporary Canad ian s o c i e t y . 1 2 2 Unlike a categorical approach based upon 'spousa l ' status, a functional approach, based upon flexible criteria, at least has greater capacity to resist the automatic prioritisation of a traditional, heterosexist and ethnocentr ic model of family to the exclusion of other equal ly important relat ionships, both s a m e - and opposi te-sex. Let us a s s u m e , however, as many formal equality proponents would , that although it might be ideal , it would not be politically feasible to advocate that all of the categories within the family c lass , including that of 'spouse, ' be swept away and replaced with one unif ied, functional definition of family. I would still a rgue that it would be politically feasible to lobby for the creation of a separate category for gays and lesbians, one which is based upon a more functional understanding of the famil ies of gays and lesbians and their va lue, rather than equiva lence to 'spousa l status.' A s argued above, the use of categor ies is not inherently object ionable; even if they were, categor ies are necessary for us to comprehend the complexit ies contained in both law and life. In this context, therefore, the chal lenge is to envision a category that will advance the broadest cross-sect ion of communit ies of interests within the queer community. 85 Using as the starting point an emphas is on 'substantive' rather than 'formal' equality (a focus on communit ies of interest rather than pre-def ined groups of people) it s e e m s to me that we could formulate some arguments to support a claim that 'our' relat ionships, and therefore our needs, tend to be different than those of heterosexuals. For example , it could be argued that because of the stigmatisation of our sexuali t ies and our sexual relat ionships, non-conjugal fr iends are more likely, as compared with heterosexuals, to be the most important and intimate 'family' members in our l ives. Most importantly, this argument need not be framed in such a way as to suggest that gays and lesbians are incapable of forming intimate conjugal relat ionships of permanence. Rather, what would be argued is that in addition to the recognit ion of our 'spousa l ' relat ionships, the principle of substant ive equality requires that we have a c c e s s to a broader definition of 'our' famil ies. E v e n if there w a s little ev idence to support that kind of c la im or s imply insufficient political will to justify demands for a broader and more functional definition of 'gay famil ies, ' it still s e e m s to me strategically preferable to demand a separate category for same-sex ' spouses . ' The benefit of such a ca tegory—as opposed to a single category in which marr ied, opposi te- and same-sex couples are all inc luded—is, quite simply, that it would be 'ours. ' Act ivists would have a solid footing, at a politically opportune time in the future, to begin exploring whether we have unique and shared needs , interests, or political aspirat ions, as gays and lesbians. Unfettered by the need to compare or dist inguish the relat ionships of gays and lesbians from those of heterosexuals, activists would have plenty of room to advocate for reforms to the definit ion, or even application of 'our' category to suit a broader cross-sect ion of our communi t ies of in te res ts . 1 2 3 86 For example , based upon the assert ion that many gays and lesbians prefer, and/or fit within a model of family based on inter-dependency, as opposed to the dependency of one partner upon the o the r 1 2 4 , activists could advocate for reforms to reduce the hierarchical distribution of wealth and power within legally recognised gay and lesbian relat ionships. Furthermore, the increasingly common privatisation of social and economic responsibil i ty for the well being of individuals within family units could be chal lenged on the grounds that it replicates a heterosexist, c lassist and patriarchal economy which is both inappl icable and unacceptable to gays and lesbians. W e could, as gays and lesbians, turn our attention more directly to exploit ing our 'disruptive potential' v is-a-vis the 'dominant relations of production and ru l ing . ' 1 2 5 In this way, gay and lesbian relat ionships, or more accurately, their legal definit ions, could become the fulcrum upon which demands for even broader, progressive soc ia l change are based . Heterosexuals might actually begin to emulate our relat ionships and envy their legal status, rather than the reverse. But of course , for the proponents of the formal equality approach to reform, proposals such as these would be entirely unacceptable because they violate all three tenets of that approach. Rather than emphas is ing our being the ' same ' as heterosexuals, they suggest that some of us may be different in significant ways . Rather than presumptively demanding similar treatment, the proposals above rely upon an assert ion that different models may be required if 'our' relationships are to be afforded substant ive equal value. Lastly, and perhaps most importantly, the approaches outl ined above do not necessarily prioritise s a m e - s e x 'spousa l ' relat ionships, and their formal recognit ion. Nor, however, is pursuit of the recognition of same-sex 'spousa l ' relat ionships automatical ly rejected. Rather, it is the actual relat ionships of gays and lesb ians—not an ideological ly sanit ised 87 (i.e. heteronormative) model—that are prioritised. O n e need only review the vehement ly negative reactions of several gay and lesbian rights groups to the creation of a separate definition of ' same-sex partner' in Ontario to confirm the centrality of ' spousa l ' recognition and categorical equality to the agenda of these g r o u p s . 1 2 6 A s one E G A L E press re lease put it: 'All we ask is to be treated equal ly—in subs tance and in f o r m . ' 1 2 7 The problem with such a position is of course that the two goals are not synonymous , indeed they may not even parallel each other. Deconstructed in this way, it is the formal equality approach to reform that is more accurately descr ibed by the statement 'all or nothing.' There is nothing about a progressive or mult i -dimensional approach to equali ty that inherently insists that reform be either immediate or perfect. On the contrary, I would argue that it is the formal equality approach—with its implacable desire for the inclusion of s a m e - s e x relationships within those categor ies currently inhabited by married and/or opposi te-sex 'spousa l ' re lat ionships—which potentially thwarts the potential for strategic and incremental progressive legal and socia l reform. Kath leen Lahey has argued that '[t]he best progressives can hope for, in my opinion, is that once queer communit ies are fully empowered to participate in every political debate on equal terms, more of the implications of hierarchy will become visible and less tolerable to the body pol i t ic . ' 1 2 8 1 must d isagree. I see little in the formal equality approach to reform—the zea lous pursuit of 'spousa l ' recognit ion, no matter what—to support this opt imism. The problem with Lahey 's supposit ion is that using the formal equality approach to reform, 'queer communit ies ' will never be able to 'fully participate in every political debate on equal terms' (emphasis added). Quite the contrary is likely, I would argue. For the most part, it will only be those gays and lesbians who only 88 exper ience sexual orientation oppress ion who will exper ience, unequivocal ly, the privi leges of full c i t izenship. And sadly, there is little to encourage a reasonable belief that these few will be happy to then dismant le the house to which they have just been admitted. I return then to the quest ion that I articulated at the beginning of this chapter, namely, should gay and lesbian equal i ty-seeking groups pursue inclusion within the family c lass as ' spouses . ' Having come down the road of researching and writing this chapter, I must beg to reformulate the quest ion because , as it is, it is not answerab le by reference to some impartial, logical or natural formula of law or equality. Rather, it is a political quest ion, the answer to which depends on one 's political object ives and socia l perspect ive. I think that the far more interesting quest ion is this: 'how should we determine who gets to participate in the p rocess of decid ing what "our" quest ions are, what it is we seek to pursue, and why? ' This is a question that I touched upon in the Introduction to this thesis, and will address in greater detail in its Conc lus ion . However , I would reject the formal equality approach to reform as I have descr ibed it in this chapter. It presumptively and unfairly privi leges and natural ises certain perspect ives or communi t ies of interest within the queer community, more than others. The formal equality approach to reform is so problematic because it is a fa lse and premature end to analys is ; it f lattens our dif ferences: our different aspirat ions, our different socia l locations, the different benefits, harms and dangers which will come with inclusion within the category of 'spouse. ' T h e s e political ques t ions—such as how, or whether 'our' relat ionships should be incorporated into different legal institutions—should be contested on a political terrain 8 9 which at the very least strives to recognise as many perspect ives as possib le, not presumptively elevated to the rarefied atmosphere of liberal legal theory. These quest ions, it s e e m s to me, should not be left in the hands of lawyers, but debated among as wide a cross-sect ion of queer communit ies as possib le. Absen t these kinds of d iscuss ions , it s e e m s to me that the gay and lesbian equal i ty-seeking groups will remain inhospitable terrain for those who exper ience complex oppress ion . Personal ly , as gay male person of colour, I have made the (very political) choice to resist the incorporation of same-sex relationships as ' spousa l ' within the family c lass of the Immigration Act. But aga in , this cho ice is grounded in my perspect ives. I s imply cannot, as the child of immigrant parents, think exclusively about 'sexual orientation' when consider ing the reform of the Immigration Act. A s someone who has worked with poor immigrant women , trapped in abus ive relat ionships, I cannot, even tacitly endorse immigration laws that bind women to 'dependent ' relat ionships. Cons ide r these words of Cory and lacobucci J J . in the M. v. H. dec is ion: [...] di f ferences of opinion within the s a m e constitutionally relevant group do not constitute a reason to defer to the cho ices of the legislature. Indeed, as noted by E G A L E , given that the members of equal i ty-seeking groups are bound to differ to s o m e extent in their polit ics, beliefs and opinions, it is unlikely that any s. 15 c la ims would survive s. 1 scrutiny if unanimity with respect to the desired remedy were required before discrimination could be r e d r e s s e d . 1 2 9 A s someone who largely works within the field of law, I a m driven to continually make the connect ions between complex oppress ions and law to make sure that both the courts and a lso advocates for legal reform never forget, at the very least, that there indeed is not 'unanimity.' I must, at least strive to e rase the line(s), not just hop over them, leaving behind (ir)relevant aspects of myself. 90 A D D E N D U M : . In Apri l 2000, after substantial complet ion of this chapter, the Government of C a n a d a introduced Bill C - 3 1 , An Act respecting immigration to Canada and the granting of refugee protection to persons who are displaced, persecuted or in danger, 2nd S e s s . , 36th Par i . , C a n a d a , 1999-2000. If enacted into law this Bill would introduce a wide range of changes to the immigration and refugee law of C a n a d a . B e c a u s e of the complexity of these changes , even a cursory analys is of them is beyond the scope of this addendum. However, I do wish to briefly flag a couple of aspects of policy statements about the Bill issued by the Government of C a n a d a . In an internet document titled "Quest ions and Answers for Bill C - 3 1 , The Immigration and Refugee Protect ion A c t " 1 3 0 the core conflict of the Canad ian immigration sys tem—namely , family reunification 'versus' the apparent strain on the Canad ian social welfare s ta te—was highlighted. It was noted that '[t]he proposed changes are intended to recognize the evolution of the Canad ian family and strengthen one of the cornerstones of Canad ian immigration policy: family reunif ication' by 'broadening the definition of "dependent child", ' 'enhancing adoption provisions, ' 'el iminating the bar for health reasons in the case of sponsored spouses and dependent chi ldren' and 'establ ishing an " in -Canada" landing c lass for spouses and chi ldren who are already in the country so that they do not have to leave the country to apply. ' However , the document a lso s t ressed that C a n a d a would be adopting tougher measures to "to speed up the resolution of the [refugee] c la ims, deport bogus refugees more quickly, and enforce stiff penalt ies on those who bring these people to our shores illegally." It a lso emphas ized that importance of the "Socia l Union Framework Agreement" and recognized 'the impact immigration can have on social serv ices. ' 91 Within that rhetorical context, the extension of ' spousa l ' status to same-sex coup les w a s prominent. The s imul taneous expansion/contract ion of the ideologically acceptable form of 'family' for immigration purposes is apparent in the following sect ion, quoted in full: Quest ion 4: W h y does the Ac t expand the definition of spouse to include both common- law and same-sex coup les? A n s w e r 4: In keeping with the Omnibus Bill on Modern iz ing Benefi ts and Obl igat ions (C-23), the immigration legislation is consistent with equal treatment under the law. This equal treatment ensures that both common-law and same-sex couples are treated fairly in all Canad ian legislation. Quest ion 5: What does the new Act do to tighten up sponsorsh ip rules so that newly sponsored immigrants do not become a burden on taxpayers? A n s w e r 5: The new legislation will introduce col lect ion criteria so that the Government of C a n a d a can collect from deadbeat sponsors, if they do not live up to their obligations and do not repay the provinces for any debt ar ising from a default of a sponsorsh ip resulting in welfare costs . A s wel l , the government will be able to deny the right to sponsor to anyone who is in default of court-ordered spousa l or child support, as well as to persons convicted of a cr ime related to domest ic abuse . P e r s o n s on socia l ass is tance (excluding disability pensions) will not be al lowed to sponsor un less the Minister gives consent (italics added). Interestingly, two days after its initial posting to the C a n a d a Immigration web-si te, the document had been changed , completely omitting the reference to 'deadbeat sponsors. ' The nature of the 'collection criteria' as well as many other important aspects of the new immigration and refugee system remain unspecif ied and will no doubt be the subject of much debate, both within Parl iament and more general ly. Never the less, what is c lear is that the Government of C a n a d a will promote immigrant famil ies that are — regardless of the sex of the spouses — self-sufficient, no matter what. 1 2nd S e s s i o n , 36th Parl iament, C a n a d a , 2000. 2 R.S.C. 1985, c. I-2 (hereinafter cited as 'Immigration Acf). Please note that as discussed in an addendum to this chapter, the federal government has now introduced a Bill, not yet passed, to 92 specifically amend the Immigration Act to redefine the category of 'spouse' to include same and opposite-sex common-law partners, in addition to married couples. 3 Citizenship and Immigration Canada (Minister of Public Works and Government Services Canada, 1998). Available at: http://cicnet.ci.gc.ca (hereinafter cited as 'New Directions'). 4 Ibid, at i. 5 New Directions, supra note 3 at 25. 6 For the general provision for spousal and a description of the 'family class' selection criteria see Immigration Act, supra note 2 at s. 6 and also Immigration Regulations, 1978, SOR/78-172 (hereinafter cited as 'Immigration Regulations') at s. 2(1) and 4. In these sections, 'spouse' is currently restricted to opposite-sex married couples. 7 Lome Waldman, Immigration Law and Practice (Vancouver: Toronto: Butterworths, 1992) (hereinafter cited as 'Immigration Law and Practice') at 13.7. 8 Immigration Act, supra note 2 at s. 114(2). The revised H&C guidelines recognise for the first time that '[t]he separation of common-law or same-sex partners who reside together in a genuine conjugal-like relation-ship is grounds for H&C consideration': Immigrant Applications in Canada Made on Humanitarian or Compassionate (H&C) Grounds, IP-5, February 23, 1999 (hereinafter cited as 'H&C Guidelines') at 8.2. 9 See: Donald G . Casswell, Lesbians, Gay Men, and Canadian Law (Toronto: Emond Montgomery Publications, 1996) at 572; and, Lesbian and Gay Immigration Task Force (LEGIT), brief to Honourable Lucienne Robillard, Minister'of Immigration, Government of Canada, November 1, 1996 at 5 (on file with author). 1 0 As E G A L E has commented, 'Whatever criteria are used to identify a qualifying [same-sex] relationship, there will always be couples, family members or other individuals, who do not fall within the established criteria': Equality for Gays and Lesbians Everywhere (EGALE) , "Recommendation to the Department of Immigration on reforming and enhancing Canada's immigration laws and policies." Available at http://www.egale.ca (hereinafter cited as " E G A L E Recommendation") at 5. 1 1 Citizenship and Immigration Canada, "Strengthening Family Reunification" News Release 99-02, January 6, 1999. There are, of course, other ways in which the relationships of queer people could be 'recognised'. For example, rather than being recognised only insofar as they are 'spousal,' same-sex relationships could be afforded immigration status on the basis that they are of relative importance to the Canadian sponsor, whether 'spousal' or not. See my 'Conclusion.' 1 2 Lesbian and Gay Immigration Task Force (LEGIT), "Same -Sex Couples Are A Reality," brief to the Minister of Immigration, Government of Canada, February 11,1998 at 2 (on file with author). 1 3 " E G A L E Recommendation," supra note 10 at 4. 1 4 Tom Yeung, "Immigration breakthrough: Federal Liberals propose recognition of gay spouses for immigration" Xtra West, January 21, 1999. 1 51 will often in this paper refer only to 'gay[s] and lesbian[s]' not because of a desire or oversight to consider bisexual, transgendered and other 'sexual minorities,' but as a reflection of the sad reality that within political organising and movements the focus is often squarely on only gays, and to a lesser extent lesbians. 1 6 Barry D. Adam, The Rise of A Gay and Lesbian Movement, revised edition, (New York: Twayne Publishers, 1995) at Chapter 5, "Gay Liberation and Lesbian Feminism." 1 7 Mary Eaton, "Lesbians, Gays and the Struggle for Equality Rights: Reversing the Progressive Hypothesis" (1994) 17 Dalhousie Law Journal 130 (hereinafter cited as "Reversing the Progressive Hypothesis") at 174. 1 8 For an extensive and informative discussion of this and other aspects of movements for gay and lesbian equality in Canada see, for example: Miriam Smith, Lesbian and Gay Rights in Canada: Social Movements and Equality-Seeking, 1971-1995 (Toronto: University of Toronto Press, 1999) (hereinafter cited as 'Lesbian and Gay Rights in Canada'). 1 9 Nitya Duclos, "Some Complicating Thoughts on Same-Sex Marriage" (1991) 1 Journal of Law and Sexuality 31 (hereinafter cited as "Some Complicating Thoughts") at 34. 2 0 By which I mean those people who derogate in some way from heterosexual normativity. 21 Lesbian and Gay Rights in Canada, supra note 18 at 98. 22 Lesbian and Gay Rights in Canada, supra note 18 at 85. 2 3 See for example Shelley A .M. Gavigan, "Legal Forms, Family Forms, Gendered Norms: What is a Spouse?" (1999) 14-1 Canadian Journal of Law and Society 1 2 7 - 1 5 7 (hereinafter cited as "What is a 93 Spouse?") who lays out in some detail the ways in which the 'spouse in the house' rule has been 'mean in its application' (at 143) to 'welfare mothers' (at 143 -151) and notes the ways in which the form of 'spouse' in property law is quite different from that in welfare/poverty laws. More importantly, the latter form, she argues, 'is a form that shapes and is shaped by class and gender relations' at 151. 2 4 Susan B. Boyd, "Family , Law and Sexuality: Feminist Engagements" (1999) 8-3 Journal of Social and Legal Studies 369 - 390 (hereinafter cited as "Family, Law and Sexuality") at 378. 2 5 See Shelley Gavigan, "Law, Gender, and Ideology" in A. Bayefsky (ed.) Legal Theory Meets Legal Practice (Edmonton: Academic Printing and Publishing, 1988), 283 - 295 (hereinafter cited as "Law, Gender, and Ideology") at 291: '...the importance of analyzing law as ideology is best illustrated by a consideration of "the family," writ large as it often is. "The family" is presented both in law and in popular culture as the basic unit of society, a sacred, timeless and so natural an institution that its definition is self-evident.' 2 6 James C. Hathaway, "Towards a Contextualized System of Family Class Immigration" in Report of the National Consultation on Family Class Immigration, Refugee Law Research Unit, Centre for Refugee Studies, York University, June 1994 (hereinafter cited as "Towards a Contextualized System") at 2 - 3. 2 7 New Directions, supra note 3 at 10. 2 8 The actual number of family class landings has also been on the decline. See the "Annual Immigration Plan[s]" for recent years are available at http://cicnet.ci.qc.ca (hereinafter cited as "Annual Immigration Plan[sj"). Also see: Vic Satzewich (ed.), Deconstructing a Nation: Immigration, Multiculturalism and Racism in '90s Canada (Halifax: Fernwood Publishing, 1992) (hereinafter cited as 'Deconstructing a Nation') 2 9 William Foster, Fred Gruen and Neil Swan, "Economic Effects of the Host Community" in Adelman, Howard et al., eds., Immigration and Refugee Policy: Australia and Canada Compared, Volume II (Toronto: University of Toronto Press, 1994) at 452 (hereinafter cited as "Economic Effects of the Host Community"). 3 0 New Directions, supra note 3 at 6. 3 1 "Reversing the Progressive Hypothesis," supra note 17 at 131. 3 2 Vic Satzewich, "Migrant and Immigrant Families in Canada: State Coercion and Legal Control in the Formation of Ethnic Families" (1993) 24-3 Journal of Comparative Family Studies 315 - 338 (hereinafter cited as "Migrant and Immigrant Families") at 334 - 335. 3 3 Shelley Gavigan, "Paradise Lost, Paradox Revisited: The Implications of Familial Ideology for Feminist, Lesbian and Gay Engagement to Law" (1993) 31 Osgoode Hall L.J. 589 - 624 (hereinafter cited as "Paradise Lost") at 614. 3 4 See: Marlee Kline, "Race, Racism and Feminist Legal Theory" (1989) 12 Harvard Women's Law Journal 115 & "Complicating the Ideology of Motherhood: Child Welfare Law and First Nation Women" (1993) 31 Queens L.J. 306-342. 3 5 "Paradise Lost," supra note 33 at 623: 'I have attempted to illustrate that the analytical and political challenge posed by diverse experiences in family life strengthens, rather than undermines, the critique of "the family.'" 3 6 Bech Henning, "Report From a Rotten State: 'Marriage' and 'homosexuality' in 'Denmark'" in Modern Homosexualities: Fragments of lesbian and gay experience ed. Ken Plummer (London: Routledge, 1992) 134- 147 (hereinafter "Report from a Rotten State") at 136. 3 7 Susan B. Boyd, "Child Custody, Ideologies and Employment" (1989) 3 Canadian Journal of Women and Law 111-133 (hereinafter cited as "Child Custody, Ideologies and Employment") at 114. 3 8 See Didi Herman, "Are We Family?: Lesbian Rights and Women's Liberation" (1990) Vol. 28, No. 4 Osgoode Hall Law Journal 789 - 815 at 796: 'These theorists contend that hegemonic familial ideology is a primary contributor to the oppression and exploitation of women.' 3 9 "Report from a Rotten State," supra note 36, at 136. 4 0 For a more full discussion of these issues, see "Family, Law and Sexuality," supra note 24 and Susan B. Boyd, ed. Challenging the Public /Private Divide: Feminism, Law and Public Policy (Toronto, University of Toronto Press, 1997). 4 1 Margot Young, "The Social Union Framework Agreement: Hollowing out the State" (1999) 10:4 Constitutional Forum at 120. 4 2 [1999] 2 S .C.R. 3. This case and several others will be discussed in much greater detail in the chapter following this one. 94 4J Ibid, at paragraph 93. 44 Ibid, at paragraph 130. 45 New Directions, supra note 3 at 23. 46 Immigration Regulations, supra note 6. See definitions of 'dependant,' 'undertaking' & 'sponsor' at s. 2(1); and, the requirement of an undertaking at s. 5(2)(h). 47 Immigration Regulations, supra note 6, at s. 2(1) and Schedule VI which lists unavailable sources of support. 8 Ontario Regulation, 134/98 s. 51 (as amended). Equivalent provisions also occur in section 40 of the regulations to the Ontario Disability Support Program Act (formerly the Family Benefits Act). These provisions are currently the subject of a Charter challenge brought in the Superior Court of Justice pursuant to Rule 14.05 of the Ontario Rules of Civil Procedure (Jeeveratnam et al. v. Ontario). 4 9 "Paradise Lost," supra note 33, at 609. 5 0 Evan Wolfson, "Crossing the threshold: equal marriage rights for lesbians and gay men and the intra-community critique" 21 New York University Review of Law and Social Change at 598. 5 1 John Hart, "A Cocktail of Alarm: Same-sex couples and migration to Australia 1985 - 90" in Modern Homosexualities: Fragments of lesbian and gay experience ed. Ken Plummer (London: Routledge, 1992) 121 -122 (hereinafter cited as "A Cocktail of Alarm") at 130. For the comparative situation of the 'older American man' who sponsors a 'beautiful, faithful, Asian wife' see: Michelle J . Anderson, "A License to Abuse: The Impact of Conditional Status on Female Immigrants" (1993) Vol . 102 Yale Law Journal 1401 -1430 (hereinafter cited as "A License to Abuse"). 5 2 See for example, Ontario Regulation, 134/98, supra note 48 at s. 1. 5 3 This type of regulation, as contained in the Family Benefits Act (now replaced by the Ontario Disability Support Act) was declared unconstitutional by a majority of the Superior Court of Justice (Ontario), General Division, in Falkinerv. Ontario (Ministry of Community and Social Services, Income Maintenance Branch), reported at [2000] O.J . No. 2433. That decision is now in the process of an expedited appeal to Ontario Court of Appeal. Pending the resolution of that appeal, the Court has granted a stay of the order of the General Division: Falkiner v. Ontario (Ministry of Community and Social Services, Income Maintenance Branch), Ontario Court of Appeal, [2000] O .J . No. 2750. 5 4 Claire F.L. Young, "Taxing Times for Lesbian and Gay Men: Equality at What Cost?" 17 Dalhousie Law Journal 534 - 559 (hereinafter cited as "Taxing Times"). At 535 Young questions the desirability of redefining 'spouse' in the Income Tax Act to include same-sex couples in part because she 'conclude[s] that it is those couples in which one partner is economically dependant on the other that would benefit most from being included as spouses under the Act.' For a discussion of the ways in which the system of maternity benefits privileges women in dependent relationships see: Nitya Iyer, "Some Mothers Are Better Than Others: A Re-examination of Maternity Benefits" in Susan B. Boyd, ed. Challenging the Public /Private Divide: Feminism, Law and Public Policy (Toronto, University of Toronto Press, 1997), 168 - 194 (hereinafter cited as "Some Mothers Are Better"). 5 5 David Island & Patrick Letellier, Men Who Beat the Men Who Love Them: Battered Gay Men and Domestic Violence (New York: London: The Haworth Press, 1991) (hereinafter cited as 'Men Who Beaf) at 1 3 - 1 4 . 5 6 Schilit, Rebecca and Gwat-Yong Lie, "Substance Use as a Correlate of Violence in Intimate Lesbian Relationships" (1990) Vol. 19, Part 3 Journal of Homosexuality 51 (hereinafter cited as "Violence in Intimate Lesbian Relationships") at 58. See also, Ellen Faulkner, "Lesbian Abuse: The Social and Legal Realities" 16 Queen's Law Journal 261-286 & "Woman-to-Woman Abuse: Analyzing Extant Accounts of lesbian battering" in George S. Rigakos and Kevin D. Bonnycastle eds. Unsettling Truths: Battered Women, Policy, Politics, and Contemporary research in Canada (Vancouver: The Collective Press, 1998) at 52-62. 5 7 See "A License to Abuse," supra note 51 and Pamela Choice and Leanne K. Lamke, "A Conceptual Approach to Understanding Abused Women's Stay/Leave Decisions" (1997) Vol . 18, No. 3 Journal of Family Issues 290 - 314 (hereinafter cited as "Women's Stay/Leave Decisions") at 305. 58 Men Who Beat, supra note 55, at 23. 5 9 Susan B. Boyd "(Re)Placing the State: Family, Law and Oppression" (1994) 9(1) Canadian Journal of Law and Society 39 - 73 at 53 - 54. The homophobia of police and other state enforcement agencies also results in a similar reluctance on the part of gay men: Men Who Beat, supra note 55. Immigrant women of colour may not wish to call the police or may be at a disadvantage even if they do because of 95 the racism of police, language inability, historically informed fear of the state/police, fear of loss of economic support should their abusive partner be imprisoned or deported and community censure: see "A License to Abuse," supra note 51 and Dianne L. Martin and Janet E. Mosher, "Unkept Promises: Experiences of Immigrant Women With the Neo-Criminalization of Wife Abuse" (1995) 8 Canadian Journal of Women and the Law 3 -44 (hereinafter cited as "Unkept Promises") 6 0 Many aspirant immigrant spouses apply for landing from within Canada under the H&C system and await 'landing' while residing with their spouse. Exemptions from the requirement to apply for permanent residency outside Canada (pursuant to Immigration Act, supra note 2 s. 9(1)) is authorised pursuant to s. 114(2) of the Immigration Act, supra note 2 and s. 2.1 of the Immigration Regulations, supra note 6 6 For example, the H&C Guidelines, supra note 8, describe the situation in this way at 1.7.2: To be granted landing, the applicant must meet the requirements of subsection 5(2) of the Act which states that an immigrant shall be granted landing if he is not a member of an inadmissible class and otherwise meets the requirements of the Act and Regulations [such as having a 'sponsor' if coming in as part of the 'family class],..A FINAL POSITIVE determination about admissibility and whether the applicant meets landing requirements can only be made at the time of the landing interview.' (emphasis is as shown in original). 6 2 "Unkept Promises," supra note 59 at 26. 63 H&C Guidelines, supra note 8 at 8.10: Immigration '[o]fficers are reminded to consider using their positive [H&C] discretionary authority where the spouse...of a Canadian citizen of permanent resident leaves an abusive situation and, as a result, does not have an approved sponsorship... .' 6 4 See discussion of H&Cs in 'Introduction.' 6 5 H&C Guidelines, supra note 8 at 8.10. 66 H&C Guidelines, supra note 8 at 6.2. 6 7 "Unkept Promises," supra note 59 at 9. 6 8 See "Unkept Promises," supra note 59 at 41. 69 Immigration Regulations, supra note 6 at s. 2(1). 7 0 For example, see the social assistance regulations referred to, supra note 48 7 1 See, for example, "Women's Stay/Leave Decisions," supra note 57 at 305: 'Abused women's unemployment has been associated with staying in, or returning to, an abusive relationships, whereas having a job has been associated with successful separation... .' 7 2 "Unkept Promises," supra note 59 at 35. 7 3 Michael P. Jacobs, "Do Gay Men Have a Stake in Male Privilege? The Political Economy of Gay Men's Contradictory Relationship to Feminism," in Amy Gluckman and Betsy Reed, eds., Homosexual Economics: Capitalism, Community, and Lesbian and Gay Life (New York: Routledge, 1997) 165-84 at 173. (Quoted in "Family, Law and Sexuality," supra note 24 at 378 - 379.) 7 4 By which I mean an approach which insists that we are no different from heterosexuals, as opposed to demanding respect for our right to be different and our actual differences, where they may exist. 7 5 "Some Complicating Thoughts," supra note 19 at 58. 76 Ibid. For an example of a legal challenge to this practice of basing benefits upon a universal model of the family see: Jbdy Freeman "Defining Family in Mossop v. DSS: The Challenge of Anti-Essentialism and Interactive Discrimination for Human Rights Litigation" (1994) 44 University of Toronto Law Journal 41 - 96 (hereinafter cited as "Defining Family") 7 7 "Taxing Times," supra note 54 at 535. 78 New Directions, supra note 3, at 10. 7 9 "Some Mothers are Better," supra note 54. 80 Compare for example the chapters contained in Howard Adelman et al., eds., Immigration and Refugee Policy: Australia and Canada Compared, Volume II (Toronto: University of Toronto Press, 1994) with Don DeVoretz, ed. Dimishing Returns: the Economics of Canada's Recent Immigration Policy (Toronto: C D . Howe Institute, 1995). 8 1 Compare the work of Don DeVoretz, ibid., with some of his earlier analyses contained in Don DeVoretz, Immigration and Employment Effects (Ottawa: Institute for Research of Public Policy, 1989) (hereinafter cited as 'Immigration and Employment Effects'). 8 2 Lisa Marie Jakubowski, Immigration and the Legalization of Racism (Halifax: Fernwood Publishing, 1997) (hereinafter cited as 'Immigration and the Legalization of Racism") at 71. See also, "Economic Effects of the Host Community," supra note 29 at 455 and 457. 8 3 "Economic Effects of the Host Community," supra note 29 at 452. 96 84 Immigration and Employment Effects, supra note 81 at 2. 85 Immigration and the Legalization of Racism, supra note 82 at 65. See also "Migrant and Immigrant Families," supra note 32 at 332: '...immigration officials have been concerned that people of the "wrong" origins make excessive use of family reunification provisions...The issue of family migration is at present racialized, in part, because immigration officials wish to "prevent Canada's immigration movement from becoming concentrated in a small number of developing countries" (Star-Phoenix, Sept. 1, 1990: A12). The terms "developing countries" or "non-traditional source countries" are simply euphemisms used by immigration officials used (sic.) to describe the migration to Canada of "non-white races" who are seen as "problem creating".' 86 Supra note 48. 8 7 "Paradise Lost," supra note 33 at 622. 8 8 "Some Mothers are Better," supra note 54 at 176. 8 9 "Migrant and Immigrant Families," supra note 32. 9 0 A person who wishes to 'sponsor' a member of the 'family class' must generally establish that he or she earns sufficient income to take financial responsibility for the member. This requirement is 'waived' in the case of the sponsorship of, inter alia, a 'spouse.' However, the rules of 'inadmissibility still apply: Immigration Regulations, supra note 6 at s.5(2)(f) & Schedule IV: the 'Low Income Cut-off.' 91 Immigration Regulations, supra note 6 at 19(1 )(b) which reads in full: 'persons who there are reasonable grounds to believe are or will be unable or unwilling to support themselves and those persons who are dependant on them for care and support, except persons who have satisfied an immigration officer that adequate arrangements, other than those that involve social assistance, have been made for their care and support;' (emphasis added). 92 Immigration Law and Practice, supra note 7 at 13.31. 9 3 The H&C is an application to be exempt from regulations; the rules of inadmissibility are set out in the Immigration Act, supra note 2. 94 Processing Members of the Family Class, OP 2, June 1996 at 14.3, page 49. 9 5 See for example, New Directions, supra note 3. Of course, as I have also argued above, this must be understood as part of a larger trend of erosion of the Canadian welfare state in favour of privatised responsibility for people's well-being. 6 M.V. Lee Badgett, Income Inflation: The Myth of Affluence Among Gay, Lesbian, and Bisexual Americans (New York: Policy Institute of the National Gay and Lesbian Task Force and Institute for Gay and Lesbian Strategic Studies, 1998) at 15. See also "Taxing Times," supra note 54, at 555. 9 7 Jacinth Herbert, "'Otherness' and the Black Woman" (1989) 3 Canadian Journal of Women and the Law 296-279 at 275. 9 8 "Migrant and Immigrant Families," supra note 32 at 333. 99 New Directions, supra note 3 at 6. 1 0 0 See "Annual Immigration Plan[s]," supra note 28. 1 0 1 See "Canada - A Welcoming Land: 1999 Annual Immigration Plan," Tabled in October 1998, supra note 28 at 7. 1 0 2 Susan B. Boyd, "Challenging the Public/Private Divide: An Overview" in Susan B. Boyd, ed. Challenging the Public/Private Divide: Feminism, Law and Public Policy (Toronto: University of Toronto Press, 1997) at 18. 1 0 3 "A Cocktail of Alarm," supra note 51 at 125. 104 New Directions, supra note 3 at 21 - 26. 1 0 5 "Report from a Rotten State," supra note 36 at 136. 1 0 6 At 54. 1 0 7 Gwen Brodsky, "Out of the Closet and Into a Wedding Dress? Struggles for Lesbian and Gay Legal Equality" (1994) 7 Canadian Journal of Women and Law 523 - 535 (hereinafter cited as "Out of the Closet") at 532. 108 Immigration and the Legalization of Racism, supra note 82 at 75. 1 0 9 See "Annual Immigration Plan[s]," supra note 28. For example, the amount planned for 1996 was 34,700 whereas for 1999 it is a mere 17,300. As a percentage of total number of immigrants planned parents and grandparents accounted for 19% in 1996 and only 9% in 1999. 1 1 0 Emphasis added. 111 New Directions, supra note 3 at 23. 97 1 1 2 "Taxing Times," supra note 54 at 556. 1 1 3 "Out of the Closet," supra note 107 at 532. 1 1 4 Kathleen A. Lahey, Are We "Persons" Yet: Law and Sexuality in Canada (Toronto: University of Toronto Press, 1999) at 266. 1 1 5 What she terms 'rights talk,' Lesbian and Gay Rights in Canada, supra note 18, Chapter Four. For a more general description of this typically liberal assumption, and the implications of the entrenchment of the Charter of Rights and Freedoms in particular, see Joel Bakan, Just Words: Constitutional Rights and Social Wrongs (Toronto: University of Toronto Press, 1997). For an earlier, but still trenchant analysis of some of these issues, also see, Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada (Toronto: Thompson Educational Publishing Inc., 1989). 116 Lesbian and Gay Rights in Canada, supra note 18 at 78. 117 Ibid, at 99. 1 1 8 For a description of a legal strategy which works towards this goal see the description of the Intervener's Factum submitted to the Supreme Court of Canada in Mossop in "Defining Family," supra note 76. 1 1 9 The " E G A L E Recommendations" supra note 10 hints at such an approach: 'In E G A L E ' s view, the objective should be to identify relationships which are bona fide, rather than just relationships which fall within certain artificially-constructed criteria' at 4. 1 2 0 "Towards a Contextualized System," supra note 26 at 4. 1 2 1 This process of open debate about the function of family may avoid some of the pitfalls of 'additive' reform described in "Some Complicating Thoughts," supra note 19 at 34 in this way: "Reforms that attempt to modify current laws by "adding on" newly recognized family forms tend to assimilate these new forms to the core model of the "traditional" family in order to maintain uniformity in the law. Some families still get left out and the families that are added in may be pushed into shapes not of their own choosing." 1 2 Report of the National Consultation on Family Class Immigration, Refugee Law Research Unit, Centre for Refugee Studies, York University, June 1994 at 3. 1 2 3 For example, in "Family, Law and Sexuality," supra note 24, Susan B. Boyd says this: '...in M. v. H., although heteronormativity was of course challenged, the ways that the legal arguments had to be formulated meant that the potentially disruptive lesbian subject was absorbed back into familiar roles and, to a large extent, her disruptive potential was displaced.' at 381. 1 2 4 See for example the judgement of Cory and lacobucci J J . in the Supreme Court of Canada's decision in M. v. H. [1999] 2 S.C.R. at paragraphs 110 and 127. 1 2 5 See "Family, Law and Sexuality," supra note 24 at 381. 1 2 6 See for example web-site of E G A L E at www.egale.ca for a series of press releases dated October 25 t h, November 3 r d and 25 t h of 1999 issued on the subject. 1 2 7 Ibid. Press Release, "Separate is Unequal! No separate definition for those in same-sex relationships" November 3, 1999. 1 2 8 Kathleen A. Lahey, Are Wee Persons Yet?: Law and Sexuality in Canada (Toronto: University of Toronto Press, 1999) at 266. 129 M. v. H., supra note 42 at paragraph 127. 1 3 0 Downloaded from http://www.cic.qc.ca/enqlish/about/policy/imm-faq e.html on April 7, 2000. 98 Chapter Three: The Limited Language of Law INTRODUCTION In this last chapter of the body of this thesis I turn my attention to another very important branch of law, namely judge made law. In particular, I focus on the dec is ions of the S u p r e m e Court of C a n a d a interpreting the Canadian Charter of Rights and Freedoms1 [hereinafter 'Charter']. Both before and s ince the ratification of the Charter, it has been the subject of crit icism by 'progressives ' and 'conservat ives ' al ike. For example , from a progressive perspect ive, Michael Mande l caut ioned against the ' legalization of polit ics'—the apparent replacement of '"conflicts of interest" with "matters of pr inc ip le ' " 2 —and crit icized the Charter as an inherently undemocrat ic instrument. More recently, authors such as Joe l Bakan , Judy Fudge and Harry G l a s b e e k have not only crit icized the form and process of the Charter, perse, but have a lso taken a im at the Charter's apparent functional inability to effect the type of soc io -economic change or normative political v is ion they supports . 3 For example , in his book, Just Words: Constitutional Rights and Social Wrongs4 [hereinafter 'Just Words'] Bakan openly assoc ia tes his crit icism of the Charter with a 'normative standpoint': his vision of 'social justice' and 'progressive ' socia l change . 5 Put simply, he quest ions whether the Charter has an effective role to play in bringing about the type of society in which he w ishes to live. Th is type of methodology s teps outside of traditional legal d iscourse or doctrinal analysis in two ways . First, the normative and admittedly political va lues by which judgments are judged operate outside the al legedly scientif ic and value free body of rules referred to as 'doctrinal ' or ' internal legal ' analys is. 99 Second ly , the result of a given case is examined not only in terms of the success of the claimant, but a lso in terms of its systemic and societal impact more broadly. Doctrinal analys is , need not, however, be applied to the exc lus ion of an exploration of the policy implications of particular dec is ions, or v ice versa . In her article "Symes v. M.N.R.: Where S e x Meets C l a s s " 6 Audrey Mackl in jux taposes c lass ic doctrinal analysis with a more external, contextual analys is . In the Federa l Court of Appea l decis ion (ultimately upheld by the Sup reme Court of C a n a d a on different grounds) the Court found that the term 'bus iness expense ' could not be interpreted to include child care expenses and that this exclusion did not violate the Charter equality rights of the claimant, a lawyer with her own practice. Mackl in effectively employs internal legal analys is to chal lenge the Court 's sect ion 15 analys is . In a cr isp and eloquent deployment of legal logic, she demonstrates the aridity of the Court 's application of sect ion 15 to the facts of this case : The gist of Mr. Just ice Decary 's posit ion is that it is absurd to grant S y m e s parity with bus inessmen if, in so doing, she is p laced in a superior position to other women . To put it another way, it is preferable that all women be equal ly d isadvantaged relative to men if the alternative is to improve the situation of the best-off w o m e n . 7 On the other hand, consider ing the broader context that 'tax deduct ions are inherently regressive, ' that 'full deductibility widens the gap between the economical ly privileged and others' and 'does nothing to assist parents currently unable to purchase child care serv ices ' 8 , she a lso conc ludes that 'Symes ' cause [is] one which champions c lass privilege as opposed to sex equal i ty ' 9 and should not, therefore, be supported as a 'feminist' cause . But even though she surveys the dec is ion from both perspect ives, they remain mutually exc lus ive on a functional level. S h e does not apply contextual factors to c lass ic legal d iscourse. 100 Mackl in conc ludes that although from a 'doctrinal' perspect ive the Federa l Court of Appea l got it wrong, from a contextual or 'policy' perspect ive, a positive result in S y m e s ' favour would have been undesirable. From the doctrinal perspect ive she conc ludes that '[a]t worst, S y m e s is attempting to redress a d isadvantage she exper iences as a w o m a n while leaving intact the current sys tem's preferential treatment of bus iness people, a c lass to which she be longs . ' 1 0 However , she also conc ludes that 'from the perspect ive of feminist legal strategy, the hazards of promoting Beth S y m e s ' claim...far exceed the potential benefits' because it will w iden the gap between 'upper-middle c lass , se l f -employed, professional women ' who will be able to fully deduct their child care expenses and those salar ied women who will only be able to deduct a portion of their expenses , as well as those who cannot afford child care at a l l . 1 1 But surely, it would be a very impover ished version of sect ion 15 'doctrine' which would permit, or demand this kind of socia l (in)equality? Where Mack l in and I differ is that in my opinion, the 'doctrine' wh ich, accord ing to her should have resulted in S y m e s ' being success fu l—namely , sect ion 15 equality ana lys is—shou ld itself incorporate a broader contextual analys is of the equality of all women in their a c c e s s to child care. A s Mackl in herself notes: If the goal of sect ion 15 in this context is to redress the discriminatory impact of tax laws on members of d isadvantaged groups, there can be no pretext for confining the inquiry to sect ion 18(1) [a bus iness deduction] of the Act or the remedy to bus iness women . Insofar as tax deduct ions are concerned , the real issue would be the inadequacy of the partial deduct ion under sect ion 63 in facilitating sel f -employed and salar ied women 's a c c e s s to the paid work fo rce . 1 2 Never the less, it is precisely this sort of artificial 'confinement' of analys is which Mackl in tacitly endorses in S y m e s ' right as the claimant to f rame the equality issue as a compar ison between bus inessmen and bus inesswomen, to the exc lus ion of all others. 101 Accord ing to her approach, although the feminist movement should promote an equality that cons iders the c i rcumstances and benefits of a broad cross-sect ion of women , once the matter gets into court, the Charter's doctr ine and process demands that the c i rcumstances of the claimant be universal ised to the exc lus ion of all others. Mackl in 's rigid separat ion of internal (legal) versus contextual (policy) analysis results in two separate normative vers ions equal i ty—one doctrinal and the other soc io-poli t ical—which sit very uncomfortably next to each other. The conflict spr ings from her inconsistent application of the principles of ant i -essent ial ism to feminist legal d iscourse. Mackl in f inds fault in the history of feminist litigation because of its 'essential ist ' presentation of the needs of middle-c lass, and largely white w o m e n as those of all women : Contemporary feminist theory and practice [has] been crit icized (not without justification) for a propensity to not only give priority to the problems most likely to be encountered by middle c lass , white w o m e n , but a lso to universal ize these exper iences and represent them as emblemat ic of "women's condit ion". In my view, depicting Symes as a sect ion 15 case d isp lays this essent ia l ism in ac t ion . 1 3 Yet , in her doctrinal analys is of the application of sect ion 15, she d ismisses the negative c lass implications of a finding in favour of S y m e s as irrelevant. Mackl in argues that the Federa l Court of Appea l ' s analys is of sect ion 15 in the Symes c a s e should have been limited to a considerat ion of the type of 'd isadvantage she exper iences as a woman.,14 Mackl in a s s u m e s , rather than interrogates S y m e s ' ability to blinker the Court 's comprehens ion of a complex system to a considerat ion of one ground of discrimination, as it is exper ienced by her, as a relatively privi leged w o m a n . In this paper, it is precisely this aspect of sect ion 15 equality doctr ine and litigation that I wish to critically examine. C a n the Charter's sect ion 15 doctr ine comprehend non-essent ia l ized subjects? In the context of Charter litigation by a 'non-essent ia l ized ' 102 subject I mean a litigant who is not reduced to the one or more character ist ics which cor respond to the listed or ana logous ground(s) c la imed as the bas is of the discrimination. It is my hypothesis that because sect ion 15 doctrine has been developed in relation to "grounds" of discrimination and homogen ised "groups" of people, it tends to privilege an understanding of discrimination that universal izes the exper iences of those who only exper ience oppress ion in relation to one Charter ground or socia l characterist ic. The converse formulation of this theory is that the Charter is now largely incapable of redressing, or even comprehending, the burdens of people who exper ience ' intersectional ' discrimination and oppress ion. By ' intersectional ' I mean the exper ience of a combinat ion of multiple forms of oppress ion, which results in new and unique forms of oppress ion. In the first sect ion of this chapter I will survey several aspec ts of Charter p rocess and jur isprudence—part icular ly that of the Sup reme Court of Canada - r -wh ich general ly impede the ability of courts to comprehend intersectional discr iminat ion. This survey is not, therefore, meant to provide a broad overview of the Sup reme Court of C a n a d a ' s equality jur isprudence; rather, I intend simply to highlight some of the doctrinal and operational obstac les that, in my opinion, prevent the remedy of intersectional oppress ion. In the second sect ion of the paper I will contextual ise the d iscuss ion by considering equality rights litigation related to the ground of 'sexual orientation'. I will argue that once the ground of 'sexual orientation' is invoked in Charter litigation, all other character ist ics of c la imants, and of gays and lesbians more general ly, are effectively e r a s e d 1 5 . In this sect ion, as in the previous chapter, I will focus on a more contextual 103 analys is of the broader policy implications of these dec is ions from multiple perspect ives, or communit ies of interests. In the conclus ion to this chapter I will propose an alternative approach to understanding equality, discrimination and oppress ion in the Cour ts . It is incumbent upon the Court to investigate and explicitly identify those communi t ies of interests who will and will not benefit from a proposed remedy. I will argue that, as opposed to categor ies of people and mutually exc lus ive grounds of discr iminat ion, the concept of "communit ies of interests" will encourage Courts to grapple with the complex nature of oppress ion. ' G R O U N D S & G R O U P S ' A N D O T H E R ESSENTIALIST U N D E R T O W S IN S E C T I O N 1 5 D O C T R I N E A n anti-essential ist methodology, in my opinion, is one which at least strives to comprehend the possibil ity of an infinite variety of socia l locat ions, of unique identity(ies), rather than 'fixing' homogeneous categor ies of people. Unfortunately, as Martha Minow expla ined, we are incapable of holding the complexi ty of the world in our minds: 'We do not know how to descr ibe individuals as unique except by reference to traits that actually draw them into membership in groups of people shar ing those trai ts. ' 1 6 In the context of sect ion 15 legal analys is , this inability is reflected in the centrality of 'grounds' to the process, and the use of a claimant 's membersh ip in a 'group' as the bas ic units of sect ion 15 analys is . Never the less, Nitya Duc los has observed : The error in the current approach lies not so much in the use of categor ies, which may well be intrinsic to the way we think, but in the assumpt ion that the particular categor ies we are us ing now are natural, objective, and permanent. W e can continue to use the categories we have, in this case the grounds of discrimination, but we should strive to make them flexible, dynamic, and relational. A complaint al leging discrimination on one ground should not immediately focus...[attention] on 104 that particular characterist ic of the complainant. Instead it should provide an occas ion for consider ing the whole p icture. . . 1 7 A s I might put it, the problem lies not with positing categor ies, but with their peremptory fixation, without debate or in depth analys is . In Canada (Attorney General) v. Mossop18 [hereinafter 'Mossop'] a gay man had appl ied for, and w a s denied 'bereavement leave' to attend the funeral of his same-sex partner's father because his collective agreement def ined ' spouse ' exclusively as someone of the 'opposi te-sex. ' He argued that this definition constituted discrimination on the ground of his 'family status' contrary to the Canadian Human Rights Act.:a Although the Ontario Court of Appea l had already determined in Haig that the Charter required that 'sexual orientation' be 'read in' as another protected ground within that Act , the Charter w a s not relied upon by the claimant in that argument. Essent ia l ly , Mr. M o s s o p argued that his relationship constituted a 'family' and w a s consequent ly protected from discrimination based upon the ground of 'family status, ' regardless of the sex of his partner or whether or not 'sexual orientation' was recognized a s a separate ground of discrimination. In rejecting this argument, Lamer C . J . sa id : It is thus c lear that when Par l iament added the phrase "family status" to the Engl ish version of the CHRA in 1983, it refused at the s a m e time to prohibit discrimination of the basis of sexual orientation in that Act . In my opinion, this fact is determinative. I find it hard to see how Parl iament can be d e e m e d to have intended to cover the situation now before the Court in the CHRA when we know that it specif ical ly exc luded sexua l orientation from the list of prohibited grounds of discrimination contained in the Act. In the case at bar, Mr. Mossop ' s sexual orientation is so c losely connected with the grounds which led to the refusal of the benefit that this denial could not be condemned as discrimination on the basis of "family status" without indirectly introducing into the CHRA the prohibition which Par l iament specif ical ly dec ided not to include in the Act , namely the prohibition of discrimination on the basis of sexual or ientat ion. 2 0 Mr. M o s s o p ' s sexual orientation erased his family status: his identity—who he was , his intimate familial re la t ionsh ips—became completely overwhe lmed, and therefore defined 105 by his sexual orientation. Al though Lamer C . J . added that this 'does not mean that the hypothesis of over lapping grounds of discrimination should be ruled out in other contex ts ' 2 1 he conc luded that no such overlapping could occur in this case because Par l iament had dec ided not to include sexual orientation in the list of prohibited grounds. Nitya Duc los said this about the legal fal lacy upon which the grounds-based approach to understanding discrimination is based : It is only when one becomes immersed in the world of law that race and gender are extracted from the whole person and become mutually exc lus ive categories of discrimination. It is only when engaged in legal thinking that race discrimination and sex discrimination become separate observable th ings . 2 2 Ironically, Lamer C . J . defends the right of Par l iament to recognize (and alternatively ignore) multiple grounds—or ' legal identit ies'—at the expense of permitting courts the ability to comprehend the complex 'real identities' of people, their inseparable, ' intersectional identity(ies)' descr ibed by Duclos. His acknowledgement of the potential for 'overlapping grounds' amounts to an endorsement , rather than a chal lenge to the process of the p iecemeal extraction and ( in)comprehension of the ' intersectional identity(ies)' of people facing discrimination. His focus on the 'grounds' codif ied in the Canadian Human Rights Act c louds his ability to s e e the nature of their intersection, the inseparabil i ty of the sexual orientation discrimination in the lived family status discrimination exper ienced by Mr. M o s s o p : Fami ly status is connected to the other bases of discr iminat ion, then, in that it has served as a conduit or mechan ism by which sex i sm, racism and homophobia (to name just three) have been secured and perpetuated. To put matters somewhat differently, the famil ies which members of these groups form are not legit imized as "famil ies" because of the "nature" of their members , not the nature of their fami l ies . . . 2 3 106 Given that the denial of family status or denigration of certain family forms is, at least for historically d isempowered groups, a vehic le through which their subordinat ion is maintained and perpetuated, it a lso fol lows that the relationship between the ground "family status" and other groups of discrimination is an overlapping one. It is nonsens ica l to ask whether c a s e s which implicate one of these other grounds and family status are "really" about family status, or about race, or sex, or sexua l orientation, as if these character izat ions were mutually exc lus ive. Nor is it necessary to try and d iscern whether family status plus one of the other heads of discrimination in combinat ion produce compound or intersectional inequalit ies. The nature of the interaction between family status and the other prohibited grounds of discrimination is over lapping. In her dissent, L 'Heureux-Dube J . argued that the then Chie f Just ice 's position was 'based on an underlying assumpt ion that the grounds of "family status" and "sexual orientation" are mutually exc lus i ve . ' 2 5 L 'Heureux-Dube J . a lso endorses the ability of the courts to recognize the overlapping of grounds of discr iminat ion: It is increasingly recognized that categor ies of discrimination may overlap, and that individuals may suffer historical exclusion on the bas is of both race and gender, age and physical handicap, or s o m e other combinat ion. The situation of individuals who confront multiple grounds of d isadvantage is particularly complex. . .Categor iz ing such discrimination as primarily racially or iented, or primarily gender-or iented, m isconce ives the reality of discrimination a s it is exper ienced by individuals. Discr iminat ion may be exper ienced on many grounds, and where this is the c a s e , it is not really meaningful to assert that it is one of the other. It may be more realistic to recognize that both forms of discrimination may be present and intersect . 2 6 However , unlike Lamer C . J . , she comes to the conclus ion that 'where a person suffers discrimination on more than one ground, but...only one form of discrimination is a prohibited ground.. .one should be caut ious not to character ize the discrimination so as to deprive the person of any protect ion. ' 2 7 Essent ia l ly, her d isagreement with Lamer C . J . amounts to a d isagreement about the proper appl icat ion of a g rounds-based approach of 'over lapping '—as opposed to ' intersectional '—discrimination to the facts of this case . Unfortunately, although in subsequent dec is ions L 'Heureux-Dube J . cha l lenges the use of a g rounds-based approach to understanding d iscr iminat ion 2 8 , in her d issent in 107 Mossop, her deference to the centrality of a grounds-based approach ultimately a lso results in an incomprehension of lived intersectional identity(ies) and discrimination. S h e posits a 'practical ' solution to situations of intersectional discrimination that, she suggests , permits one to ' ignore the complexity of the interaction, and character ize the discrimination as of one type or the o ther ' 2 9 where both are prohibited. S o m e of the problems with this approach are made apparent by its hypothetical application to the Amer ican c a s e of DeGraffenried v. General Motors30 [hereinafter 'DeGraffenried']. In that case a group of black women sought to chal lenge their employer 's seniority sys tem on the ground that it discriminated against them as 'black women ' , distinct from both black and female emp loyees in general . B e c a u s e the employer had only begun to employ black women in 1964 after the passage of the civil rights legislation prohibiting race discrimination, they all lost their jobs under the appl icat ion of a seniority system in a subsequent recess ion . T h e Court refused to certify them a s a c lass , say ing: [P[laintiffs have failed to cite any dec is ions which have stated that B lack women are a specia l c lass to be protected from discrimination...The plaintiffs are clearly entitled to a remedy is they have been discr iminated against. However, they should not be al lowed to combine statutory remedies to create a new 'super-remedy' which would give them relief beyond what the relevant statues intended. Thus , this lawsuit must be examined to see if it states a cause of action for race discr iminat ion, sex discr iminat ion, or alternatively either, but not a combinat ion of bo th . 3 1 The Court then summari ly granted judgement in favour of the defendant on the grounds that 'prior to 1964 Genera l Motors did hire women—al though they were of course white women—who were unaffected by the layoff.... ' 3 2 And rather than attending to the (judicial ly-excised) race discrimination aspect of their c i rcumstances, 'the Court recommended that the plaintiffs join cause with a group of black men who were also suing Genera l Motors for its racist employment p rac t ices . ' 3 3 L 'Heureux-Dube J . 's assert ion that although 'multiple levels of discrimination may exist, multiple levels of 108 protection may not ' 3 4 is ana logous to the District Cour ts refusal to 'create a new "super - remedy" . ' 3 5 A s Mary Eaton points out, L 'Heureux-Dube J . ' s suggest ion that courts [...] "ignore the complexity of the interaction" and reduce the claim to a s imple single head is to return to the f laws of DeGraffenried, and ensures that any remedies fashioned will prove inadequate. . . .Character iz ing the complaint as either, but not both, race and sex discrimination thus misses the point [of intersectional discrimination and oppression] a l together . 3 6 The remedial c rudeness of a strictly grounds-based approach to intersectional identity(ies) is a lso manifest in the reasons g iven, by both the majority and d issents, in Thibaudeau v. Canada37 [hereinafter 'Thibaudeau']. In this c a s e , however, the 'categorical ' thinking of the Court is not reflected in d iscuss ions about the proper definition and application of the appropriate 'grounds' of discr iminat ion. In Thibaudeau, the emphas is , and the crux of the d isagreement between the just ices of the Supreme Court of C a n a d a , w a s on the proper 'group' or 'constitutional unit' to be cons idered: the nature of the people (or person) within the category or 'ground. ' And as I shall d iscuss , how the relat ionship/connection between the two concepts are understood is an important issue, and one, in my opinion, given too little thought by the Supreme Court of C a n a d a . Thibaudeau involved a chal lenge to the provisions of the Income Tax Act that taxed child support payments in the hands of the (recipient) custodial parent. The (payor) non-custodial parent, on the other hand, was permitted to deduct the amount of child support payments. T h e s e provisions constituted a reversal of the general principle of taxation law that income is taxed in the hands of the earner. On that bas is , all of the judges of the Sup reme Court of C a n a d a agreed that the provis ions at the very least drew a distinction related to some descript ion of separated/divorced custodial parents. Though 109 McLach l in is the only member of the Court who dealt with the matter at any length in her dissent ing opinion, it appears that all the judges accepted that the distinction was an ana logous ground of d iscr iminat ion. 3 8 The objective behind these provisions was that s ince recipient spouses (mostly women) were in a lower marginal tax rate than the payors (mostly men) in about 67 per cent of c a s e s , taxing the payments in the hands of the recipient resulted in an 'overall ' tax-saving in terms of the income used to make child support payments. Theoretical ly, that tax sav ing w a s to be carr ied over to the recipient by way of a 'grossing up' by the Fami ly Court judges of the amount of the child support in order to reflect that sav ing. And accord ing to the ev idence before the court, in some c a s e s , the sys tem did work as anticipated. The majority of the Court d ismissed the claim on the bas is that the provisions caused no burden to the relevant constitutional unit, which they identified a s the post-divorce/separat ion couple. A s Gonthier J . , for the majority, reasoned: In v iew of the substantial sav ings generated by the inclusion/deduct ion sys tem, it is c lear that the group of separated of d ivorced parents cannot as a whole c la im to suffer prejudice assoc ia ted with the very existence of the sys tem in quest ion. O n the contrary, it was shown that on the whole members of the group derive a benefit from it: as most of the recipient parents are subject to a marginal tax rate lower than that of the patents paying the maintenance, it can be sa id that the purposes for which the sys tem was created have been to a large extent a c h i e v e d . 3 9 McLach l in J . , however, based her analys is of whether or not there w a s a 'burden' for the purposes of sect ion 15 on a smal ler group or unit of analys is . In dissent, she focussed upon the particular facts of M s . Th ibaudeau 's c a s e , namely, that because the judge did not, in fact, gross up enough in her c a s e , her tax burden w a s increased. Essent ia l ly , the perspect ive of M s . Th ibaudeau, as an individual, became the basis for the definition of the relevant constitutional unit. B a s e d upon this understanding of the 110 relevant constitutional unit, she conducted a direct compar ison between 'custodial ' parents and 'non-custodial ' parents: The impugned taxation scheme imposes a burden on separated or d ivorced custodial parents, which it does not impose on separated or divorced non-custodial parents. The custodial parent must include child support payments from which she gains no personal benefit. The non-custodial parent may deduct support payments from his taxable income. H e is taxed only on his actual personal income less this deduct ion. O n its face, this demonstrates adverse unequal treatment of custodial parents. The ev idence in this case suggests that taking into account the amounts from which she benefited in the form of tax credits, M s . Th ibaudeau was obl iged to pay from her own resources an addit ional $2 ,505 in federal tax for 1989 as a result of the inclusion of child support payments in her taxable income: testimony of Jean-Franco is Drouin, a tax lawyer . 4 0 B e c a u s e both Gonth ier and McLach l in J J . based their remedies upon particular categor ies of people, neither is able to fashion an appropriate remedy. A s Pothier comments : In different ways , all of the judges of the Sup reme Court of C a n a d a dealt with this care on a categorical basis. They all ultimately ignored the fact that the inclusion/deduction system has differential impacts depending on the c i rcumstances. By looking only at the level of the couple and only at the aggregate effect, the majority assumed without quest ion that the family law sys tem is capab le of properly allocating the tax sav ing in the 67 per cent of c a s e s where there is one, and ignored the fact that for a substantial minority of c a s e s (29 per cent), the inclusion/deduct ion system produces a net loss. On the other hand, the two d issenters , in looking only at the recipient spouse , ignored the cases where the works, both theoretically and practically, as it is supposed to, and ordered a remedy appl icable independently of whether there w a s , in the particular c i rcumstances, a demonstrated detriment in cumulat ive effect. 4 1 Unfortunately, even though L 'Heureux-Dube J . and Cory and lacobucci J J . adopted a more nuanced , ef fects-based rather than an exclusively grounds/group based approach, ultimately, neither avoid the 'all or nothing' pitfalls of categorical thinking. L 'Heureux-Dube J . adopts a multi-stage process of thinking about whether M s . Th ibaudeau is part of a group that suffers a burden for the purpose of sect ion 15: 111 Thus , although M s . Th ibaudeau and Mr. Cha ine fell within the 67 percent of coup les that the government c la ims benefit a s "couples" from the inclusion/deduct ion sys tem, the regime in practice not only uniquely d isadvantages M s . Th ibaudeau by cutting into the money she avai lable for the chi ldren, but a lso uniquely enr iched Mr. Cha ine to the extent that he saved tax because his marginal tax rate would have been higher than that of M s . Th ibaudeau [because the judge did not 'gross-up' enough]...It is, therefore, absolutely indisputable that M s . Th ibaudeau suffered a significant inequality. The quest ion then becomes , is she simply an individual who fell through the c racks of an otherwise equitable sys tem, or is the sys tem itself general ly unequal to custodial parents as a group? In my view...[i]mportant systemic factors preclude the family law system from properly filing the lacuna left by the inclusion/deduct ion provisions of the ITA 4 2 Eventual ly, however, she bases her conclusion upon the prioritisation of one particular sub-group of people: A denial of equality does not necessar i ly require that all members of a group be adversely affected by the distinction. It suff ices that a particular group is significantly more likely to suffer an adverse effect a s a result of a legislative distinction than any other group.. 4 3 A n d as the extract from the analys is of Pothier quoted above implies, this prioritisation results in a concomitant de-emphas is of the interests of others within the larger group. Cory and lacobucc i J J . a lso distance themselves from the approach adopted by Gonthier J.:'[...] the functional va lues/ re levance approach of Gonth ier J . focuses narrowly on the ground of distinction and , as a result, omits an ana lys is of the discriminatory impact of the impugned dist inct ion. ' 4 4 Essent ia l ly , Cory and lacobucci J J . ' s d isagreement with L 'Heureux-Dube J . and McLach l in J . relates to their factual conc lus ion regarding the overall eff icacy of the sys tem and the source of any fault in its operation: If there is any disproportionate d isp lacement of the tax liability between the former spouses (as appears to be the situation befall ing M s . Th ibaudeau) , the responsibil i ty for this l ies not in the Income Tax Act, but in the family law system and the procedures from which the support order 112 originally flow. This system provides avenues to revisit support orders that may erroneously have failed to take into account the tax consequences of the payments. Therefore, in light of the interaction between the Income Tax Act and the family law statutes, it cannot be said that s. 56(1 )(b) of the Income Tax Act imposes a burden upon the respondent within the meaning of s. 15 ju r isprudence. 4 5 Through a little causa l 'slight of hand ' , Cory and lacobucc i J J . are ab le to character ize M s . Th ibaudeau , and her c i rcumstances as anomalous within the broader group of custodial parents. This analys is follows statements made by lacobucc i J . in the earlier case of Symes v. Canada46 [hereinafter 'Symes']: [...] it would s e e m self-evident that if only some women were adversely affected by a provision, it might be possib le to fashion remedies to respond only to the affected subgroup, rather than to all women.. .Fol lowing upon this acknowledgement, however, the important thing to realize is that there is a difference between being able to point to individuals negatively affected by a provision, and being able to prove that a group or subgroup is suffering an adverse effect in law by virtue of an impugned provision. A s already noted, proof of inequality is a comparative process: Andrews, supra.47 Ironically, in my opinion, the remedy which would have been ordered by L 'Heureux-Dube J . a lso largely ignores her own valuable caution in Egan v. Canada48 [hereinafter 'Egan']: W e will never address the problem of discrimination completely, or ferret it out in all its forms, if we cont inues to focus on abstract categor ies and general izat ions rather than on specif ic effects. By looking at the grounds for the distinction instead of at the impact of the distinction on particular groups, we risk undertaking an analys is that is d is tanced and desensi t ized from real people 's real exper iences. To make matters worse , in defining the appropriate categor ies upon which f indings of discrimination may be b a s e d , we risk relying on convent ions and stereotypes about individuals within these categories that, themselves, further entrench a discriminatory status quo.49 In fashioning a remedy, both the dec is ions of the d issenters and that of the majority in different ways reinforce stereotypes. A s Pothier puts it: Thibaudeau amounts to sex discrimination because it bases policy on sexua l stereotypes without regard to the accuracy of those stereotypes...It 113 is not, as the dissent in Thibaudeau conc ludes, the taxation of child maintenance payments in the hands of the custodial parent per se [which is discriminatory]. Rather, it is the fact that the inclusion deduct ion system is mandatory, without regard to the particular c i r cums tances . 5 0 Whether the Court def ines the relevant group, or ground, by reference to the individual claimant or adopts a more systemic perspect ive, once it engages in a compar ison between 'categories' of individuals or groups it supp resses dif ferences within both categor ies. Therefore, in Thibaudeau for example , 'no one asked whether sect ion 15 is amenab le to tracking...differential e f fects. ' 5 1 O r as I would put it, none of the judges cons idered a compar ison of the many, not just two, communi t ies of interests raised by this c a s e . A s Nitya Iyer argues: '[l]nevitably, categoris ing involves making ass ignments of similarity and difference: things within the category are relatively similar, they are col lectively differentiated from things outside of the ca tegory . ' 5 2 A s the Thibaudeau decis ion reflects, another problematic aspect of categorical compar ison making within equality d iscourse is that it general ly lacks the potential to undermine, or chal lenge normative notions. The reason the norm cannot be effectively chal lenged is that it constitutes the central comparator. A s Duc los expla ins, the comparat ive process in equality d iscourse ' takes that privi leged group as the unstated model upon which antidiscrimination law is based. . .The categor ies are separate because they represent a set of possible paths of d ivergence from the central group no rm. ' 5 3 Th is aspect of equality d iscourse is reflected even more clearly in the reasoning of Lamer C . J . in Mossop, d i scussed above. In that dec is ion, in trying to come to terms with the meaning of 'family status' in the Canadian Human Rights Act, the then Chief Just ice s e e m s to cite with approval the following excerpt from the reasoning of Marceau J .A . of the Federa l Court of Appea l : 114 A status, to me, is primarily a legal concept which refers to the particular posit ion of a person with respect to his or her rights and limitations as a result of his or her being member of some legally recognized and regulated group. I fail to see how any approach other than a legal one could lead to a proper understanding of what is meant by the phrase "family status". E v e n if we were to accept that two homosexua l lovers can constitute "sociological ly speak ing" a sort of family, it is certainly not one which is now recognized by law as giving its members spec ia l rights and ob l igat ions. 5 4 This line of reasoning, of necessi ty, leads Lamer C . J . to the conclus ion that 'family status' must be understood by reference to its 'normative' meaning: heterosexual . In a related issue, because the norm becomes the central comparator, comparat ive equality d iscourse can only comprehend situations of discrimination that result from a one-step d ivergence from the norm. This explains Lamer C . J . ' s posit ion in Mossop that because 'sexual orientation' is not specif ical ly listed as a 'separate ' ground, 'family status' can bear no meaning other than a heterosexual o n e . 5 5 In this way, the norm which constitutes the root of the discr iminat ion—which in the c a s e of Mossop was the heterosexism within the concept of 'family'—not only remains unchal lenged, it is virtually e rased . Th is type of erasure is a lso manifest in the reasons of Sop inka J . in the case of Eaton v. Brant County Board of Education56 [hereinafter 'Eaton']. He says this about the status of being d isab led: The principal object of certain of the prohibited grounds is the elimination of discrimination by the attribution of untrue character ist ics based on stereotypical attitudes relating to immutable condit ions such as race or sex. In the c a s e of disability, this is one of the object ives. The other equal ly important objective seeks to take into account the true characteristics of this group which act as headwinds to the enjoyment of society 's benefits and to accommodate t h e m . 5 7 Eaton was a case in which the parents of a d isabled girl c la imed that a decis ion to place their daughter in a specia l c lass , outside of the regular c lass sett ing, constituted discrimination based on disability contrary to sect ion 15 of the Charter. Sop inka J . came 115 to the conclus ion no 'burden' had been imposed on the girl because the decis ion w a s made in her 'best interests' consider ing her 'true' character ist ics and abilit ies. A s Claire Y o u n g expla ins, Sop inka J . ' s descript ion of the 'true character ist ics ' of d isabled persons is essent ial ly an attempt to define ' them' as inherently different, without comparator. The flaw with this analys is is that difference is inherently a relational concept, which has no meaning without a comparator. The premise is that the d isabled are truly different. However , lost in the analys is are two important insights about difference and disability. The first involves the practical recognition of the role that stereotyping and socia l construct ion play in our understanding of disability and accommodat ion . What Sop inka J . might consider as "true" is actually much more complex and variable than his analys is admits. Put slightly differently, "the biological condit ion...[needs to be] conceptual ly d isentangled from the.. .social ramifications...of the condit ion." D isabled individuals are no less vulnerable and subject to negative misunderstandings than other d isadvantaged groups within Canad ian society. Rece ived truths about what such individuals can or cannot do often d isso lve upon scrutiny, revealed as simply f a l sehood . 5 8 A s Margot Y o u n g puts it, '[e]quality ana lyses , at their best, involve critical examinat ions of how difference is recognized, given meaning, and v a l u e d . ' 5 9 Unfortunately, this is precisely the aspect of equality analys is that tends to be obfuscated, or even completely omitted, within the categorical f ramework employed by the Sup reme Court of C a n a d a . Aga in in Eaton, Sop inka J . says : It fol lows that disability, as a prohibited ground, differs from other enumerated grounds such as race or sex because there is no individual variation with respect to these grounds. However , with respect to disability, this ground means vastly different things depending upon the individual and the context . 6 0 Sop inka J . posits truly essent ia l ized subjects. Leav ing as ide for the moment the added complexity of intersectional discrimination, even within the category of race, for example , there is most certainly difference. In significant ways , a South As ian in C a n a d a may exper ience his or her ' race' differently than someone of Afr ican origin. A 116 fourth generat ion Ang lo -Saxon Canad ian most certainly would exper ience their race differently from a person of colour. A wealthy person of colour would a lso be racial ized quite differently than someone who is poor. Even Sop inka J . ' s concess ion regarding the dif ferences within the category of 'disability' is f lawed because as Margot Young points out: Sop inka J . does not draw from his observat ion of this variation the important conc lus ion that the category is itself artificial and that this reduction of infinite traits into a single named strand of difference is the means by which the powerful exc lude the power less. A n d this, ultimately, is no less true of gender and r a c e . 6 1 The power to exc lude—and to obfuscate the oppress ion of all but those who are only one-step away from the central norm—is also apparent in the nature of c laimants who are success fu l . In contrast to the Eaton case where the claimant w a s clearly 'different' from the other chi ldren in a regular c lassroom, in Re Blainey and Ontario Hockey Association et al.62 [hereinafter 'Blainey3] the claimant argued that her exc lus ion from a boys ' hockey team because she was a girl was discriminatory. B e c a u s e she was hardly different at all from the boys on the hockey team to which she demanded admiss ion , she was s u c c e s s f u l . 6 3 Given that 'difference' is a relational concept, it is a lso important to pay attention to how the central norm or comparator is assumed and understood: what, or who it represents. For as R a d h a Jhappan explains, although many middle-c lass white feminists, by their essent ia l ism, have 'pitted all women against all men, in reality, they crave equality with only certain m e n . ' 6 4 Th is phenomenon is manifest in the claim of S y m e s , who wanted to be compared exclusively to ous /nessmen . A s L 'Heureux-Dube insisted: Th is is not a case about the advantageous position in society some women garner as opposed to other women , but, rather, an examinat ion of 117 the advantaged position that bus inessmen hold in relation to b u s i n e s s w o m e n . 6 5 The inability of categorical equality ana lyses to cope with the reality of complex lives and oppress ion is so clearly apparent in Symes because the split in the Court forced it to grapple with the judicial fal lacy of essent ia l ized subjects or homogeneous groups of people. In Symes, lacobucc i found that s. 63—which limited the amount that could be c la imed as a deduct ion for chi ld-care expenses—cou ld only be found to impose a 'burden' if the claimant could establ ish that he or she was a member of a sub-group which disproportionately incurred the actual monetary cost of child care. In this case , he found that: [...] the appel lant is unable to demonstrate a violation of s. 15(1) of the Charter with respect to s. 63 of the Act, s ince she has not proved that s. 63 draws a distinction based upon the personal characteristic of sex. In reaching this conc lus ion, however, I wish to note that I do not reject that such a distinction might be proved in another c a s e . The appel lant in this c a s e belongs to a particular subgroup of women , namely, married women who are entrepreneurs. It is important to real ize that her evidentiary focus w a s skewed in this d i rec t ion. 6 6 (Italics added.) lacobucc i J . ' s categorical reasoning has curious results. He repeatedly chast ises S y m e s for neglecting to provide the court with a broad picture of women 's exper iences in regard chi ld-care exper ience: I pause to note that the appel lant 's focus upon sel f -employed women to the exclusion of women employees is a very cur ious aspect of this case. . .Undoubtedly , it w a s the juxtaposit ion of s. 8(2) with s. 9 of the Act which led the appellant to take the position she took. By virtue of s. 8(2) of the Act, employees are generally prohibited from making any deductions from employment income. Accordingly, the appellant thought it desirable to distance herself from employees in this case . W h e n considering her arguments with respect to statutory interpretation, this approach is understandable. When considering her Charter arguments, it is less s o . 6 7 Yet , it is precisely just such a narrow category in which S y m e s is p laced for the purpose of identifying whether or not she exper iences a burden, lacobucc i J . reasons that even though there may be other sub-groups of women which exper ience a burden in relation to child care expenses , S y m e s is not a member of those sub-groups, and cannot therefore rely on their exper iences to establ ish discrimination. S y m e s ' exper iences are erased in two ways : first, her membersh ip within the larger group of women who exper ience a 'group-based [inequality] in power ' 6 8 are ignored; and consequent ly , her ' sex -based ' inequality in relation to men, namely, the disproportionate responsibil i ty for ch i ldcare—as compared to all men, bus inessmen and men who earn i ncomes—is a lso e rased . Her shared interest with all women to overcome the patriarchal al location of the burdens of chi ld-care is completely e rased . A s lacobucc i J . himself puts it: [...] the important thing to realize is that there is a dif ference between being able to point to individuals negatively affected by a provision, and being able to prove that a group or subgroup is suffering an adverse effect in law by virtue of an impugned provision. A s a l ready noted, proof of inequality is a comparat ive process: Andrews, supra. If a group or subgroup of women could prove the adverse effect required, the proof would come in a compar ison with the relevant body of m e n . 6 9 lacobucc i says that: [...] if I were conv inced that s. 63 has an adverse effect upon some women (for example , in this c a s e , sel f -employed women) , I would not be concerned if the effect was not felt by a]] women . That an adverse effect felt by a subgroup of women can still constitute sex-based discrimination appears clear to me from a considerat ion of past dec is ions . . . . 7 0 (Italics added.) This statement mirrors the type of 'oversimplif ication of complex lived exper iences ' crit icized by L ise Gotel l as the 'bracketing of relevant socia l c i rcumstances other than gender ' on the part of many femin is ts . 7 1 L 'Heureux-Dube J . , on the other hand, flatly rejects lacobucc i J . ' s conclus ion that S y m e s did not prove a burden related to her sex: 119 This is the reality in which M s . S y m e s lives - as a lawyer and as a mother. A reality in which she suffers disproportionately to men and , as such , is discr iminated against on the basis of her sex. S h e has proven that she has incurred an actual and calculable price for child care and that this cost is disproportionately incurred by w o m e n . 7 2 I certainly agree that a_l women suffer severe socia l and f inancial costs assoc ia ted with chi ld-bearing and rearing and that these costs are incurred whether a woman is a sel f -employed smal l bus iness owner, a lawyer, an employee or a fulltime homemaker and caregiver. In fact, it is my view that all women , as a consequence of gender, suffer d isadvantages assoc ia ted with caring for ch i ld ren . 7 3 However, although she comes to the opposite conclus ion to that of lacobucc i J . , she also engages in a form of bracketing of relevant socia l c i rcumstances other than gender. Put simply, she ignores the ways in which S y m e s ' interests diverge from those of many less privi leged women . L 'Heureux-Dube J . starts out with a broad survey of the situation of w o m e n vis-a-vis the responsibil i ty for chi ld-care: I am not unaware that income tax deduct ions are undoubtedly not the best way for government to provide ass is tance with regard to the high cost of child care and that the al lowed deduct ions under s. 63 are not representative of the real cost of child care. Pe rhaps child care should not even be subs id ized through the tax system but, rather, provided for in another manner. A s is obvious, income tax deduct ions benefit only those who have a taxable income and, as such , are a form of upside down subsidy which al lows a person with more income to spend more on child care and , consequent ly, to receive a greater portion of the government tax expenditure program in return and the deduct ion d o e s not help famil ies who cannot afford child care in the first p lace. Final ly, this type of government subs idy provides no ass is tance to the development of badly needed child care facil i t ies...Neither am I ignorant of the fact that the disparate treatment of employed persons and bus inesspersons under the Act is problematic and may require future e x a m i n a t i o n . 7 4 Never theless, ultimately she effectively d ismisses the re levance of this context: However , these are not the issues before the Court. M s . S y m e s has not put in issue the enormously complex quandary of the d isadvantagement of w o m e n general ly through the continuing socia l and economic cost of child care. S h e has raised the much narrower quest ion, al though not in any way insignificant, of the discrimination suffered by bus inesspersons - primarily 120 women - under an interpretation of the Act that d isal lows child care expenses a s a bus iness expense incurred for the purpose of gaining or producing income from her bus iness. That issue, specif ical ly the distinction between bus iness taxpayers, must be answered . M s . S y m e s ' c la im cannot be addressed simply by pointing to the greater issue of the position of women general ly. To grant her a deduct ion to which she is clearly entitled under the Act in no way d imin ishes the larger issue of child care as it appl ies to all parents, particularly w o m e n , a matter to be left for another day. I agree with the intervener the Charter Commi t tee on Poverty Issues that the appel lant d o e s not chal lenge s. 63 on the basis of either its inadequacy or its inc lus iveness; M s . S y m e s chal lenges the constitutionality of s. 63 only to the extent that it affects the court's interpretation and application of other provisions of the Act governing bus iness deduct ions. My co l league refers to family status as a possib le alternative approach, as well as to the fact that single mothers may provide a c learer example of hardship suffered as a consequence of child care than does M s . S y m e s . This may well be true, but this is no reason why the appel lant 's rights, under the Act or under s. 15 of the Charter, should not be protected. Discrimination cannot be justified by pointing to other discr iminat ion. This is not the standard to which Mr. Andrews w a s held in Andrews v. Law Society of British Columbia, supra. In Andrews, the Court did not look at the respondent and justify the infringement of his rights under s. 15 on the bas is that, in all other aspects of his life, as a white male lawyer of British descent , such discrimination on the basis of c i t izenship was acceptable, s ince he w a s likely better off than most other persons in the d isadvantaged group of non-Canad ian ci t izens. Neither can this be the standard to which M s . S y m e s is to be held. This is not a case about the advantageous posit ion in society some women garner as opposed to other w o m e n , but, rather, an examinat ion of the advantaged position that bus inessmen hold in relation to bus inesswomen. If each claim under s. 15 of the Charter required that all the problems of discrimination with respect to a particular group be remedied as a result of one investigation, /Andrews would probably not yet have been dec ided. The fact that M s . S y m e s may be a member of a more privi leged economic c l ass d o e s not by itself invalidate her c la im under s. 15 of the Charter. S h e is not to be held responsib le for all possib le discriminations in the income tax sys tem, nor for the fact that other women may suffer d isadvantages in the marketplace arising from child care. A s the appellant argues, we cannot "hold every woman to the position of the most d isadvantaged w o m e n , apparently in the name of sex equal i ty . " 7 5 This approach is mirrored in the subsequent decis ion of McLach l in J . in Thibaudeau, d iscussed above: 121 [Section] 15(1) us des igned to protect individuals from unequal treatment. Its opening words state: 'Every individual is equal before and under the law and has the right to the equal protection and benefit of the law' (emphasis added). Where unequal treatment of one individual as compared with another is estab l ished, it is no answer to the inequality to s a y that a soc ia l unit of which the individual is a member has, v iewed global ly, been fairly t rea ted . 7 6 In this way, both L 'Heureux-Dube and McLach l in J J . throw the baby out with the bath-water. I would agree with L 'Heureux-Dube J . that S y m e s should not be 'held responsible ' for the broader systemic inequalit ies of providing chi ld-care subsid ies through a regressive tax sys tem. However, I would not agree that as a Charter claimant she should be able to demand that the Court base its understanding of what 'sex ' oppress ion is exclusively from her perspect ive, that of a relatively privi leged woman . Her approach effectively reinforces a kind of 'addit ive' analys is that at best can only deal with conflicts between sub-groups of women , but can never comprehend the intersectional identities and communit ies of interests shared by all women , including those who are relatively privi leged. A s Gotel l put it: Here we can observe the construction of ' sex ism' as a first order category, whi le 'other' forms of 'discrimination' are presented a s distinct and are relegated to qualif iers. Paradoxica l ly , while the d iscourse of 'double d isadvantage ' purports to emphas i ze relevant 'dif ferences' among women , it funct ions to reinforce the notion that we all share an essent ia l 'womanhood ' . The exper ience of 'womanhood ' that is affirmed is, not surprisingly, the exper ience of the white, midd le-c lass, ab le-bodied, heterosexual w o m a n . This is because , when we 'subtract' all 'addit ional ' forms of 'discrimination' — race, c lass , sexua l orientation, ability and so on — it is she who rema ins . 7 7 Ultimately, in Symes neither L 'Heureux-Dube nor lacobucc i J J . are able, or perhaps wil l ing, to cons ider the connect ions between the oppress ion of w o m e n vis-a-v is chi ld-care general ly. Through his categorical reasoning, lacobucc i limits himself to a 122 considerat ion of the 'facts' of a manufactured sub-group of w o m e n : 'married women who are ent repreneurs . ' 7 8 Whi le L 'Heureux-Dube—in strong defence of the right of c la imants to demand a myopic considerat ion of complex i ssues—adopts a line of reasoning which sounds more like a descript ion of bush-survival tactics than a doctrine of equality: whoever makes it to Court, gets the spoi ls. Ironically, both lacobucc i and L 'Heureux-Dube J J . acknowledge that equality might better be served by a considerat ion of the broader, systemic i ssues of the ways in which chi ld-care responsibi l i t ies tend to oppress all women , lacobucc i d iv ides considerat ion of what he terms an ' instrumental ' perspect ive versus a broader perspect ive in this way: Instead of focusing upon the manner in which s.63 of the Act operates as a child care sys tem, the present appeal focused only upon the propriety of an instrumental result. This Court was invited to use the Charter to rectify a d isadvantage al legedly suffered by bus inesswomen vis a vis bus inessmen , and , in the process, this Court was invited to ignore the effect of al lowing a complete deduction on the rest of the sys tem. At the s. 1 s tage of Charter analys is , however, such an instrumental approach is inappropriate. In order to examine properly the validity of legislative object ives in a case such as the present one, it is important to cons ider both the operat ion of the Act a s a whole, and the operat ion of other government sys tems relating to child care. In a similar fash ion, I do not bel ieve that the tax deduct ion for child care e x p e n s e s could be properly examined by this Court without considerat ion being given to the entire range of government responses to family and child care issues. If inequities are proved to exist within s. 63 , surely it must be relevant to cons ider the extent to which other government programs respond to those inequities. I do not, by any means , wish to suggest that a complete response to chi ld care exists in C a n a d a , nor do I say that courts need only arrange the p ieces of a compl icated child care puzz le . Instead, I s imply wish to recognize that proper examinat ion of a taxation response to child care expenses requires one to contextual ize the f iscal response to the greatest degree possib le, in order to determine whether an apparent inequality d isc loses a justif iable legislative objective of a much broader k i nd . 7 9 123 Accord ing to this approach, a claimant must prove an adverse effect related to the particular sub-group of which she is a part. Stated conversely , a woman cannot rely upon a more genera l 'social burden' (or common interest with all women) as proof of discrimination in the sect ion 15 stage of the analys is . However , the government can utilize the full range of systemic and social benefits to justify any infringement. For her part, after engaging in a relatively nuanced review of the larger issues assoc ia ted with child care and women 's oppress ion general ly, L 'Heureux-Dube J . simply d i smisses this ' larger issue of child care as it appl ies to all parents, particularly women [as] a matter to be left for another d a y . ' 8 0 The 'first come , first served ' approach to Charter equality doctrine is a lso problematic for reasons related to the final obstacle that I will d i scuss preventing the Charter from being used to address the exper iences of intersectional discrimination and oppress ion. In his book Just Words, referred to earlier, Joe l Bakan trenchantly points out a shortcoming of many other Charter analysts: My concern is with the tendency in their ana lyses , whether in favour of the Char ter or against it, to pay insufficient attention to the constraining inf luences of economic , soc ia l , and political condit ions on the operation and effects of the Charter. That is what I try and avoid here. I argue throughout this book that the Charter, and particularly its failure to advance socia l justice, must be explained in relation to the specif ic condit ions in which it operates. Al l political institutions, including the Char ter and rights, are necessar i ly constrained in their operat ion by the wider socia l sys tem that they are establ ished to govern. That is why it is necessary to be scept ical of both Charter opt imism and pess im ism when they are based on al legedly essent ia l features of the Char ter or rights. The emancipatory and egalitarian potential of the Char ter ultimately depends on the socia l and historical c i rcumstances surrounding its u s e . . . 8 1 (Emphas is added . References omitted.) The operat ional aspect of Charter litigation, and all l i t igation-based models of rights for that matter, which I wish to briefly d iscuss , is access ib i l i t y /There are numerous factors that inf luence a person's , or group's, ability to a c c e s s l i t igation-based models of 124 rights. For example , in the context of provincial human rights c la ims, Nitya Duclos commented as fol lows: There are at least four reasons that might explain the underrepresentat ion of racial minority women complainants in human rights c a s e s . First, these w o m e n may simply lack awareness that they have legal rights to be protected from discrimination and of the procedures for remedying violat ions of those rights. [...] a third reason why racial minority women in general may not assert human rights c la ims, is that these women may distrust the legal sys tem. They may feel , with good reason, that the law is not there to help them or that is they make a c la im, it will backfire against them. Fourth, the complaints adjudication process may not respond to the reality of these women 's l i ves . 8 2 In addit ion to these briefly outl ined points, I would add that in the Charter context especia l ly , cost may be a determinative factor. It is trite that litigation is an expensive process and one that is beyond the f inancial m e a n s of many Canad ians . The implications of this fact should not, however be thought of as a strictly ' c lass ' related issue s ince '[p]overty and economic inequality are rooted in intersecting relations of c lass , gender and r a c e ' 8 3 to name just a few. Al though recognit ion of Charter enshr ined rights may not a lways require litigation, it one of the primary methods for both defining and enforcing those rights. The trouble with L 'Heureux-Dube J . ' s c laimant focussed approach is that S y m e s (and others who share her privilege) not only have the ability to pursue a sect ion 15 case all the way to the Sup reme Court of C a n a d a to enforce their individual rights, but a lso to define the very meaning of equality in genera l . 125 To review, in this sect ion I have attempted to identify and d iscuss the obstac les currently preventing the courts from understanding the Charter's guarantee of equality in ways that are likely to remedy the oppress ion of people who exper ience intersectional oppress ion and discrimination. My central point has been that a primarily ground or group-based approach is an oversimplif ication of people 's complex l ives and socia l locations; it is one which general ly only permits a one-step d ivergence from a central, and therefore unchal lenged, norm. Even when Just ices , such as L 'Heureux-Dube and lacobucc i J J . , reject a strictly grounds-based approach, they inevitably revert to a kind of myopic categorical or group-based comparat ive model of equality. This model incorrectly e levates all of the interests of individual c laimants within a group of people to the level of a singular and universally appl icable group interest. Last ly, because of the costs and other practical operat ional aspec ts of Charter litigation, the Charter p rocess also tends to exc lude many people who exper ience intersectional oppress ion. Al l of these factors result in the perspect ive of those who are relatively privi leged being disproportionately reflected in the Court 's understanding of equality. In the next sect ion of this chapter I will continue to deve lop these themes by focussing on Sup reme Court of C a n a d a of dec is ions arising from c la ims of 'sexual orientation' discrimination in particular. And whereas in the last sect ion I focussed on a d iscuss ion of doctrine, in this sect ion I will devote equal attention to the substant ive impact of 'posit ive' dec is ions, on 'people'—rather than only 'c la imants '—of varied c i rcumstances. I will use these dec is ions as a case-s tudy to demonstrate the ways in which the broader political and soc io-economic c i rcumstances operate to reinforce the doctrinal privi leging of people who would not exper ience sys temic oppress ion 'but for' their 'sexual orientation'. 126 ' S E X U A L O R I E N T A T I O N ' V S . ' T H E L I V E S O F G A Y S , L E S B I A N S , B I S E X U A L S A N D T R A N S G E N D E R P E O P L E ' After Mossop, the Egan case was the next chal lenge to a law based upon a claim of 'sexual orientation' discrimination to be heard by the S u p r e m e Court of C a n a d a . The claimant in Egan was a gay man whose same-sex conjugal partner of several decades w ished to c la im an a l lowance 'which accord[ed] to s p o u s e s of pens ioners under the [Old Age Security Act] whose income falls below a stipulated amount, an a l lowance when they reach the age of 60, payable until they themselves become pensioners at age 6 5 . ' 8 4 The subject of the chal lenge w a s the exclusively oppos i te-sex definition of ' spouse '—which included eligible unmarried co-habitants—that prevented the benefit from being extended to Egan and his partner. The Sup reme Court of C a n a d a split right down the middle, with Sop inka J . writing the swing dec is ion. La Forest J . (for Lamer C . J . , Gonthier and Major JJ . ) found that because the distinction of 'sexual orientation' was 'relevant' to the legitimate legislative objective of support ing elderly, opposi te-sex couples who formed the fundamental procreative unit of Canad ian society, there was no violation of sect ion 15. L 'Heureux-Dube J . (for herself), McLach l in J . (for herself) and Cory and lacobucc i (for themselves) all found that there was a violation, and that it was not justif iable under sect ion 1. Sop inka J . rounded off the majority of five Just ices who found a sect ion 15 violation, but a lso found that this violation was justified pursuant to sect ion 1. B e c a u s e Sop inka J . 's f inding in regards to sect ion 1 w a s adopted by the L a Forest and the three with him, ultimately, the exclusively opposi te-sex definition of spouse w a s upheld. In Egan, the dec is ion authored by L a Forest J . is the c learest example of a categorical approach in which two judicially imagined groups—the central norm and the 127 group to which the claimant 'be longs '—are compared against each other in order to determine whether or not discrimination exists. The first category, or group, posited by La Forest J . is a highly normative and ideological v is ion of the heterosexual family. He def ines the objective of the Old Age Security Act in reference to this group: [..] its ultimate raison d'etre..AS firmly anchored in the biological and socia l realities that heterosexual couples have the unique ability to procreate, that most chi ldren are the product of these relat ionships, and that they are general ly cared for and nurtured by those who live in that relationship. In this s e n s e , marr iage is by nature heterosexual . It would be possible to legally define marr iage to include homosexual coup les , but this would not change the biological and social realities that underl ie traditional mar r iage . 8 5 No ev idence is cited in support of his ' factual' conc lus ions. In this way, L a Forest J . centres a normative version of family which, by definit ion, resists cha l lenge from those with non-heteronormative sexual i t ies. A s Dianne Pothier observes : [The conclusions] of La Forest were prefaced by the following introduction: "Suff ice it to say that marr iage has from time immemorial been firmly grounded in our legal tradition, one that is itself a reflection of long standing phi losophical and religious traditions." The fundamental difficulty with Just ice La Forest 's analys is can be demonstrated by the fact that the just quoted sentence still rings true when only one word, "marriage," is changed : "Suff ice it to say the homophobia has from time immemorial been firmly grounded in out legal tradition, one that it itself a reflection of long standing phi losophical and religious traditions." The juxtaposit ion is meant to convey that the idea that traditional attitudes toward marriage have been highly relevant in fostering homophobia . In other words, the concept of re levance is apt to reinforce the anti-egalitarian sent iments that sect ion 15 w a s supposed to cha l l enge . 8 6 L a Forest J . ' s approach vividly demonstrates the ways in which a categor ical and group-based approach to equality d iscourse is, at the very least, highly amenab le to the obfuscat ion, rather than elucidation, of one of the primary sources of oppress ion: the unequal distribution of the power to define groups, manufacture difference and name categor ies. Th is power is precisely what he exerc ises in his d ismissa l of those non-128 heteronormative famil ies who do, in fact, 'occasional ly adopt or bring up chi ldren' as 'except ional and in no way [affecting] the general p ic ture. ' 8 7 Unlike La Forest J . , lacobucc i and Cory J J . attempt to avoid the centering of a normative model of family as the ideological fulcrum upon which compar ison is based : In this c a s e , a great deal of time was spent demonstrat ing the nature of the way, compass ionate , car ing relationship that very evidently existed between the appel lants. In pass ing, it is, I think, worth mentioning that this need not be dome in every case . It is not necessary that the ev idence demonstrate that a homosexual relationship bears all the features of an ideal heterosexual relationship for the relationship of many heterosexual coup les is somet imes far from ideal. The relat ionships between heterosexuals must vary as infinitely as of the personal i t ies of the individuals invo lved . 8 8 T h e s e sent iments reflect earl ier statements by L 'Heureux-Dube J . in Mossop in which she not only chal lenged the traditional two-parent heterosexual notion of 'family' as ideo log ica l 8 9 , but a lso went on to specif ical ly undermine the normative value unthinkingly ascr ibed to it: The reality is, as Didi Herman writes in "Are W e Fami ly? : Lesb ian Rights and W o m e n ' s Liberat ion" (1990), 28 Osgoode Hall L.J. 789 , at p. 802, that famil ies are "sites of contradiction". S o m e people find family life oppress ive, others seek support ive family relations but cannot find them. Whi le the family may provide emotionally satisfying exper iences, It may also be the site of brutal, violent and terrifying exper iences . However, despite the very real potential for oppress ion within the family, most people continue to bel ieve that the family a lso has the potential to be the site of our most important human connect ions, and that it is there intimate connect ions that offer the greatest possibil i t ies for individual fulf i lment. 9 0 Unlike in Mossop, in Egan L 'Heureux-Dube J . goes on to chal lenge another central aspect of the categorical reasoning employed by the Court in its equality/discrimination doctrine, that being the grounds-based approach. Al though this chal lenge was not adopted by any of the other Just ices of the Supreme Court of C a n a d a , because it relates to a central topic of this paper, I will quote it at length. S h e starts out by 129 reviewing prior statements made by the Supreme Court of C a n a d a about the e s s e n c e of discr iminat ion: I bel ieve that the essence of "discrimination" w a s largely captured by Mclntyre J . , speak ing for the majority of the Court in this point, in Andrews, supra, at p. 171: "It is c lear that the purpose of s.15 is to ensure equality in the formulation and appl icat ion of the law. The promotion of equality entai ls the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equal ly deserv ing of concern , respect and considerat ion." Equali ty, as that concept is enshr ined as a fundamental human right within s. 15 of the Charter, means nothing if it does not represent a commitment to recogniz ing each person's equal worth as a human being, regardless of individual di f ferences. Equali ty means that our society cannot tolerate legislative distinctions that treat certain people as second-c lass ci t izens, that demean them, that treat them as less capable for no good reason, or that otherwise offend fundamental human dignity. In a similar ve in , I refer to the words of Wi lson J . in McKinnev v. University of Guelph, [19901 3 S . C . R . 229 , at p. 387 (dissenting, but not on this point): "It is, I think, now clearly establ ished that what lies at the heart of s. 15(1) is the promise of equality in the s e n s e of f reedom from the burdens of stereotype and prejudice in all their subtle and ugly manifestat ions. However, the nature of discrimination is such that attitudes rather than laws or rules may be the source of d iscr iminat ion." 9 1 To summar ize , at the heart of s. 15 is the promotion of a society in which all are secure in the knowledge that they are recognized at law as equal human beings, equal ly capab le , and equal ly deserv ing. A person or group of persons has been discr iminated against within the meaning of s. 15 of the Charter when members of that group have been made to feel , by virtue of the impugned legislative distinction, that they are less capab le , or less worthy of recognition or value as human beings or as members of Canad ian society, equal ly deserv ing of concern , respect, and considerat ion. T h e s e are the core e lements of a definition of "discrimination" -- a definition that focuses on impact (i.e. discriminatory effect) rather than on constituent e lements (i.e. the grounds of the dist inct ion). 9 2 130 S h e then goes on to specif ical ly chal lenge the eff icacy of a g rounds-based approach as a tool for uncovering discrimination: [...] the current vehicle of choice for fulfilling the purposes of s. 15, the "grounds" approach, is incapable of giving full effect to this purpose. This approach inquires into whether the character ist ics of the ground are sufficient to constitute a bas is for discr iminat ion, rather than into the absence or presence of discriminatory effects themselves . W e must remember that the grounds in s. 15, enumerated and ana logous, are instruments for finding discrimination. They are a means to an end. By focusing almost entirely on the nature, content and context of the disputed ground, however, we have begun to approach it as an end , in and of itself. S u c h an approach, in effect, approaches s. 15 not by giving pr imacy to the word "discrimination", but rather by giving primacy to the nine enumerated grounds. In e s s e n c e , it def ines the precondit ions to when discrimination will be present exclusively by reference to qualit ies seen general ly to reside in those g rounds . 9 3 At this juncture, an important question must be asked . If the purpose of s. 15 is really to provide a broad guarantee of protection against discrimination in all its forms, then why does it matter if the basis for distinction is abstractly "analogous" to the enumerated categor ies? The answer , I think, is that it does not matter. A s this Cour t has frequently acknowledged, the e s s e n c e of discrimination is its impact, not its intention. The enumerated or ana logous nature of a given ground should not be a necessary precondit ion to a finding of discr iminat ion. If anything, a finding of discrimination is a precondit ion to the recognit ion of an analogous ground. The effect of the "enumerated of ana logous grounds" approach may be to narrow the ambit of s. 15, and to encourage too much analys is at the wrong level. W e will never address the problem of discrimination completely, or ferret it out in all its forms, if we cont inues to focus on abstract categor ies and general izat ions rather than on speci f ic effects. By looking at the grounds for the distinction instead of at the impact of the distinction on particular groups, we risk undertaking an analys is that is d is tanced and desens i t ized from real people 's real exper iences. To make matters worse , in defining the appropriate categor ies upon which f indings of discrimination may be b a s e d , w e risk relying on convent ions and stereotypes about individuals within these categories that, themselves, further entrench a discriminatory status quo. More often than not, d isadvantage ar ises from the way in which society treats particular individuals, rather than from any characterist ic inherent in those individuals. 131 For all of these reasons, I a m led inevitably to the conclus ion that a truly purposive approach to s. 15 must p lace "discrimination" first and foremost in the Court 's analys is . This is not to say that the essent ia l characterist ics of the nine enumerated grounds are irrelevant to our inquiry. They are, in fact, highly relevant. I turn now to a d iscuss ion of their important role in an approach that looks to groups rather than grounds, and discriminatory impact rather than discriminatory potent ia l . 9 4 Final ly, L 'Heureux-Dube J . proposes an alternative p rocess for determining whether or not discrimination is evident in a particular situation: In my view, for an individual to make out a violation of their rights under s. 15(1) of the Charter, he or she must demonstrate the following three things: 1. that there is a legislative distinction; 2. that this distinction results in a denial of one of the four equality rights on the bas is of the rights claimant 's membersh ip in an identifiable group; and , 3. that this distinction is "discriminatory" within the meaning of s. 15. The following remarks are devoted to elaborating upon the last criterion. A distinction is discriminatory within the meaning of s. 15 where it is capab le of either promoting or perpetuating the view that the individual adverse ly affected by this distinction is less capab le , or less worthy of recognit ion or value as a human being or as a member of Canad ian society, equal ly deserving of concern , respect, and considerat ion. This examinat ion should be undertaken from a subjective-objective perspect ive i.e. from the point of v iew of the reasonable person, d ispass ionate and fully appr ised of the c i rcumstances, possessed of similar attributes to, and under similar c i rcumstances as , the group of which the rights claimant is a member . The means by which courts may give principles express ion to this notion is perhaps best illustrated by a simple analogy. If a projectile were thrown against a soft surface, then it would leave a larger scar than if it were thrown against a resilient surface. In fact, the depth of the scar inflicted will general ly be a function of both the nature of the affected surface and the nature of the projectile used . In my view, assess ing discriminatory impact is, in principle, no different. In order for a court to determine from a subjective-objective perspect ive whether the impugned distinction will leave a non-trivial discriminatory "scar" in the group affected, it is instructive to cons ider two categor ies of factors: (1) the nature of the group adverse ly affected by the distinction and (2) the nature of the interest 132 adversely affected by the distinction. In my view, neither is completely meaningful without the o ther . 9 5 By abandoning a strictly grounds-based approach, L 'Heureux-Dube J . opens the door much more widely for the considerat ion of intersectional oppress ion . B y minimizing the need for a claimant to squeeze him or herself into one or more pre-defined categor ies, her approach reflects the reality that people do not start out in separate categor ies, which can only then be (re)incorporated by some convoluted system of over lapping grounds (as was proposed by Lamer C . J . in Mossop). Rather, L 'Heureux-Dube J . takes an approach reflecting the fact that people do not fit into watertight compartments in the first p lace: To expand briefly upon the example of domest ic workers, under traditional adverse effects doctrine, what percentage of the group would have to have been women in order to s u c c e e d in a sex -based discrimination c la im? Fifty percent? Ninety percent? A s this Court found in S y m e s v. C a n a d a [1993] 4 S . C . R . 695, it is difficult to draw a principled distinction a long such l ines. I bel ieve that it is both eas ier and more intellectually honest to examine the effect of the distinction on the group affected. In this c a s e , that group would be domest ic workers, and the only decis ion is: does the distinction discriminate against domest ic workers. A s I noted in Canada (Attorney General) v. M o s s o p , [19931 1 S . C . R . 554 at p. 645, categor ies of discrimination cannot be reduced to watertight compartments, but rather will often overlap in significant measure . W h e n assess i ng the socia l context of the impugned distinction, it is therefore of re levance that a significant majority of domest ic workers are immigrant w o m e n , a subgroup that has historically been both exploited and marginal ized in our society. Awa reness of, and sensitivity to, the realities of those exper iencing the distinction is an important task that judges must undertake when evaluat ing the impact of the distinction of members of the affected group. Discrimination cannot be fully appreciated or addressed unless courts' analysis focuses directly on the issue of whether these workers are victims of discrimination, rather than becoming distracted by anci l lary issue such as "grounds", be they enumerated or a n a l o g o u s . 9 6 (Emphas is added) However , as this excerpt makes clear, it is c lear that the new process that she proposes still emphas i zes the claimant's membership within a particular group, which in turn is 133 based upon a particular, prioritized distinction. My point being, that no matter how narrowly, or broadly, the group is def ined, it remains a form of categorical thinking. A s such , it inherently homogen izes individuals, both inside and outside of the category. Diversity within that group can only be comprehended by the addition of sub-dist inctions, resulting in sub-groups. Thus in the example above, domest ic workers only became a group because they could be comprehended as a sub-group of women who also faced the added sub-distinction of immigration status. Therefore, L 'Heureux-Dube J . potentially reincorporates many of the problems of 'additive analys is ' d i scussed above: the perspect ive of relatively privi leged women is inherently prioritized because without the addit ion of other oppress ions—race , c lass , ability e tc .—you are left with a white, middle-c lass able-bodied women. For example , under L 'Heureux-Dube J . ' s revised p rocess , S y m e s could still be understood as facing a (purely) sex -based distinction in relation to bus inessmen. B e c a u s e she does not personify any additional sub-d is t inct ions—such as being non-white, not middle c lass or d isab led—she could still demand that the Court ignore these perspect ives despite the fact that the vast majority of women are not relatively privileged sel f -employed women . To paraphrase L 'Heureux-Dube J . ' s example o f ' domes t i c workers ' in Egan quoted above: 'In this case , that group would be sel f -employed w o m e n , and the only decis ion is: does the distinction discr iminate against sel f -employed w o m e n . ' 9 7 Ironically, by de-emphas iz ing the grounds of discr iminat ion, L 'Heureux-Dube J . in one very signif icant way furthers the ability of c la imants—many of whom will likely be relatively privi leged given the costs of litigation—to demand that the Court consider their group's perspect ive, to the exclusion of all others who may face 'other d iscr iminat ion. ' 9 8 134 Returning to the dec is ions of L 'Heureux-Dube J . and Cory and lacobucc i J J . in Egan, both dec is ions construct a category of 'sexual orientation' that is relatively c lass privi leged. For example , L 'Heureux-Dube J . says this: W e can further inform our understanding of the purpose of s. 15 by recogniz ing what it is not. The Charter is a document of civil, political and legal rights. It is not a charter of economic rights. Th is is not to say, however, that economic prejudices or benefits are irrelevant to determinat ions under s. 15 of the Charter. Quite the contrary. Economic benefits or prejudices are relevant to s. 15, but are more accurately regarded as symptomatic of the types of distinctions that are at the heart ofs. 15: those that offend inherent human dignity." (Emphas is added.) I take this to be an acknowledgement of the systemic manifestation of poverty in groups such as w o m e n , people of colour and the d isab led. Yet , L 'Heureux-Dube J . limits her awareness of this aspect of discrimination to the hypothetical. Thus , in Symes, for example , she did not consider the feminization of poverty as it would interact with the regressive taxation benefit to which S y m e s c la imed right. Nor did she cons ider that perhaps it would be women or colour and d isabled women who might disproportionately be unable to a c c e s s this benefit, and would as a consequence , end up funding the chi ld-care of women relatively more privileged than themselves. Th is f lawed reasoning is, in my opinion, repeated in Egan. E g a n and his partner have obviously dec ided that they can afford to be recognized as a spousa l unit, even though it may result in a dec rease of their combined income. A s such , they are in a position to benefit from the cultural purchase that comes with being recognized as a same-sex couple. The Court , consequent ly , is ab le to adopt the perspect ive of the claimants, while minimizing those of others: To summar ize , tangible economic c o n s e q u e n c e s are but one manifestation of the more intangible and invidious harms flowing from discr iminat ion, which the Charter seeks to root out . . . 1 0 0 135 It should be noted, finally, that neither s. 1 nor s. 15 cal ls for a ba lance sheet approach to discrimination (i.e. summing up all direct and incidental economic benefits to a particular distinction and compar ing them against the sum of the economic prejudices, in order to s e e if there is a net economic prejudice). Such an approach to discrimination loses the forest for the t rees . . . 1 0 1 For the reasons he sets out, I agree with Cory J . that it is c lear that homosexua l couples are den ied the equal benefit of the law in the basis of the legislative distinction in s. 2 of the Old Age Security Act, which def ines coup les as relationships of "opposite-sex". That E g a n and Nesbit are able to c la im higher benefits as separate individuals d o e s not alter the fact that they have been denied the benefits, both tangible and intangible, of filing for old age benefits as a couple. It would take too narrow a view of the phrase "benefit of the law" to define it strictly in terms of economic interests. Official state recognition of the legitimacy and acceptance in society of a particular type of status or relationship may be of greater value and importance to those affected than any pecuniary gain flowing from that recognition.™2 (Emphas is added) Then aga in , it may not be of greater importance. Indeed, the two may be inversely related. The error with this reasoning is that it a s s u m e s that there is one particular type or status of same-sex relationship. For example , the cultural purchase that may accrue to E g a n and his partner Nesbit by virtue of the recognit ion of their relationship may have an inverse result for a person in a same-sex couple who is col lect ing soc ia l ass is tance. In the current socio-poli t ical cl imate, the cultural labels which are likely to attach to this 'type' of relationship, once ' recognized ' (or more accurately 'd iscovered') are more likely to be 'deadbeat ' and 'fraud'. Therefore, it might a lso be important to ask how many same-sex coup les will, for the first t ime, feel compel led to go back into the closet about their relat ionship—to prevent any public recognit ion of it, to hide from the prying eyes of their socia l ass is tance workers—as a result of the expans ion of the definition of ' spouse ' . The privileging of a c lass less perspect ive is even more patent in the decis ion of Cory and lacobucc i J J who write: 136 The appel lants are not al leging that the discrimination is unique or particular to their personal situation but, rather, that the Act discr iminates against all homosexua l common law coup les who are living in a state which is comparab le to heterosexual common law coup les . It fol lows that the appel lants must demonstrate that homosexua l coup les in general are denied equal benefit of the law, not that they themse lves are suffering a particular or unique denial of a benefit. The precise mathematical calculat ion of benefits which could be paid to coup les either as individuals or as a couple is of little ass is tance as it will inevitably vary from case to c a s e depending upon the particular economic c i rcumstances of each couple and each member of that couple. Rather, a reading of the legislation reveals that it denies the spousa l a l lowance to all homosexua l common law couples and thus, it is establ ished that the Act has denied equal benefit of the l a w . 1 0 3 Cory J . could have simply acknowledged that from the perspect ive of Egan and Nesbit, and those in similar situations, the economic advantage of the closet is outweighed by the costs of enforced invisibility. However, because of the perceived need to connect all burdens and privi leges to one distinction—in this c a s e , 'sexual or ientat ion'—he explicitly and incorrectly homogen izes the exper iences of all same-sex coup les . The potentially negative implications of this approach for people who exper ience intersectional oppress ion , with c lass aspects , may not be as apparent in the context of Egan because that case was , and largely remains f ramed as one involving simply the extension of a benefit. However it is spec ious to cons ider the implications of the extension of spousa l status to same-sex couples in relation to only one benefit given the vast array of legal institutions and sys tems organized around that status. Most importantly, contrary to the assumpt ion underlying the following statement of Cory J . in Egan, the status of 'spousal unit' is not a lways voluntarily chosen : To force homosexua l common law coup les to c la im federal and provincial support a s individuals because they would get more money would be to imprison them in their privi leges. Heterosexual coup les might a lso be better off f inancially if they c la imed government subs id ies as individuals rather than as a couple. Yet , cohabit ing heterosexual persons have the right to make a cho ice as to whether they wish to be publicly recognized as a common law couple. Homosexua l couples, on the other hand, are 137 denied the opportunity because of the definition of "spouse" set out in the chal lenged Act. The public recognition and acceptance of homosexua ls as a couple may be of t remendous importance to them and to the society in which they live. To deny homosexual couples the right to make that choice depr ives them of the equal benefit of the l a w . 1 0 4 (Emphas is added.) Aga in , as argued above, the nature of the 'public recognit ion', and most certainly its 'acceptance ' will vary depending upon 'other' factors which determine a person 's position within society. The combinat ion of these factors, not to mention the type of s a m e - s e x relat ionship at issue, may ultimately result in the compound ing of certain axes of oppress ion. The 'benefit' a ssumed by Cory J . , and others, is therefore more accurately portrayed as a complex calculus, which may have multivalent results. A s I d i scussed in the last chapter, amidst this complexity there nevertheless appears to be discernible patterns reflecting who is more likely to benefit from the acquisit ion of the status of ' spousa l unit' and who is not. Cons ide r the incorporation of same-sex coup les—by designat ion, not voluntary adoption—into the income tax system as ' spousa l ' units. Jus t as the regressive nature of the Income Tax Act would have resulted in relatively privi leged women having the costs of their full-time nannies being supplemented by those relatively less privileged (had S y m e s been successfu l ) so too the incorporation of s a m e - s e x coup les will result in those least able to absorb it, facing a higher tax b u r d e n . 1 0 5 Whi le those couples who are relatively poor will face an overal l increase in tax burden, s a m e - s e x coup les in which one relatively wealthy spouse , supports another who has a very low or no income, will benefit from a dec reased tax burden. Consequent ly , because of their relative wealth, 'gay men will, on average, benefit more than lesbians by being included as spouses under the Act.':061 would add that people of colour and d isabled people would a lso disproport ionately bear an addit ional tax burden for ana logous reasons . 138 Indeed, Cla i re Young has argued that in general , the incorporation of same-sex couples into the income tax system as spousal units will result in a net revenue increase for the government of C a n a d a : Indeed there is one particularly compel l ing reason for the government to cons ider redefining "spouse" in the Act to include the partners of lesbians and gay men. S u c h a change would likely result in a signif icant revenue gain for Revenue C a n a d a . W h e n the definition of spouse w a s amended in 1993 to include "common law" spouses the Department of F inance est imated that the change would result in increased tax revenues over a 5 year period of 9.85 billion. The bulk of the increased revenue was attributable to the rules that require the combining of spouses income for the purpose of the refundable G S T tax credit and the refundable child tax benefit. This resulted in the overall reduction in the value of the tax credits owing to t axpaye rs . 1 0 7 Ironically, in Rosenberg v. Canada (Attorney General)108, which was a success fu l chal lenge to a particular opposi te-sex definition of spouse in the Income Tax Act, the government of C a n a d a found themselves using the Statist ics C a n a d a 1990 Survey of C o n s u m e r F inances 'to demonstrate that lesb ians and gays had more to lose than to gain by winning the Charter cha l lenge . . . . ' 1 0 9 O n e of the important points which this example highlights, is that 'a Charter victory for one litigant who cha l lenges the tax system may reinforce the oppress ion of others subject to the s a m e sys tem because of the inherent b iases of the system i tsel f . ' 1 1 0 A s I shall d i scuss shortly, in my opinion, the Court has yet to deve lop a systemic approach to these kinds of conflicts of interests. G iven the multivalent implications of being recognized as a ' spouse ' , it is very important to interrogate how much choice is involved in relation to 'acquisi t ion' of spousa l status. Fo r example , in relation to the Income Tax Act C la i re Y o u n g has pointed out that: Unl ike the granting of employment benefits, the Act is not about the exerc ise of opt ions. The income tax return under the Act requires an individual to state the name of her spouse and to certify that the information on the return is correct. The Act makes it an offence to make a 139 fa lse or decept ive statement in a return. Therefore lesbians and gay men will, if they are cons idered to be s p o u s e s under the Act, have to declare the name of their par tner . ' 1 1 1 In the context of public ass is tance, mentioned above, the level of personal choice involved is arguably even less. For example in Ontario, as of March 1, 2000 appl icants or recipients of soc ia l ass is tance who reside with anyone other than certain re la t i ves 1 1 2 'must provide the Director with information so that the Director can determine if the co-resident meets the definition of a spouse or same-sex partner'^3 and consequent ly part of the s a m e 'benefit unit.' It is the total income of the benefit unit that is used to determine both eligibility for and the level of social ass is tance to be paid to appl icants. The extension of spousa l status to same-sex coup les is, therefore, consistent with (as opposed to ' caused by') the trend to force a growing range of people to rely upon another individual for support when they cannot fully provide for their own bas ic needs. The ability to choose to rely upon another individual for support, or to form a relationship of economic interdependence is, in this current socio-pol i t ical cl imate on the decl ine. This is related to the continual c law back of 'public' soc ia l benefits in favour of a more privatized model of support of those who cannot provide for their own and their dependants bas ic needs without ass is tance. Margot Young gave the following general overview of the socio-poli t ical cl imate: The first [noteworthy trend] is the course of evolut ion of the Canad ian welfare state, in particular, the current ascendance of neo-l iberal ism as the orthodoxy of state restructuring. A d v o c a c y of restricted state involvement in social and economic spheres is paired with an enhanced emphas is on individualism and the role of private structures - the market, community and family - in providing support serv ices and distribution of resources previously del ivered by the state. The result has been government retrenchment and the reduction of soc ia l program funding at both the federal and the provincial l e v e l . 1 1 4 140 This ascend ing ideology of the privatization of socia l costs is a lso apparent in the decis ion of the Sup reme Court of C a n a d a in M M . H . 1 1 5 [hereinafter M. v. H.], which is the last dec is ion related to 'sexual orientation' discrimination that I will d i scuss in detail in this p a p e r . 1 1 6 M. v. H. w a s a chal lenge to the exclusively opposi te-sex definition of ' spouse ' in the post-breakdown spousa l support provisions of Ontar io 's family law. Essent ia l ly , a lesbian c la imed that these provisions discriminated against her on the basis of 'sexual orientation' insofar as they denied her the right to apply for an order for support against her former partner, s imply because she was of the same-sex as that partner. Al l but one member of the Sup reme Court of C a n a d a — n a m e l y , Gonth ier J .—agreed with the claimant. A l though it would be incorrect to suggest that the majority's dec is ion w a s based on the fact that an extension of the definition of ' spouse ' in this context would save the money for the government, it w a s clearly a factor they cons idered . A s Andree Lajoie, writing with two others, wryly observed: [...] this recognit ion of equality and the consequent prohibition of discrimination against gays and lesbians have remained at the level of the abstract affirmation of principle or have implied little or no expenditure of public money: including sexual orientation as a prohibited ground of discrimination in Haig and Egan and reading it in in Vriend, or including s a m e - s e x coup les in the definition of spouses , but only for a l imony purposes in M. v. H. It has never entailed the appl icat ion of that principle when conflicting dominant va lues would suffer in consequence : a formal concept ion of equality, coupled with respect for traditional family va lues and deference toward the legislator have kept the core-majority (Lamer, M a forest, Sop inka and Major) from recognizing gay and lesbian famil ies and coup les and granting them socia l benefits in Mossop and Egan, a posit ion that only a new majority on the Court could overpass in M. v. H. and then only after reiterating 21 times in as many paragraphs that it favored reducing public money expenditure and four t imes that it had no impact on the interests of heterosexual coup les and fami l ies . . . 1 1 7 (Emphas is added.) 141 In terms of c lass analys is , the most obviously problematic aspect of the privatization of the socia l costs of individuals in need, is that not everyone has a spouse , former spouse , or any person for that matter, who is capable, far less wil l ing, to provide for their bas ic needs . Moreover , it is trite that given the history of abuse within 'spousa l ' relat ionships, s o m e women in particular may, for very good reason, not want to turn to another individual for support. And sadly, this risk of abuse , and more importantly, the ability to e s c a p e abuse is itself related to the f inancial means of the victim. In M. v. H. therefore, the court once again adopts a perspect ive which, in several ways , tacitly prioritizes the perspect ive of those who are relatively c lass-pr iv i leged while conversely ignoring the perspect ives of those who are c lass -oppressed . And unfortunately, given the systemic aspects of Canad ian poverty, those people who are poor are a lso likely to exper ience gender, race and oppress ion related to disability, among others. However , in terms of the Court 's approach to the potential for 'intra-group' conflicts of interest, the most striking aspect of the M. v. H. dec is ion is, in my opinion, the following statement of from the judgement of Co ry and lacobucc i J J . , writing for six others: I acknowledge that s o m e individuals in s a m e - s e x relat ionships, including H. herself, have expressed reservations about being treated as " spouses " within the family law sys tem (see, e.g. , O L R C Report on the Rights and Responsibilities of Cohabitants Under the Family Law Act, supra; B. C o s s m a n and B. Ryder , Gay, Lesbian and Unmarried Heterosexual Couples and the Family Law Act: Accommodating a Diversity of Family Forms (1993), a Resea rch Pape r prepared for the O L R C , at pp. 135-39). However , these dif ferences of opinion within the s a m e constitutionally relevant group do not constitute a reason to defer to the cho ices of the legislature. Indeed, as noted by E G A L E , given that the members of equal i ty-seeking groups are bound to differ to s o m e extent in their politics, beliefs and opinions, it is unlikely that any s. 15 c la ims would survive s. 1 scrutiny if unanimity with respect to the desired remedy were required before discrimination could be r e d r e s s e d . 1 1 8 142 With all due respect, this statement succinct ly captures the crudity of the Supreme Court of C a n a d a ' s approach to the complexity of people 's identities and the process of constitutional litigation. This analysis ignores the reality that people who have an aspect of their identities in common, do not thereby share one common identity. In M. v. H. the Court held firm in its rel iance upon blunt categor ies of people 'within the same constitutionally relevant g roup . ' 1 1 9 The Court did not even attempt to deal with the reality that the attribution of the rights and responsibilities of ' spousa l ' status to same-sex coup les carr ies with it the potential to entrench 'other' oppress ive charges inherent to that status and the institutions which incorporate it. Instead, it d i smissed the shared interests of many queer women , people of colour, poor people and people whose relationships are not patterned upon the 'spousa l ' ideal , as mere di f ferences in 'polit ics, beliefs and op in i ons . ' 1 2 0 In my opinion, there is no escap ing the conclus ion that this statement reinforces an essential ist understanding o f ' sexua l orientation' discr iminat ion, one which clearly prioritizes the perspect ive of those who would not exper ience oppress ion but for being non-heterosexual . Never the less, it is a lso fair to conc lude that the majority in M. v. H. did not set out to privilege the perspect ive of those s a m e - s e x coup les who did not exper ience intersectional oppress ion. This holds true for many of the other dec is ions that I have crit iqued in this paper. Fundamental ly , M. v. H. was f ramed as the simple el imination of a distinction which prevented a group of peop le—namely those in s a m e - s e x relat ionships—from being included in the category of ' spouse ' . A s such , it could not comprehend a chal lenge to the category itself. It was not really about the benefits of the category, the oppress ions that it may or may not reinforce, or even , about the nature of those who would then be 143 included within that category. It was simply about whether the same-sex/oppos i te -sex distinction was discriminatory, no more, no less. That the case was framed in this way is not surprising. A s Car l Stychin has observed: For the white, able-bodied gay man, essential ist arguments p o s s e s s t remendous power if they become widely accep ted . If his sexual orientation is considered "irrelevant" and an "accident of birth", then the gay man can take on the trappings of male gender p r iv i lege. 1 2 1 Moreover , it is not surprising that the Court d ismissed out of hand the vo ices of those who insisted that the Court look at a much broader, much more complex set of quest ions. A s Kath leen J o n e s put it: [...] having an official voice is.. .a function of what kind of vo ice the system is willing to hear. Those who speak in 'different' vo ices — that is, different from what has been normal ized as the vo ice of authority — cannot become the official spokespeop le . . .because their g rammar and logic are discredited as particularistic, vernacular, or idiomatic. Official vo ices speak in the language of universal ized d iscourse and engage with the rational speech of rational political actors. Other vo ices ramble. O n e of the primary reasons, in my opinion, that the sys tem or p rocess of Charter litigation s e e m s unable to hear the vo ices of those who exper ience intersectional oppress ion is that invariably, that kind of oppress ion is fundamental ly inter-connected with c lass oppress ion. A n d the complexity of c lass oppress ion is in all l ikel ihood, simply beyond the reach of the Charter. Bakan summar ised the situation in this way: Th is exc lus ive focus on the act ions of two actors in relation to one another (whether individual/state, individual/private organizat ion, or individual/individual) leaves out the compl icated and ongoing p rocesses through which relations among multiple actors and act ions combine to construct people 's actual life condit ions and shape their cho ices , capaci t ies, identities, and desi res. Equality rights c la ims are thus unable to get at the causes of inequality and other socia l ills; they deal only with discrete symptoms, leaving underlying structures untouched. That is why, as Russe l l (1994) observes, 'the Charter has done little to alter power relations, redistribute wealth, or promote socia l welfare within the Canad ian version of welfare capital ism.' . . . 144 To take one example , the economic d imens ions of socia l inequality, and poverty in particular, are beyond the reach of the Charter, and this would be true even were its rights interpreted to impose posit ive obligations on both governmental and private actors. Poverty and economic inequality are rooted in intersecting relations of c lass , gender and race, not in particular acts of government or private actors... 3 (References omitted.) To this point I have identified many of the obstac les within Sup reme Court of C a n a d a jur isprudence about sect ion 15 preventing the recognition and redress of intersectional oppress ion. In the conclusion to this chapter I will explore (as opposed to answer in any comprehens ive sense) whether the system of sect ion 15 Charter litigation is able to hear those who exper ience intersectional oppress ion? Ultimately, I will argue that although sect ion 15 does have some potential to serve the needs of those who exper ience intersectional oppress ion, this potential is severe ly limited by severa l core aspects of equality d iscourse itself. In summary, in this sect ion of this chapter I have attempted to identify the ways in which the Sup reme Court of C a n a d a has reinforced essential ist models in dec is ions about the validity of an exclusively opposi te-sex definition of ' spouse ' . Those members of the Court who did not find this distinction discriminatory clearly reinforced a model of 'family' that normal izes a heterosexist and illusory vers ion of Canad ian famil ies. On the other hand, those members of the Court who found the definition discriminatory, tended to reinforce a model of same-sex spouse which was almost completely devoid of any considerat ion of the diversity of same-sex relationships and the people in them. In so doing, they tacitly approved an approach to these types of c a s e s which prioritized the perspect ive of those who do not exper ience discrimination 'but for' their sexual orientation. 145 CONCLUSION: THE POTENTIAL USES OF 'EQUALITY' VS. 'JUSTICE' TO REDRESS INTERSECTIONAL OPPRESSION A s I have tried to demonstrate throughout this chapter, there are significant obstac les preventing people who face intersectional discrimination from being able to effectively utilize sect ion 15 of the Charter to redress the oppress ion they face. Al though, Charter equality d iscourse has been appl ied to recognize that multiple grounds of discrimination may overlap in a given situation to make a distinction discriminatory, the perspect ives of those people who exper ience intersectional oppress ion have been consistently marginal ized. To illustrate the former type of appl icat ion, cons ider the decis ion of the Nova Scot ia Court of Appea l in the case of Dartmouth/Halifax (County) Regional Housing Authority v. Sparks124 [hereinafter 'Sparks']. In Sparks the Court considered the validity of statutory provisions which denied tenants of public housing who had been in possess ion for five years or more of 'security of tenor' in contrast to tenants of private residential rental units. A s a consequence , tenants in public housing could be evicted on shorter notice than tenants in private housing. Ear ly in its decis ion the Court noted that the ' respondents admitted that women , b lacks and socia l ass is tance recipients form a disproport ionately large percentage of tenants in public housing and on the waiting list for public h o u s i n g . ' 1 2 5 B a s e d upon this, the Court found that: [...] the impugned provisions amount to discrimination on the basis of race, sex and income; it is not necessary in this c a s e to show adverse effect discrimination as argued by the appellant. A n adverse impact analys is has been appl ied in c a s e s involving legislation which is neutral on its face. Sect ions 10(8)(d) and 25(2) are not neutral; they explicitly deny benefits to a certain group of the population (public housing tenants) while extending them to others. The fact that the legislation descr ibes the group (public housing tenants) by reference to a factor which is not a listed ground in s. 15(1) does not avail the respondent. . .argues that the legislation is not "based on" such characterist ics.. . 146 The phrase "based on grounds relating to personal character ist ics" as used in the Andrews case cannot be taken to mean that the personal character ist ics must be explicit on the face of the legislat ion, nor that the legislation must be manifestly directed at such character ist ics. Such an interpretation would fly in the face of the ef fects-based approach to the Charter, espoused by the Supreme Court of C a n a d a . 1 2 6 The Court then went on to find that the effects focussed scrutiny required by section 15 demanded that courts: [...] take account not merely of the manner in which the group is descr ibed in the legislation, in this case as "public housing tenants." In addition regard must be had to the characterist ics shared by the persons compr is ing the g r o u p . 1 2 7 In so reasoning, the Court effectively moved the focus away from the proper definition of "the" group of people, to an exploration of the community of interests shared by these groups. Therefore, in this c a s e , the Court conc luded that: A s a general proposit ion persons who qualify for publ ic housing are the economical ly d isadvantaged and are so d isadvantaged because of their age and correspondingly low incomes (seniors) or famil ies with low incomes, a majority of whom are d isadvantaged because of they are single female parents on socia l ass is tance, many of w h o m are black. The public housing tenants group as a whole is historically d isadvantaged as a result of the combined effect of several personal character ist ics listed in s. 15(1). A s a result, they are a group analogous to those persons or groups specif ical ly referred to by the characterist ics set out in s. 15(1 )... 1 2 8 The recognit ion of communit ies of interests (or "shared characterist ics") in Sparks, is a vitally important first step towards an effective treatment of intersectional oppress ion. Whether the distinction d iscussed is assoc ia ted with an 'adverse impact' (the 'sex' related inequality identified in the Symes' dissent) or is patent in a legislative distinction (the 'oppos i te-sex/same-sex ' distinction in M. v. H.), the Court tends to d ismiss what it has descr ibed as conflicts within the ' same constitutionally relevant group. ' However, in my opinion the Sparks dec is ion provides a good foundation upon which the Court can 147 develop an equality d iscourse which can cope with (rather than simply d ismiss) the complexi t ies of oppress ion. The Court has erected a number of obstac les that purport to excuse it from having to deal with what it usual ly character izes as a conflict within a group of people: • it emphas i zes the centrality of a single 'ground' of discr iminat ion; • this emphas is in turn results in the compar ison of two artificially homogen ized groups; • the adversar ia l litigation process encourages relatively privi leged claimants to demand that the Court cons ider their (pure) legal perspect ive to the exclusion of the multi-faceted identities of real people; and finally, • the complexity of the sys tems under considerat ion, and the multivalent implications of Court ordered remedies, are both d ismissed as outside of the Court 's limited role, and comprehens ion. In c la ims for s imple inclusion within legal systems which contain and reinforce systemic oppress ion related to race, gender, ability and c lass , all of these factors combine to result in remedies which offer limited benefit, if any, for those who exper ience intersectional oppress ion. It may be that the Court simply cannot do any differently because of the inherent limitations of legal equality d iscourse. A s Nitya Iyer expla ins, the simplicity of the legal d iscourse of equality comes at a price: The virtue of its categorical approach is that it a l lows s o m e people to feel as if Canad ian society is becoming more egali tarian by presenting oversimpli f ied depict ions of socia l relations as confl icts for judges to resolve. In this way, law ach ieves legal equality whi le preserving socia l inequality. Rea l change requires us to engage directly, creatively, and politically in concept ions of, and struggles for, soc ia l j u s t i ce . 1 2 9 And as R a d h a Jhappan expla ins, this process of oversimplif ication and compar ison in legal equality necessar i ly results in essent ia l ized subjects and therefore, an incomprehension of intersectional analys is and complex socia l posit ions: S u c h essent ia l ism may be unavoidable in constitutional terms: sect ion 15 of the Charter, for example, is structured in such a way as to require c la imants to identify themselves by a characterist ic that is implicitly 148 contrasted to that of the dominant "advantaged" group (such as race, national or ethnic origin, colour, religion, sex , age, or mental or physical disability). Equal i ty means a lways having to say who you are equal to, a lways compar ing one group against another, almost invariably on one axis, and , for this reason, it will not let c laimants out of the similarly situated, l ikes al ike, sameness/d i f ference traps, regardless of the new language used. Sameness/d i f fe rence is a function of essent ia l ism and v ice versa . 3 0 [...] the equality frame is simply too narrow to contain the complex intersectional analys is because it is by nature comparat ive (one group compared against another), essential ist, and , as I shal l argue presently, impossib le. W h e n faced with a conflict between those who exper ience discrimination related to one ground and who claim simple inclusion (which is easi ly categor ized and processed by sect ion 15 equality d iscourse) versus those who exper ience intersectional discrimination related to systemic oppress ion , the Court errs on the side of that which is easi ly translated into a legal a lgebra. Never the less, the Supreme Court of C a n a d a s e e m s to have begun a dia logue about the appropriate process for deal ing with conflicts of interests between and among historically d isadvantaged groups. In the decis ion of Corbiere v. Canada (Minister of Indian and Northern Affairs)™2 [hereinafter 'Corbiere'], the Court cons idered whether a law that denied members of Indian bands who lived off-reserve the right to vote in their Bands ' elect ions constituted discrimination contrary to sect ion 15 of the Charter. It was c lear that some members of Indian Bands , particularly those that l ived on-reserve, objected to the extension of voting rights to those who did not. Al though two decis ions were written, the Court unanimously held that the law w a s discriminatory and could not be justified by sect ion 1 of the Charter. True to form, in the majority decis ion written by McLach l in and Bas ta rache J J . and concurred with by three others the Court was only able to comprehend the conflict after squeez ing the facts of the case through a convoluted analys is of ' "embedded" ana logous grounds' : [...] we note that the analogous ground of off-reserve status or Aboriginal i ty-residence is limited to a subset of the Canad ian populat ion, while s. 15 is directed to everyone. In our view, this is no impediment to its inclusion as an analogous ground under s. 15. Its demograph ic limitation is no different, for example , from pregnancy, which is a distinct, but fundamental ly interrelated form of discrimination from gender. " E m b e d d e d " analogous grounds may be necessary to permit meaningful considerat ion of intra-group d iscr iminat ion . 1 3 3 Like McLach l in and Bastarache J J . , L 'Heureux-Dube J . writing for three others ultimately conc luded that the ana logous ground in this c a s e w a s 'off-reserve band member s ta tus . ' 1 3 4 However , unlike McLach l in and Bas ta rache J J . , she adopted a slightly more flexible, and therefore, in my opinion, more sophist icated approach to the nature of sect ion 15 'grounds': I should note that if indicia of an ana logous ground are not present in genera l , or among a certain group in Canad ian society, they may nevertheless be present in another socia l or legislative context, within a different group in Canad ian society, or in a given geograph ic area. . .The second stage [of determining whether the treatment is related to an ana logous ground, and how it should be defined] must therefore be flexible enough to adapt to stereotyping, prejudice, or denia ls of human dignity and worth that might occur in speci f ic ways for speci f ic groups of people, to recognize that personal characterist ics may over lap or intersect (such as race, band membersh ip , and place of res idence in this case) , and to reflect changing socia l phenomena or new or different forms of stereotyping or p re jud ice . 1 3 5 The most problematic aspect of the majority decis ion s tems from its rel iance upon the compar ison of two relatively d isadvantaged groups. I would argue that the Court could have produced a more social ly sensit ive analys is if it had focussed more on an analys is of the ways that the interests of on - and off-reserve natives not only diverge, but a lso the ways in which they converge. Suc h an analys is might look something like this: 150 The right of natives who live on-reserve to vote in band elect ions reflects their right to govern themselves, at least to a degree. By contrast, one of the primary ways the autonomy of native people has been thwarted in the past was through policing of their res idence, whether on - or off-reserve. The law in question in this c a s e , frustrates the dignity and autonomy of off-reserve natives in a manner that reflects the historically discriminatory treatment meted out to non-natives as compared to non-native Canad ians . One of advantages of this type of analys is is that the dif ferences among native people can be employed in an effort to better appreciate, and hopefully chal lenge, the systemic oppress ion faced general ly by native people. Instead, the Court adopted an approach in which the general oppress ion became secondary to an analys is of whether those who lived off-reserve faced discrimination in relation to those who did not. The majority of the Court essent ial ly traced the source of the discrimination to a sub-group of aboriginal people, namely those who live on-reserve: The conclus ion that discrimination exists at the third stage of the Law test does not depend on the composit ion of the off-reserve band members group, its relative homogeneity or the particular historical discrimination it may have suffered. It is the present situation of the group relative to that of the comparator group, on-reserve band members, that is relevant...It is accepted that off-reserve band members are the object of discrimination and constitute an underprivi leged group... [however e]ven if all band members living off-reserve had voluntarily chosen this way of life and were not subject to discrimination in the broader Canad ian society, they would still have the same cause of act ion. They would still suffer a detriment by being denied full participation in the affairs of the bands to which they would continue to belong while the band counci ls are able to affect their in terests . . . 1 3 6 (Emphas is added.) Al though there is clearly some conflict of interest between the two groups, surely it is ludicrous to ultimately trace the source of the oppress ion to the relative advantage of a sub-group of a larger group, both of which have been historically d isadvantaged. Therefore, when legislation impacts on var ious groups, particularly is those groups are d isadvantaged, the subjective-objective perspect ive will take into account the particular exper iences and needs of all of those g r o u p s . 1 3 7 151 W h e n analys ing a claim that involves possibly conflicting interests of minority groups, one must be especial ly sensit ive to their realities and exper iences, and to their va lues, history, and identity. Th is is inherent in the nature of a subjective-objective analys is , s ince a court is required to cons ider the perspect ive of someone p o s s e s s e d of similar characterist ics to the claimant... B e c a u s e of the groups involved, the Court must a lso be attentive to the fact that there may be unique d isadvantages or c i rcumstances facing on-reserve band members . However, no ev idence has been presented that would suggest that the legislation, in purpose or effect, amel iorates the position of band members living on-reserve, and therefore I find it unnecessary to consider the third contextual factor outl ined in L a w . 1 3 8 Unlike McLach l in and Bastarache J J . , L 'Heureux-Dube J . arr ives at the conclusion that the treatment is discriminatory through a v igorous incorporation of the historical and current context of aboriginal people within Canad ian society, and the types of oppress ion which they have faced: This history shows that Aboriginal policy, in the past, often led to the denial of status and the sever ing of connect ions between band members and the band. It helps show why the interest in feeling and maintaining a s e n s e of belonging to the band free from barriers imposed by Par l iament is an important one for all band members , and especia l ly for those who constitute a significant portion of the group affected, who have been directly affected by these pol icies and are now living away from reserves, in part, because of them. Al l these facts emphas ize the importance, for band members living off-reserve, of having their vo ices included when band leadership is chosen through a process of common suffrage as set out in the legislation. They show why the interest in s. 77(1) is a fundamental one , and why the denial of voting rights in this context has ser ious c o n s e q u e n c e s from the perspect ive of those affected. They show why there is not only economic , but a lso important societal s igni f icance to the interests affected by the differential treatment contained in s. 77(1): Law, supra, at para. 7 4 . 1 3 9 Ultimately, however, L 'Heureux-Dube J . m isses the point that 'compet ing interests' between groups can be indicative of a larger sys tem of oppress ion : Even when the interests of var ious d isadvantaged groups are affected, s. 15(1) mandates that government dec is ions must be made in a manner 152 that respects the dignity of all of them, recogniz ing all as equal ly capable , deserv ing, and worthy of recognit ion. The fact that var ious minorities or vulnerable groups may have compet ing interests cannot a lone constitute a justification for treating any one of them in a substant ively unequal manner, not can it relieve the government of its burden to justify a violation of a Charter right on a balance of probabi l i t ies. . . . 1 4 0 Therefore, I would argue that by focussing on d iscuss ions of shared and divergent communit ies of interests, rather than the proper definition of sub-groups, the Court will open up an important p rocess for coming to terms with the complex c a u s e s of oppress ion. W a s the Court 's decis ion in Symes wrong? Would the dissent ing decis ion of the sole two women Just ices of the Court have been more appropr iate? Wou ld the interests of 'equality' been served if Sop inka J . had swung the other way in Egan? Shou ld ' M . ' have been denied the right to look to her former partner for support and recuperat ion of the economic contribution she made through her t ime, effort and sacri f ice of other opportunit ies? T h e s e quest ions, I think, are impossible to answer . They are impossible to answer un less and until many other quest ions are asked and answered . For example , would a positive decis ion in Symes have resulted in the government merely shifting around a 'f ixed' amount set for chi ldcare from public facil it ies avai lable based on f inancial need to regressive tax deduct ions only avai lable to the se l f -employed? How many same-sex couples would be pushed below the poverty line as a result of being deemed s p o u s e s ? How will socia l ass is tance officers determine if same-sex co-residents should be deemed to be cohabitants who have a duty to support each other? How much will the f reedom of those who prefer same-sex conjugal relat ionships to choose the form of their relat ionships be limited? What is certain is that many of those who exper ience intersectional oppress ion, particularly where that oppress ion is inter-connected with c lass , will not be able to 153 a c c e s s the benefits of sect ion 15 until courts begin to cons ider non-essent ia l ized subjects. A s S u s a n Boyd has sa id : [...]it s e e m s to me that unless lesbian and gay efforts to ach ieve symbol ic recognit ion of their famil ies are accompan ied by trenchant crit iques of the limits of such recognition in delivering a redistribution of economic wel l -being, they will remain incomplete as political strategies, while they may s imul taneously be the only legal strategies avai lable. 1 It is just such a critique that I have attempted to articulate in this paper. It may be that for those people who exper ience intersectional oppress ion just ice ' is a better d iscourse upon which to rely in their efforts to promote progressive social change. A s Jhappan explains: Naturally, just as the meaning of equality has been disputed within, and outside, feminist movements , so too construct ions of a "just society" will be contested. Never the less, justice, in my view, is a concept both cit izens and courts would be better able to cope with s ince it a l lows difference, re leases us from essential ist and assimilat ionist imperat ives, lends itself much more to situational, rather than to abstract, ana lys is , and appea ls to a sense of fa i rness and of treating people wel l , as worthy, and as deserv ing of r espec t . 1 4 2 In contrast to the essential ist and assimilat ionist logic of equality c la ims and provisions, the justice approach switches the focus from the gender (or race, c lass and so on) identity of the claimant to the relationship in which they are oppressed . Just ice is more flexible, therefore, in forwarding intersecting c la ims as it is unencumbered by narrow compar isons of ascr ibed identities. Just ice can take account of the many and intricate relations of domination in var ious areas of economy and soc ie t y . . . . 1 4 3 1 Canadian Charter of Rights and Freedoms, Constitution Act, 1982, Part 1, enacted as Schedule B to the Canada Act, 1982, (U.K.) 1982, c. 11. 2 Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada (Toronto: Thompson Educational Publishing, Inc., 1989) at 61. 3 For example see: Judy Fudge, "The Public/Private Distinction: The Possibilities and Limits to the Use of Charter Litigation to Further Feminist Struggle" (1987) 25 Osgoode Hall Law Journal 485 & Judy Fudge and Harry Glasbeek, "The Politics of Rights: A Politics with Little Class" (1992) 1 Social and Legal Studies 45. 4 Just Words: Constitutional Rights and Social Wrongs (Toronto: University of Toronto Press, 1997) [hereinafter cited as 'Just Words'] 5 Just Words, supra note 4 at 9 - 11. 154 6 Audrey Macklin, "Symes v. M.N.R.: Where Sex Meets Class" (1992) 5 Canadian Journal of Women and the Law 498 - 517 [hereinafter cited as "Where Sex Meets Class"]. 7 "Where Sex Meets Class," supra note 6 at 508 - 509. 8 "Where Sex Meets Class," supra note 6 at 509. 9 "Where Sex Meets Class," supra note 6 at 515. 1 0 "Where Sex Meets Class," supra note 6 at 510. 1 1 "Where Sex Meets Class," supra note 6 at 515. 1 2 "Where Sex Meets Class," supra note 6 at 512. This point was not lost on lacobucci J . who, as will be discussed shortly, also found that section 63 was the pivotal point of analysis. 1 3 "Where Sex Meets Class," supra note 6 at 516. 1 4 "Where Sex Meets Class," supra note 6 at 510. 1 5 As I will discuss shortly, in the case of Canada (Attorney General) v. Mossop [1993] 1 S.C.R. 554 [hereinafter cited as 'Mossop'] the majority of the Court unilaterally decided to consider the claim as one related to 'sexual orientation' to the exclusion of all other grounds despite the claimants invocation of the ground of 'family status.' 1 6 Martha Minow, Making All the Difference: Inclusion, Exclusion and American Law (Ithaca, NY: Cornell University Press, 1990) [hereinafter cited as Making All the Difference] at 95. 17 Nitya Duclos, "Disappearing Women: Racial Minority Women in Human Rights Cases" (1993) 6 Canadian Journal of Women and Law 25 [hereinafter cited as "Disappearing Women"] at 50. 18 Mossop, supra note 15 1 9 R.S.C., 1985, c. H-6 20 Mossop, supra note 15 per Lamer C.J. at page 580. 21 Mossop, supra note 15 per Lamer C.J. at page 582. 2 2 "Disappearing Women," supra note 17 at 33. 2 3 Mary Eaton, "Patently Confused: Complex Inequality and Canada v. Mossop" (1994) 1:2 Rew'ew of Constitutional Studies 203 [hereinafter cited as "Patently Confused"] at 240 - 241. 24 Ibid, at 244. 25 Mossop, supra note 15 per L'Heureux-Dube J . at page 645. 26 Mossop, supra note 15 per L'Heureux-Dube J . at pages 645 and 646. 27 Mossop, supra note 15 per L'Heureux-Dube J . at page 646. 2 8 See in particular Egan v. Canada [1995] 2 S.C.R. discussed in Sect ion II. 29 Mossop, supra note 15 per L'Heureux-Dube J . at page 646. 3 0 413 F. Supp. 142 (E.D. Mo. 1976) [hereinafter cited as DeGraffenried] 31 Ibid, at 143. 3 2 "Patently Confused," supra note 23 at 228. 33 Ibid. 34 Mossop, supra note 15 per L'Heureux-Dube J . at page 646. 35 DeGraffenried, supra note 30 at 143. 3 6 "Patently Confused," supra note 23 at 233. 3 7 [1995] 2 S.C.R. 627 [hereinafter cited as 'Thibaudeau']. 3 8 See for example the discussion of Dianne Pothier, "M'Aider, Mayday: Section 15 of the Charter in Distress" 6 National Journal of Constitutional Law 295 - 345 [hereinafter cited as "M'Aider, Mayday"] at 319. 39 Thibaudeau, supra note 37 per Gonthier J . at page 691. 40 Thibaudeau, supra note 37 per McLachlin J . at page 711. 4 1 "M'Aider, Mayday," supra note 38 at 302. 42 Thibaudeau, supra note 37 per L'Heureux-Dube J . at page 648 and 649.. 43 Thibaudeau, supra note 37 per L'Heureux-Dube J . at page 654. Thibaudeau, supra note 37 per Cory and lacobucci J J . at page 701. Thibaudeau, supra note 37 per Cory and lacobucci J J . at page 703. 4 6 [1993] 4 S.C.R. 695 [hereinafter cited as 'Symes']. 47 Ibid, per Cory J . at pages 770 and 771. 4 8 [1995] 2 S.C.R. 513 [hereinafter cited as 'Egan']. 49 Ibid, per L'Heureux-Dube J . at pages 551 - 552. 155 5 0 "M'Aider, Mayday," supra note 38 at 329 and 330. 5 1 "M'Aider, Mayday," supra note 38 at 302. 5 2 Nitya Iyer, "Categorical Denials: Equality Rights and the Shaping of Social Identity" (1993) 19 Queens Law Journal 179 [hereinafter cited as "Categorical Denials"] at 182. 5 3 "Disappearing Women," supra note 17 at 42. 5 4 Quoted in Mossop, supra note 15 per Lamer C .J . at pages 573 and 574. 5 5 Mossop, supra note 15 per Lamer C .J . at page 580. 5 6 [1997] 1 S .C.R. 241 [hereinafter cited as 'Eaton']. 5 7 Ibid, per Sopinka J . at page 272. 5 8 Margot Young, "Sameness/Difference: A Tale of Two Girls" 4:1 Review of Constitutional Studies 150 [hereinafter cited as "A Tale of Two Girls"] at 159. 5 9 Ibid, at 150. 6 0 Eaton, supra note 56 per Sopinka J . at page 273. 6 1 "A Tale of Two Girls," supra note 58 at 161. 6 2 (1986), 54 O.R. (2d) 513 (C.A.); leave to appeal denied, [1986] 2 S .C.R. 573 [hereinafter cited as 'Blaine/]. 6 3 As Margot Young explains: Justine [the claimant] was an ideal section 15(1) claimant: she could play with the boys. The only difference between her and the other (male) members of the team, as far as playing hockey was concerned, was her sex: in this context, simple an "accident of birth." Indeed, Justice was much more the "same" than she was "different." ("A Tale of Two Girls," supra note 58 at 152.) 6 4 Rhadha Jhappan, "The Equality Pit or the Rehabilitation of Justice" (1998) 10 Canadian Journal of Women and the Law 60 - 107 [hereinafter cited as "The Equality Pit"] at 79. 65 Symes, supra note 46 per L'Heureux-Dube J . at page 825. Symes, supra note 46 per lacobucci J . at page 765 - 766. 6 7 Symes, supra note 46 per lacobucci J . at page 766. 6 8 "A Tale of Two Girls," supra note 58 at 162. 6 9 Symes, supra note 46 per lacobucci J . at page 770 and 771. 7 0 Symes, supra note 46 per lacobucci J . at page 769. 7 1 Lise Gotell, "Litigating Feminist Truth': An Anti-Foundational Critique" (1995) 4 Social and Legal Studies 9 9 - 1 3 1 [hereinafter cited as "Litigating Feminist Truth'"] at 111. 7 2 Symes, supra note 46 per L'Heureux-Dube J . at page 821. 7 3 Symes, supra note 46 per L'Heureux-Dube J . at page 823. 7 4 Symes, supra note 46 per L'Heureux-Dube J . at pages 823 and 824. 7 5 Symes, supra note 46 per L'Heureux-Dube J . at pages 824 - 826. 7 6 Thibaudeau, supra note 37 per McLachlin J . at page 716. 7 7 "Litigating Feminist Truth," supra note 71 at 113. 7 8 Symes, supra note 46 per lacobucci J . at page 765. 7 9 Symes, supra note 46 per lacobucci J . at page 774. 8 0 Symes, supra note 46 per L'Heureux-Dube J . at page 825. 8 1 Just Words, supra note 4 at 9. 8 2 "Disappearing Women," supra note 17 at 37 and 38. 8 3 Just Words, supra note 4 at 51. 8 4 Egan, supra note 48 per La Forest J . at page 526. 8 5 Egan, supra note 48 per La Forest J . at page 536. 8 6 "M'Aider, Mayday," supra note 38 at 309. 8 7 Egan, supra note 48 per La Forest J . at page 26. 8 8 Egan, supra note 48 per Cory and lacobucci J J . at page 169. 8 9 Mossop, supra note 15 per L'Heureux-Dube J . at pages 623 - 633. 9 0 Mossop, supra note 15 per L'Heureux-Dube J . at page 633. 9 1 Egan, supra note 48 per L'Heureux-Dube J . at page 543. 9 2 Egan, supra note 48 per L'Heureux-Dube J . at page 545. 156 9 3 Egan, supra note 48 per L'Heureux-Dube J . at pages 548 and 549. 9 4 Egan, supra note 48 per L'Heureux-Dube J . at pages 551 and 552. 9 5 Egan, supra note 48 per L'Heureux-Dube J . at pages 552 and 553. 9 6 Egan, supra note 48 per L'Heureux-Dube J . at pages 562 and 563. 9 7 Ibid. 9 8 Symes, supra note 46 per L'Heureux-Dube J . at page 825. 9 9 Egan, supra note 48 per L'Heureux-Dube J . at page 544. 1 0 0 Egan, supra note 48 per L'Heureux-Dube J . at page 557. 1 0 1 Egan, supra note 48 per L'Heureux-Dube J . at page 561. 1 0 2 Egan, supra note 48 per L'Heureux-Dube J . at pages 565 and 566. 1 0 3 Egan, supra note 48 per Cory and lacobucci J J . at page 591 and 592. 1 0 4 Egan, supra note 48 per Cory and lacobucci J J . at pages 593 and 594. 1 0 5 For a general discussion of the tax implications of the extension of "spousal" status to same-sex couples see generally Claire F.L. Young, "Taxing Times for lesbians and Gay Men: Equality at What Cost?" (1995) 17 Dalhousie Law Journal 534 - 559 [hereinafter cited as "Taxing Times"]. 1 0 6 Ibid, at 555. 1 0 7 "Taxing Times," supra note 105 at 546. 1 0 8 (1998) 38 O.R. (3d) 577 (CA. ) 1 0 9 Kathleen A. Lahey, >4re We Persons Yet: Law and Sexuality in Canada (Toronto: University of Toronto Press, 1999) [hereinafter cited as 'Law and Sexuality] at 186. 1 1 0 Claire F.L. Young, "Child Care and the Charter. Privileging the Privileged" (1994) 2:1 Review of Constitutional Studies 20 - 38 [hereinafter cited as "Child Care"] at 24. 1 1 1 "Taxing Times," supra note 105 at 555. 1 1 2 These being a 'parent, stepparent, grandparent, uncle, aunt, son, stepson, daughter, stepdaughter, grandchild, sister, brother, niece, or nephew.' 1 1 3 Ontario, Ontario Disability Support Program Policy Bulletin 003-2000 (Toronto: Ontario Disability Support Program Branch, 8 March 2000) at 5. Equivalent provisions are contained in the policy pertaining to general welfare: Ontario, Ontario Works Transition Directive 2001-01 (Toronto: Ontario Works Branch, 8 March 2000). 1 1 4 Margot Young, "The Social Union Framework Agreement: Hollowing out the State" (1999) 10:4 Constitutional Forum 1 2 0 - 128 [hereinafter cited as "The Social Union Framework"] at 120. 1 1 5 [1999] 2 S.C.R. 3 [hereinafter cited as M. v. H.] 1 1 6 It was as a result of this decision that in October 1999 the Government of Ontario passed the Amendments Because of the Supreme Court of Canada Decision in M. v. H. Act, 1999, S .O. 1999, c. 6 This Act modified 67 Ontario statutes, by adding the concept of 'same-sex partner' wherever legislation previously referred to 'spouses'. Included among the 67 statutes are the two which deal with social assistance in the province: Ontario Works Act, 1997 and Ontario Disability Support Program Act, 1997. 1 1 7 Andree Lajoie, Eric Gelineau & Richard Janda, "When Silence Is no Longer Acquiescence: Gays and Lesbians under Canadian Law" (1999) 14:1 Canadian Journal of Law and Society 101 - 126 at 112. 1 1 8 M. v. H., supra note 115 per Cory and lacobucci J J . at page 80. 1 1 9 M. v. H., supra note 115 per Cory and lacobucci J J . at page 80. 1 2 0 M. v. H., supra note 115 per Cory and lacobucci J J . at page 80. 1 2 1 Carl F. Stychin, "Essential ights and Contested Identities: Sexual Orientation and Equality Rights Jurisprudence in Canada" (1995) 8:1 Canadian Journal of Law and Jurisprudence 49 - 66 at 59. 1 2 Quoted in "Litigating Feminist 'Truth'," supra note 71 at 99. 1 2 3 Just Words, supra note 4 at 51. 1 2 4 30 R.P.R. (2d) (N.S. C A . ) 146 - 160 [hereinafter cited as 'Sparks'] 1 2 5 Ibid, at pages 150 and 151. 1 2 6 Sparks, supra note 124 at pages 155. 1 2 7 Sparks, supra note 124 at page 156. 157 1 2 8 Sparks, supra note 124 at 156. 1 2 9 "Categorical Denials," supra note 52 at 207. 1 3 0 "The Equality Pit," supra note 64 at 74. 1 3 1 "The Equality Pit," supra note 64 at 79. 1 3 2 [1999] 2 R.C.S. 203 - 289 [hereinafter cited as 'Corbiere']. 1 3 3 Ibid, per McLachlin and Bastarache J J . at page 15. 1 3 4 Corbiere, supra note 132 per L'Heureux-Dube J . at page 62. 1 3 5 Corbiere, supra note 132 per L'Heureux-Dube J . at page 61. 1 3 6 Corbiere, supra note 132 per McLachlin and Bastarache J J . at page 19. 1 3 7 Corbiere, supra note 132 per L'Heureux-Dube J . at page 65. 1 3 8 Corbiere, supra note 132 per L'Heureux-Dube J . at pages 67 and 68. 1 3 9 Corbiere, supra note 132 per L'Heureux-Dube J . at pages 89 and 90. 1 4 0 Corbiere, supra note 132 per L'Heureux-Dube J . at page 98. 1 4 1 Susan B. Boyd, "Family, Law and Sexuality: Feminist Engagements," (1999) 8:3 Social & Legal Studies 369 - 390 at 381. 1 4 2 "The Equality Pit," supra note 64 at 91. 1 4 3 "The Equality Pit," supra note 64 at 96. 158 Conclusion: From Anti-Essentialist Theory to Progressive Politics: Incorporating Issues of Complex Identities and Injustice into the 'G.L.B.T. Equality' Mandate. W h o are gays , lesbians, b isexuals and transgender, or queer peop le? Are they reflected in the image of a couple of thirty-something, well d ressed white men on a billboard advert isement for high-end condos rolling down an annual Pr ide Pa rade? What about a single mother who goes into a poverty law legal clinic to get advice about appeal ing a ruling that her same-sex lover is her ' spouse ' and that this lover's income should be deducted from her benefi ts? Or a man who w a s landed as a permanent resident of C a n a d a after obtaining refugee status on the bas is of his fear of persecution in his country of origin because of his sexual orientation who wants to sponsor his aging mother, but cannot because he does not earn enough income? What about a woman who is claiming support for herself and her eight year old son , from her ex-lover, after a 16 year relationship in which she stayed home and took care of a house owned by her lover and 'their' s o n ? Or a boardroom full of lawyers, five w o m e n and five men, all white, all middle c lass or wealthy, deciding on the next 'sexual orientation' equality case which they will fund? Or pair of professional ly employed, articulate young men standing in front of the local court house, d iscuss ing their intention to launch a lawsuit against the province for refusing to issue them a l icense to marry each other. They all are, or at least could be, queer. Yet this diversity is often not reflected in the mainst ream media images of queer people which are more and more becoming a part of our cultural understanding of gays, lesbians and bisexuals, even if not t ransgender people who still remain largely invisible to the mainstream. This diversity is a lso not reflected in the market studies funded by 159 the media, particularly the mainstream G.L .B .T . media, for the purpose of courting large corporat ions with the potential of lucrative 'new' markets for their advert isements. This diversity is a lso clearly not reflected in the following excerpt from the Factum of E G A L E 1 submitted in the Supreme Court of C a n a d a proceedings in M. v. H. In arguing that the Court should not have any deference to Ontar io 's dec is ion not to incorporate conjugal same-sex relationships as ' spouses ' within its family law support regime, E G A L E said this: In the absence of any compet ing rights and interests, the deferential approach to the 'minimal impairment' criterion does not apply. Contrary to the At torney-Genera l 's submiss ions (as para. 73-74 of his factum), the fact that the Ontario Law Reform Commiss ion w a s uncertain about the best way to remedy the discriminatory exclusion of s a m e - s e x partners from the FLA support regime, and the fact that there is s o m e d isagreement within the lesbian and gay population about this issue, do not militate in favour of judicial deference to the legislated discrimination in this case . It is only in c a s e s where the legislature was required to 'make cho ices between d isadvantaged groups' or 'to ba lance inequalit ies in the law against other inequalit ies resulting from the adoption of the course of act ion' that this Court has identified a possib le need for judicial de ference to discriminatory legislative cho ices . The existence of differing opin ions on a remedial issue is irrelevant to the s. 1 inquiry. 2 (Emphas is in original). In their zea l to character ize the legislative omiss ion at i ssue in this case as simply 'discriminatory' (read 'without complexity'), E G A L E boldly asser ted and relied upon many of the assumpt ions about the identity of G . L . B . T . people which I have attempted to d is lodge in this thesis: 1. That G . L . B . T . people constitute an homogeneous group, or category of people, whose interests are similar, if not identical in relation to spousa l status; 2. That this category of people is or should be def ined exclus ively by their 'sexual orientation' in equality analys is ; 3. Therefore, there are no compet ing rights or interests within that category of people; 4. A n d consequent ly , that there is no need for the court to ba lance compet ing interests 'between d isadvantaged groups' because these are 'other inequalit ies' immaterial to this category of people; and laslty, 5. That any suggest ion to the contrary is indicative merely of 'differing opinions on a remedial issue ' . 160 I can only hope that by this point, the readers of this thesis have been persuaded that these assert ions are rife with unexamined notions of the identity(ies) of queer people which are either vapid in their unexamined simplicity, or self ish in their myopia. Essent ia l ly , rather than attempt to convince the Court to adopt a nuanced approach to understanding the identity(ies) and inequality(s) of queer people—to mould its equality jur isprudence to fit the complexity of real people 's l ives, and the intersectional oppress ions they may f a c e — E G A L E demanded that the Court s imply ignore these complexi t ies and focus exclusively on 'sexual orientation.' A graphical illustration of the equality analys is asser ted by E G A L E would like this: Figure 1: Oppression, Inequality and/or Identities as Asserted by EGALE 161 In this thesis I have attempted to deconstruct and compl icate this analys is of identity and oppress ion , in general and as specif ical ly as regards queer people. I have attempted to argue that it is both conceptual ly f lawed, and politically ineff icacious to even attempt to understand or redress oppress ion through reference to the legal fiction that people can be descr ibed, fixed or boxed in by a single ground of identity, or oppress ion. I have argued that such an approach severe ly limits our ability to understand the reality of the complex oppress ions people face, the dynamic and multivalent ways in which they intersect to result in systemic oppress ion . I have argued that it marginal izes the exper iences of those who face intersectional oppress ion and stymies our ability to work together in coalt ion. Pe rhaps most importantly, I have argued that the type of analys is depicted graphical ly above does not reflect a natural or even effective political s tance or legal strategy of the identities and goals of the G L B T people. Rather, it reflects the very partial and limited perspect ive of those who are relatively privi leged within the queer community. The analys is presented by E G A L E above reflects a very f lawed perception of a 'pure core ' to G L B T equality i ssues. But un less only the most privi leged of queer people are 162 to be benefited from these efforts, a more complex understanding of our identity(ies) and oppress ion must be uti l ised. I would argue that such an understanding can be graphical ly illustrated in this way: F igure 2: S y s t e m i c O p p r e s s i o n , Inequality(s) and Identity(ies) Conce ived of in this way, it becomes more apparent that insofar as there may be any 'purely gay' i ssues they are pertinent to none but a smal l few. It is an example of identity politics which should appeal to few who desire broad-based progressive socia l change. Polit ical or legal rhetoric and action based upon a myopic approach to the concept of identity—that there should be 'gay' versus 'non-gay i ssues '—is fatally f lawed. 'Identity politics' such as this stymies our potential to work together because it falsely, and often cal lously a s s u m e s at a d iscurs ive level that all the people in the prioritized identity group are the same , thereby ironically, frustrating our ability to d iscover our interconnectivity, our potential for coalit ional work based on are di f ferences. A n d because it a s s u m e s , 163 and therefore prioritizes one perspect ive, it sacr i f ices the capaci ty for complex and multi- layered analys is of social condit ions. Consequent ly , it is an approach which cannot articulate any vision of broad based progressive socia l change. I would advocate for an alternative understanding of 'identity' which is more accurately descr ibed as an understanding of our political identity(ies). This alternative understanding chal lenges, rather than a s s u m e s that there are fixed and universal identities. Th is approach uses dynamic and contested 'political identity(ies),' as opposed to relying upon fixed and comfortable 'identity politics.' No one can be descr ibed, categor ized, captured by reference to one or even several 'fixed identities.' Even if we hyphenate ourselves into infinity—I a m a gay -male-south as ian-person of colour-Car ibbean-progressive-etc. -etc.—the complexi ty of our identity(ies) cannot be articulated solely through hyphenat ion, or 'commatizat ion. ' This process is not sufficiently complex to articulate a reasonable concept of our identity(ies) because identity(ies) are dynamic, not static. For example , I both identify and a m identified as a 'person of color' when I am amongst gay white men. Yet , I both identify and am identified as 'gay' when I am among straight people of color. The identity(ies) which we embrace are partial, not universal . I am a person of color, yet I a m also upper middle c lass and have a higher degree in educat ion. Does this mean that in a world where people of color suffer disproportionately from economic deprivation and d isadvantage that I am less a person of color? W h e n I am with white G L B T people I a m , and a lways will be known and perceived as a person of color. D o e s this mean that I am less purely gay, soi led gay, tinted, or perhaps I should say 'tainted' by my color? Our identity(ies), my identity(ies) can even at t imes be in conflict. I can admire a openly gay member of the progressive conservat ive for his G L B T equality rights work, but I can 164 also detest his conservat ive political and economic goals.Identity(ies) are fundamental ly relational, neither atomistic nor inherent. By this I mean that the identity(ies) and difference(s) do not inhere in any individual person, or even group of people, they exist in the relationships between and among people. I am not a person of color because of my race. R a c e itself is not a biological fact, it is a socia l construct. I am a person of color because I a m not 'white' in a society premised upon the constructed superiority of 'whiteness. ' Identity(ies) are a lso so complex because the societal condit ions and institutions to which they are related are themselves complex, multi- layered and often even multivalent in their effects. Yet it is precisely this complexi ty which is obfuscated when we try to limit political analys is within the G L B T movement by reference to the quest ion: 'What is a 'purely' G L B T Issue?' W h e n 'sexual orientation' is character ized as the pure, natural and primary core of the G L B T movement analys is , we make the d iscuss ion irrelevant to all of those people who do not have the luxury, the privi lege to adopt a one d imensional perspect ive, in other words, people who exper ience oppress ion on multiple and interconnected levels. Equal ly important, when we choose a single, or even a hyphenated approach to identity polit ics, we bind ourselves to an inflexible and crude form of analys is , we severely limit our ability to meaningfully deconstruct and chal lenge complex social institutions and condit ions. The debate is structured such that those people who have multiple perspect ives have to continually push to have new categor ies, new hyphens added on to the agenda . And this can indeed be a frustrating burden, to have to continually justify quest ions which are inclusive of your needs and interests. 165 The implications of these realizations do not mean , however, that it is necessar i ly and universal ly inappropriate to pursue the extension of spousa l status to same-sex coup les , even if extension would result in the compounding of certain axes of oppress ion. It may be, for example , that the symbol ic or cultural va lue that arguably comes with being able to get married may be worth more to a poor or low-income same-sex couple than the f inancial and c lass -based d isadvantages that will come with incorporation into a regressive tax system which rewards rich coup les and penal izes poor and low-income ones . But at the very least, these kinds of quest ions need to be incorporated into viable political debates. Nor I am implying that we should sacri f ice all reference to 'identity(ies)' or even 'identity categor ies ' in the construction of political or legal agendas and strategies. If we eliminate all reference to 'identity(ies)' and 'identity categor ies ' in political thought, we would be left with atomized individuals unable to make political connect ions with each other. If we el iminate all reference to 'grounds' of discr iminat ion, we effectively forfeit the opportunity to participate in the evolution of Canad ian Charter equality jur isprudence. S o what alternative is left? A s Audre Lorde is reported to have sa id , 'Working in coalit ion is never easy . If its easy , you ain't doing it right.' It isn't e a s y because a common identity isn't a s s u m e d , a shared identity is negotiated and d iscovered. I would suggest that we should embrace the fact that all of our identity(ies) are dynamic, and partial, and that somet imes we may even have conflicting identity(ies). But above all, I want to st ress that our identity(ies) are not natural, they are not completely pre-determined, they are constructed. A n d if we accept that identity(ies) are constructed, we have the ability to reconstruct them, even to reconstruct them differently depending upon the context, or the chal lenges we are facing. 166 For example , when I walk into a political forum and identify as a person of color, first it must be recognized that I have made that choice. In say ing this, I do not mean that I can choose not to be a person of color in this whi te-supremacist society. Rather, what I mean is that within that political forum I have chosen to prioritize a particular set of goals , in terms of socia l change, related to race, or to people of color. And insofar as I have chosen to pursue a set of political goals , chosen a political identity, I should a lso take responsibil i ty to articulate, to negotiate, to defend, and to d iscover whether and how my goals , how my political vision corresponds with other people within that forum. Franc isco V a l d e s has descr ibed the chal lenges we face in terms of incorporating our identity(ies) in political movements , or as he talks about it, sameness/d i f fe rence, in this way: [...]any particular (mis)perception of s a m e n e s s or dif ference, whether deemed substantively 'real ' or not, cannot become the point; the point is what we make of the perception - how we interpret s a m e n e s s and difference, how we imbue percept ions of s a m e n e s s and difference with cultural, legal, theoretical or political s igni f icance, and how we then accommodate each other constructively and mutually in the face of significant di f ference. 3 W e are left, in other words, with identity(ies) which are themse lves commitments to a political v is ion. What I a m proposing, therefore, is that we open up that uncomfortable place where coalit ion work is undertaken, that we open up that uncomfortable place in which shared identity(ies) are negotiated and d iscovered, not a s s u m e d nor derived from that same oppress ive society we seek to change. In this type of coalit ion, our shared identity(ies) are less about the categor ies in which society has slotted us and more about what we want society to look like. But perhaps even more importantly, what I am proposing is that if we commit to forming coalit ions based upon a political identity, we a lso do so honestly and openly. S o that if, for 167 example , a group w ishes to organize only around the issue of the right of same-sex couples to get marr ied, for example, regardless of even consider ing the implications in terms of c lass , gender and race, so be it. Let that be the bas is upon which my interest in broadly based progressive socia l change is deemed irrelevant. Not on some spec ious notion about what is, and what is not a ' G a y Issue.' S o that I do not have to continually reassert that I a lso am just as 'gay,' that my identity(ies), my interests, my needs, as a progressive gay man of color are equal ly as important through the hyphenation of my identity. Let us rather enter a space of political contestat ion on an equal footing, in which none of us has claim to a pure vis ion. Create a s p a c e in which I can be included whole, rather than exc luded by the process of fragmentation of my identity(ies). A n d I a m certain, that on this f ield, I will have the advantage. I will have the advantage because I will have the flexibility to interrogate oppress ive socia l pathologies and institutions from many, not one perspect ive; because I will have the f reedom to work in coalit ion with others who share my desire for progressive socia l change; and because we will all be able to speak out against oppress ion in one vo ice , unfettered by hyphens and such . 1 Factum of the Intervener E G A L E Canada Inc., M.. v. H., Supreme Court of Canada. 2 Ibid, at paragraph 45 (references omitted.) 3 Francisco Valdes, 'Sex and Race in Queer Legal Culture: Ruminations on Identities & Inter-Connectivities' (1995) 5 Cal. Rev. L. & Women's Studies 25 - 71 at 35. 168 Bibliography A B E L O V E , H E N R Y , E T A L , E D S . , THE LESBIAN AND GAY STUDIES READER ( L O N D O N : N E W Y O R K : R O U T L E D G E , 1 9 9 3 ) A B N E R , E R I K A , E T A L . , E D S . 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G A T E S " E D I T O R S ' I N T R O D U C T I O N : M U L T I P L Y I N G IDENTIT IES" IN K . W . A P P I A H A N D H . L . G A T E S , E D S . , IDENTITIES ( C H I C A G O : U N I V E R S I T Y O F C H I C A G O P R E S S , 1 9 9 5 ) A R N U P , K A T H E R I N E ' " M O T H E R S J U S T L I K E O T H E R S ' : L E S B I A N S , D I V O R C E A N D C H I L D C U S T O D Y IN C A N A D A " ( 1 9 8 9 ) 3 CANADIAN JOURNAL OF WOMEN AND THELAW\8 - 3 2 A T K I N S O N , P A U L , THE ETNOGRAPHIC IMAGINATION: TEXTUAL CONSTRUCTIONS OF REALITY ( L O N D O N : R O U T L E D G E , 1 9 9 0 ) A Z I Z , R . " F E M I N I S M A N D T H E C H A L L E N G E O F R A C I S M : D E V I A N C E O R D I F F E R E N C E ? " IN H . C R O W L E Y A N D S . H I M M E L W E I T , E D S . , KNOWING WOMEN: FEMINISM AND KNOWLEDGE ( C A M B R I D G E : P O L I T Y P R E S S , 1 9 9 2 ) 1 6 9 B A K A N , J O E L , JUST WORDS: CONSTITUTIONAL RIGHTS AND SOCIAL WRONGS ( T O R O N T O : U N I V E R S I T Y O F T O R O N T O P R E S S , 1 9 9 7 ) — " C O N S T I T U T I O N A L I N T E R P R E T A T I O N A N D S O C I A L C H A N G E : Y O U C A N ' T A L W A Y S G E T W H A T Y o u W A N T ( N O R W H A T Y O U N E E D ) " ( 1 9 9 1 ) 7 0 C A N A D I A N B A R R E V I E W 3 0 7 B A K A N , J O E L A N D D A V I D S C H N E I D E R M A N , " I N T R O D U C T I O N " IN J O E L B A K A N A N D D A V I D S C H N E I D E R M A N , E D S . , SOCIAL JUSTICE AND THE CONSTITUTION: PERSPECTIVES ON A SOCIAL UNION FOR CANADA ( O T T A W A : C A R L E T O N U N I V E R S I T Y P R E S S , 1 9 9 2 ) . B A N N E R J I , H I M A N I " R A C E , R A C I S M A N D F E M I N I S T L E G A L T H E O R Y " V O L . 1 6 , N O . 1 RESOURCES FOR FEMINIST LEGAL THEORY, S P E C I A L I S S U E : " I M M I G R A N T W O M E N " ( M A R C H 1 9 8 7 ) B A R O N , B . " M A R G I N A L I T Y A N D E P I S T E M I C P R I V I L E G E " IN L . A L C O F F A N D E . P O T T E R FEMINIST EPISTEMOLOGIES ( L O N D O N : R O U T L E D G E , 1 9 9 3 ) B A R R E T T , M I C H E L E A N D A N N E P H I L L I P S , E D S . , DESTABILIZING THEORY: CONTEMPORARY FEMINIST DEBATES ( S T A N F O R D : S T A N F O R D U N I V E R S I T Y P R E S S , 1 9 9 2 ) — " W O R D S A N D T H I N G S : M A T E R I A L I S M A N D M E T H O D IN C O N T E M P O R A R Y F E M I N I S T A N A L Y S I S " IN M . B A R R E T T A N D A . P H I L L I P S , DESTABILIZING THEORY: CONTEMPORARY FEMINIST DEBATES ( S T A N F O R D : S T A N F O R D U N I V E R S I T Y P R E S S , 1 9 9 2 ) 2 0 1 - 2 1 9 B A R T H O L O M E W , A M Y , A N D A L A N H U N T . " W H A T ' S W R O N G W I T H R I G H T S ? " ( 1 9 9 0 ) 9 JOURNAL OF LAW AND INEQUALITY 1. B E A M , J O S E P H , E D . , IN THE LIFE: A BLACK GAY ANTHOLOGY ( B O S T O N : A L Y S O N P U B L I C A T I O N S INC. , 1 9 8 6 ) B L A C K W O O D , E V E L Y N , E D . , THE MANY FACES OF HOMOSEXUALITY: ANTHROPOLGICAL APPROACHES TO HOMOSEXUAL BEHAVIOUR ( N E W Y O R K : H A R R I N G T O N P A R K , 1 9 8 9 ) B O W E R , L I S A C , " Q U E E R A C T S A N D T H E P O L I T I C S O F " D I R E C T A D D R E S S " : R E T H I N K I N G L A W , C U L T U R E , A N D C O M M U N I T Y " ( 1 9 9 4 ) V O L . 2 8 , No . 5 LAW AND SOCIETY REVIEW 1 0 0 9 B O W L E S , S A M U E L , A N D H E R B E R T G I N T I S , DEMOCRACY AND CAPITALISM: POPERTY, COMMUNITY, AND THE CONTRADICTIONS OF MODERN SOCIAL THOUGHT (NEW Y O R K : B A S I C B O O K S , 1 9 8 6 ) B O Y D , S U S A N B . " C H I L D C U S T O D Y , I D E O L O G I E S A N D E M P L O Y M E N T " ( 1 9 8 9 ) 3 CANADIAN JOURNAL OF WOMEN AND LA W 1 1 1 - 1 3 3 — " S O M E P O S T M O D E R N I S T C H A L L E N G E S T O F E M I N I S T A N A L Y S E S O F L A W , F A M I L Y A N D S T A T E : I D E O L O G Y A N D D I S C O U R S E IN C H I L D C U S T O D Y L A W " ( 1 9 9 1 ) 1 0 CANADIAN JOURNAL OF FAMILYLAW79 - 1 1 3 1 7 0 — "PECULIAR PARADOXES: LEGAL REGULATION OF FAMILY AND WOMEN'S LIVES" (1993) 8 CANADIAN JOURNAL OF LAW AND SOCIETY 171 . — "(RE)PLACING THE STATE: FAMILY, LAW AND OPPRESSION" (1994) 9(1) CANADIAN JOURNAL OF LAW AND SOCIETY 39 - 7 3 — "BEST FRIENDS OR S P O U S E S ? PRIVATIZATION AND THE RECOGNITION OF LESBIAN RELATIONSHIPS IN M. v . H." (1996) 13 CANADIAN JOURNAL OF FAMILY LAW 321 - 341 — "FAMILY, LAW AND SEXUALITY: FEMINIST ENGAGEMENTS," (1999) VOL. 8, No. 3 SOCIAL & LEGAL STUDIES 3 6 9 - 3 9 0 BOYD, SUSAN & ELIZABETH A . SHEEHY, "INTRODUCTION" IN CANADIAN FEMINIST PERSPECTIVES IN LAW. AN ANNOTATED BIBLIOGRAPHY OF INTERDISCIPLINARY WRITINGS (TORONTO: RESOURCES FOR FEMINIST RESEARCH, O I S E , 1989) BRODSKY, G W E N , "OUT OF THE CLOSET AND INTO A WEDDING D R E S S ? STRUGGLES FOR LESBIAN AND GAY LEGAL EQUALITY" (1994) 7 CANADIAN JOURNAL OF WOMEN AND LAW 5 2 3 - 5 3 5 — "NEW CHALLENGES FOR THE EQUALITY RIGHTS MOVEMENT IN CANADA: THE RIGHTS CRITICS" ( L L . M . THESIS, HARVARD LAW SCHOOL, MAY 4 , 1 9 9 4 ) , 101 - 119. BUMILLER, KRISTEN, THE CIVIL RIGHTS SOCIETY: THE SOCIAL CONSTRUCTION OF VICTIMS (BALTIMORE: JOHNS HOPKINS UNIVERSITY P R E S S , 1988) — "VICTIMS IN THE SHADOW OF THE LAW: A CRITIQUE OF THE MODEL OF LEGAL PROTECTION" (1987) 12 SIGNS 421 BUTLER, JUDITH, "IMITATION AND GENDER INSUBORDINATION" IN DIANA FUSS, ED., INSIDE/OUT: LESBIAN THEORIES, GAY THEORIES (NEW YORK: ROUTLEDGE, 1991) — GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF IDENTITY (NEW YORK: ROUTLEDGE, 1990) CALHOUN, CHESHIRE, "DENATURALIZING AND DESEXUALIZING LESBIAN AND G A Y IDENTITY (1993) 7 9 VA. L. REVIEW 1859 CHARLES, N. AND F. HUGHES-FREELAND PRACTISING FEMINISM: IDENTITY DIFFERENCE AND POWER (LONDON: ROUTLEDGE, 1996) CHUNN, DOROTHY E., "FEMINISM, LAW, AND PUBLIC POLICY: 'POLITICIZING THE PERSONAL'" IN N. MANDELL AND A . DUFFY (EDS.) CANADIAN FAMILIES: DIVERSITY, CONFLICT, AND CHANGE (TORONTO, HARCOURT, 1995) 177 - 2 1 0 171 CICCHINO, P E T E R , B R U C E D E M I N G A N D K A T E N ICHOLSON " S E X , L IES A N D CIVIL R IGHTS: A CRITICAL HISTORY OF T H E M A S S A C H U S E T T S G A Y CIVIL RIGHTS BILL" ( 1 9 9 1 ) 2 6 HARVARD CIVIL RIGHTS-CIVIL LIBERTIES LAW REVIEW 5 4 9 C L A R K , L O R E N N E , "L IBERALISM A N D THE LIVING T R E E : W O M E N , EQUALITY AND THE C H A R T E R " ( 1 9 9 0 ) 2 8 ALBERTA LAW REVIEW 3 8 4 COLL INS , PATRICIA HILL BLACK FEMINIST THOUGHT: KNOWLEDGE, CONSCIOUSNESS, AND THE POLITICS OF EMPOWERMENT^ 9 9 1 ) C O O P E R , DAVINA, "MULTIPLE IDENTITIES: SEXUALITY AND THE S T A T E IN S T R U G G L E " IN POWER IN STRUGGLE: FEMINISM, SEXUALITY AND THE STATE ( B U C K I N G H A M : O P E N UNIVERSITY P R E S S , 1 9 9 5 ) , 5 8 - 7 9 — " G O V E R N I N G T H R O U G H S P A C E AND B E L O N G I N G " IN GOVERNING OUT OF ORDER: SPACE, LAW AND THE POLITICS OF BELONGING ( LONDON A N D N E W Y O R K : R I V E R S O R A M P R E S S , 1 9 9 8 ) — " T H E CITIZEN'S C H A R T E R A N D RADICAL D E M O C R A C Y : E M P O W E R M E N T A N D E X C L U S I O N WITHIN CITIZENSHIP D I S C O U R S E " ( 1 9 9 3 ) 2 SOCIAL AND LEGAL STUDIES 1 4 9 — POWER IN STRUGGLE: FEMINISM, SEXUALITY AND THE STATE ( B U C K I N G H A M : O P E N UNIVERSITY P R E S S , 1 9 9 5 ) — SEXING THE CITY: COMMUNITY POLITICS AND THE LIMITS OF STATE ACTIVISM ( LONDON, R I V E R S O R A M , 1 9 9 4 ) C O S S M A N , B R E N D A A N D B R U C E R Y D E R , REPORT ON THE RIGHTS AND RESPONSIBILITIES OF COHABITANTS UNDER THE FAMILY LAW ACT (TORONTO: O N T A R I O L A W R E F O R M COMMISSION, 1 9 9 3 ) . C R E N S H A W , K IMBERLY " W H O S E S T O R Y IS IT, A N Y W A Y ? FEMINIST A N D ANT IRACIST A P P R O P R I A T I O N S OF ANITA HILL" IN RACE-ING JUSTICE, EN-GENDERING POWER: ESSAYS ON ANITA HILL, CLARENCE THOMAS, AND THE CONSTRUCTION OF SOCIAL REALITYTON\ M O R R I S O N , ED. , ( N E W Y O R K : P A N T H E O N B O O K S , 1 9 9 2 ) — "DEMARGINALIZING T H E INTERSECTION OF R A C E A N D S E X : A B L A C K FEMINIST CRITIQUE OF ANTIDISCRIMINATION DOCTRINE, FEMINIST T H E O R Y A N D ANTIRACIST POLITICS" ( 1 9 8 9 ) 8 9 UNIVERSITY OF CHICAGO LEGAL FORUM 1 3 9 — " R A C E , R E F O R M A N D R E T R E N C H M E N T : T R A N S F O R M A T I O N A N D LEGITIMATION IN ANTIDISCRIMINATION L A W " ( 1 9 8 8 ) V O L . 1 0 1 , N U M B E R 7 HARVARD L 4 I / V R E W E W 1 3 3 1 C R I M P , D O U G L A S , ED. AIDS: CULTURAL ANALYSIS CULTURAL ACTIVISM C A M B R I D G E , M A : M I T P R E S S , 1 9 8 8 ) 1 7 2 C R U I K S H A N K , M A R G A R E T , T H E G A Y A N D L E S B I A N L I B E R A T I O N M O V E M E N T ( N E W Y O R K : R O U T L E D G E , 1 9 9 2 ) D E L G A D O , R I C H A R D " T H E E T H E R E A L S C H O L A R : D O E S C R I T I C A L L E G A L S T U D I E S H A V E W H A T M I N O R I T I E S W A N T ? " ( 1 9 8 7 ) 2 2 H A R V A R D C R - C L L A W R E V . 3 0 1 - 3 2 2 D ' E M I L I O , J O H N , S E X U A L P O L I T I C S , S E X U A L C O M M U N I T I E S : T H E M A K I N G O F A H O M O S E X U A L M I N O R I T Y IN T H E U N I T E D S T A T E S , 1 9 4 0 - 1 9 7 0 ( C H I C A G O : U N I V . O F C H I C A G O P R E S S , 1 9 8 3 ) — " C A P I T A L I S M A N D G A Y IDENTITY" IN A . S N I T O W , C . S T A N S E L L A N D S . T H O M P S O N , E D S . P O W E R S O F D E S I R E : T H E P O L I T I C S O F S E X U A L I T Y ( N E W Y O R K : M O N T H L Y R E V I E W P R E S S , 1 9 8 3 ) 1 0 0 - 1 1 3 D ' E M I L I O , J O H N A N D E S T E L L E B . F R E E D M A N I N T I M A T E M A T T E R S : A H I S T O R Y O F S E X U A L I T Y IN A M E R I C A ( N E W Y O R K : H A R P E R , 1 9 8 8 ) D O R F , J U L I E , A N D G L O R I A C A R E A G A P E R E Z " D I S C R I M I N A T I O N A N D T H E T O L E R A N C E O F D I F F E R E N C E : I N T E R N A T I O N A L L E S B I A N H U M A N R I G H T S " IN J U L I E P E T E R S A N D A N D R E A W O L P E R W O M A N I S E R I G H T S , H U M A N R I G H T S : I N T E R N A T I O N A L F E M I N I S T P E R S P E C T I V E S ( ? : R O U T L E D G E , 1 9 9 5 ) D U B E R M A N , M A R T I N B A U M L , E T A L . , E D S . H I D D E N F R O M H I S T O R Y : R E C L A I M I N G T H E G A Y A N D L E S B I A N P A S T ( N E W Y O R K : N A L , 1 9 8 9 ) D U C L O S , N I T Y A , " L E S S O N S O F D I F F E R E N C E : F E M I N I S T T H E O R Y O N C U L T U R A L D I V E R S I T Y " ( 1 9 9 0 ) V O L . 3 8 , No . 2 B U F F A L O L A W R E V I E W 3 2 5 — " D I S A P P E A R I N G W O M E N : R A C I A L M I N O R I T Y W O M E N IN H U M A N R I G H T S C A S E S ' ( 1 9 9 3 ) 6 C A N A D I A N J O U R N A L O F W O M E N A N D T H E L A W 2 5 — " S O M E C O M P L I C A T I N G T H O U G H T O F S A M E - S E X M A R R I A G E " ( 1 9 9 1 ) 1 L A W A N D S E X U A L I T Y 3 1 - 6 2 D U G G A N , L I S A , " M A K I N G IT P E R F E C T L Y Q U E E R " ( 1 9 9 2 ) 2 2 S O C I A L I S T R E V I E W 1 1 D E V O R E T Z , D O N J . , I M M I G R A T I O N A N D E M P L O Y M E N T E F F E C T S ( O T T A W A : INSTITUTE F O R R E S E A R C H O N P U B L I C P O L I C Y , 1 9 8 9 ) D O N A I S , B L A I N E , " T H R E E S T R I K E S A N D H U M A N R I G H T S IS O U T : C A S E C O M M E N T O N C A N A D A ( A T T O R N E Y G E N E R A L ) V . M O S S O P " ( 1 9 9 3 ) 5 7 S A S K A T C H E W A N L A W R E V I E W 3 6 3 - 3 7 9 E A G L E T O N , T E R R Y , I D E O L O G Y : A N I N T R O D U C T I O N ( L O N D O N : N E W Y O R K : V E R S O , 1 9 9 1 ) E A T O N , M A R Y " L E S B I A N S , G A Y S A N D T H E S T R U G G L E F O R E Q U A L I T Y R I G H T S : R E V E R S I N G T H E P R O G R E S S I V E H Y P O T H E S I S " ( 1 9 9 4 ) 1 7 D A L H O U S I E L A W J O U R N A L 1 3 0 1 7 3 E D E L M A N , L E E " T E A R O O M S A N D S Y M P A T H Y , O R , T H E E P I S T E M O L O G Y O F T H E W A T E R C L O S E T " IN A N D R E P A R K E R , M A R Y R U S S O E T A L , E D S . , N A T I O N A L I S M S A N D S E X U A L I T I E S ( N E W Y O R K : R O U T L E D G E , 1 9 9 2 ) E R W I C K , P A T R I C I A , A N D S U S A N S . S I L B E Y " C O N F O R M I T Y , C O N T E S T A T I O N , A N D R E S I S T E N C E : A N A C C O U N T O F L E G A L C O N S C I O U S N E S S " ( 1 9 9 2 ) 2 6 N E W E N G L A N D L . R E V . 7 3 1 - 4 9 E S K R I D G E , W I L L I A M N . , " A S O C I A L C O N S T R U C T I O N I S T C R I T I Q U E O F P O S N E R ' S S E X A N D R E A S O N : S T E P S T O W A R D A G A Y L E G A L A G E N D A " ( 1 9 9 2 ) 1 0 2 Y A L E L A W J O U R N A L 3 3 3 E S P I N O Z A , L E S L I E A N D A N G E L A H A R R I S , " A F T E R W O R D : E M B R A C I N G T H E T A R - B A B Y - L A T C R I T T H E O R Y A N D T H E S T I C K Y M E S S O F R A C E " , 8 5 C A L I F O R N I A L A W R E V I E W 1 5 8 5 - 1 6 4 5 F A D E R , R I C H A R D , " R E E M E R G E N C E O F T H E C H A R T E R A P P L I C A T I O N D E B A T E : I S S U E S F O R T H E S U P R E M E C O U R T IN E L D R I D G E A N D V R I E N D " 6 D A L H O U S I E J O U R N A L O F L E G A L S T U D I E S 1 8 7 - 2 3 5 F A J E R , M A R K A . , " C A N T W O R E A L M E N E A T Q U I C H E T O G E T H E R ? S T O R Y T E L L I N G , G E N D E R -R O L E S T E R E O T Y P E S , A N D L E G A L P R O T E C T I O N F O R L E S B I A N S A N D G A Y M E N " ( 1 9 9 2 ) 4 6 U . M I A M I L A W R E V . 5 1 1 F A U L K N E R , E L L E N , " L E S B I A N A B U S E : T H E S O C I A L A N D L E G A L R E A L I T I E S " 1 6 Q U E E N ' S L A W J O U R N A L ! ^ - 2 8 6 F E R E E , M Y R A M A R X " B E T W E E N T W O W O R L D S " IN F E M I N I S T R E S E A R C H M E T H O D S : E X E M P L A R Y R E A D I N G S IN T H E S O C I A L S C I E N C E S , J O Y C E M C C A R L N I E L S O N , E D . , ( B O U L D E R : W E S T V I E W P R E S S , 1 9 9 0 ) F I T Z P A T R I C K , P E T E R " R A C I S M A N D T H E I N N O C E N C E O F L A W ( 1 9 8 7 ) 1 4 J O U R N A L O F L A W & S O C I O L O G Y 1 1 9 F I T Z P A T R I C K , P E T E R , E D . , D A N G E R O U S S U P P L E M E N T S : R E S I S T A N C E A N D R E N E W A L IN J U R I S P R U D E N C E ( L O N D O N : P L U T O P R E S S , 1 9 9 1 ) F O S T E R , W I L L I A M , F R E D G R U E N A N D N E I L S W A N , " E C O N O M I C E F F E C T S O F T H E H O S T C O M M U N I T Y " IN A D E L M A N , H O W A R D E T A L , E D S . , I M M I G R A T I O N A N D R E F U G E E P O L I C Y : A U S T R A L I A A N D C A N A D A C O M P A R E D , V O L U M E II ( T O R O N T O : U N I V E R S I T Y O F T O R O N T O P R E S S , 1 9 9 4 ) 4 4 5 - 4 7 2 F O U C A U L T , M I C H E L , T H E H I S T O R Y O F S E X U A L I T Y : A N I N T R O D U C T I O N ( L O N D O N : P E N G U I N B O O K S , 1 9 7 6 ) F R A S E R , L A U R A , " R I G H T S W I T H O U T M E A N I N G : F A I L I N G T O G I V E E F F E C T T O T H E P U R P O S E O F S E C T I O N 1 5 ( 1 ) " ( 1 9 9 7 ) 6 D A L H O U S I E J O U R N A L O F L E G A L S T U D I E S 3 4 7 - 3 6 0 1 7 4 F R A S E R , N A N C Y , " F A L S E A N T I T H E S E S : A R E S P O N S E T O S E Y L A B E N H A B I B A N D J U D I T H B U T L E R " IN J U S T I C E I N T E R R U P T U S : C R I T I C A L R E F L E C T I O N S O N T H E ' P O S T S O C I A L I S T ' C O N D I T I O N { H E W Y O R K A N D L O N D O N : R O U T L E D G E , 1 9 9 7 ) F R E E M A N , A L A N , " A N T I D I S C R I M I N A T I O N L A W " IN D A V I D K A I R Y S , E D . , T H E P O L I T I C S O F L A W : A P R O G R E S S I V E C R I T I Q U E ( N E W Y O R K : P A N T H E O N B O O K S , 1 9 8 2 ) F R E E M A N , J O D Y " D E F I N I N G F A M I L Y IN M O S S O P V . D S S : T H E C H A L L E N G E O F A N T I -E S S E N T I A L I S M A N D I N T E R A C T I V E D I S C R I M I N A T I O N F O R H U M A N R I G H T S L I T I G A T I O N " ( 1 9 9 4 ) 4 4 U N I V E R S I T Y O F T O R O N T O L A W J O U R N A L 4 1 - 9 6 Fuss, D . , E D . , I N S I D E / O U T : L E S B I A N T H E O R I E S , G A Y T H E O R I E S ( N E W Y O R K : R O U T L E D G E , 1 9 9 1 ) — " R A C I S M , R I G H T S , A N D T H E Q U E S T F O R E Q U A L I T Y O F O P P O R T U N I T Y : A C R I T I C A L L E G A L E S S A Y " ( 1 9 8 8 ) 2 3 H A R V A R D C R - C L L R E V . 2 9 5 - 4 1 3 G A M S O N , J . " M U S T IDENTITY M O V E M E N T S S E L F - D E S T R U C T ? A Q U E E R D I L E M M A " ( 1 9 9 5 ) 4 2 S O C I A L P R O B L E M S 3 9 0 G A V I G A N , S H E L L E Y , " P A R A D I S E L O S T , P A R A D O X R E V I S I T E D : T H E I M P L I C A T I O N S O F F A M I L I A L I D E O L O G Y F O R F E M I N I S T , L E S B I A N A N D G A Y E N G A G E M E N T T O L A W " ( 1 9 9 3 ) 3 1 O S G O O D E H A L L L . J . 5 8 9 - 6 2 4 — " L A W , G E N D E R , A N D I D E O L O G Y " IN A . B A Y E F S K Y ( E D . ) L E G A L T H E O R Y M E E T S L E G A L P R A C T I C E ( E D M O N T O N : A C A D E M I C P R I N T I N G A N D P U B L I S H I N G , 1 9 8 8 ) , 2 8 3 - 2 9 5 — " L E G A L F O R M S , F A M I L Y F O R M S , G E N D E R E D N O R M S : W H A T IS A S P O U S E ? " ( 1 9 9 9 ) 1 4 - 1 C A N A D I A N J O U R N A L O F L A W A N D S O C I E T Y 1 2 7 - 1 5 7 G I B S O N , D A L E , " A N A L O G O U S G R O U N D S O F D I S C R I M I N A T I O N U N D E R T H E C A N A D I A N C H A R T E R : T o o M U C H A D O A B O U T N E X T T O N O T H I N G " ( 1 9 9 1 ) V O L . 2 9 , N o . 4 A L B E R T A L A W R E V I E W 7 7 2 - 7 9 1 G I L M O R E , A N G E L A , " T H E Y ' R E J U S T F U N N Y T H A T W A Y : L E S B I A N S , G A Y M E N A N D A F R I C A N -A M E R I C A N C O M M U N I T I E S A S V I E W E D T H R O U G H T H E P R I V A C Y P R I S M " ( 1 9 9 4 ) V O L . 3 8 , No . 1 H O W A R D L A W J O U R N A L 2 3 1 - 2 4 6 G O M E Z , A L M A , E T A L . , A D S , C U E N T O S : S T O R I E S B Y L A T I N A S ( B R O O K L Y N , N Y : W O M E N O F C O L O U R P R E S S , 1 9 8 3 ) G O T E L L , L I S E " L I T I G A T I N G F E M I N I S T T R U T H ' : A N A N T I - F O U N D A T I O N A L C R I T I Q U E " ( 1 9 9 5 ) 4 S O C I A L A N D L E G A L S T U D I E S 9 9 - 1 3 1 G R A N T , I S A B E L A N D J U D I T H M O S O F F , " H E A R I N G C L A I M S O F I N E Q U A L I T Y : E L D R I D G E V . B R I T I S H C O L U M B I A ( A . G . ) " ( 1 9 9 8 ) 1 0 C A N A D I A N J O U R N A L O F W O M E N A N D T H E L A W 2 2 9 - 2 4 3 1 7 5 G R E E N B E R G , D , T H E C O N S T R U C T I O N O F H O M S E X U A L I T Y ( C H I C A G O : U N I V E R S I T Y O F C H I C A G O P R E S S , 1 9 8 8 ) G R E Y , A N T O N Y , S P E A K I N G O U T : W R I T I N G S O N S E X , L A W , P O L I T I C S A N D S O C I E T Y , 1 9 5 4 - 9 5 ( L O N D O N : C A S S E L L , 1 9 9 7 ) G U P T A , S U N I L " B L A C K , B R O W N , A N D W H I T E " IN C O M I N G O N S T R O N G : G A Y P O L I T I C S A N D C U L T U R E , E D . S I M O N S H E P H E R D A N D M I C K W A L L U S ( L O N D O N : U N W I N H Y M A N , 1 9 8 9 ) H A L L , S T U A R T , " C U L T U R A L S T U D I E S A N D ITS T H E O R E T I C A L L E G A C I E S " IN L A W R E N C E G R O S S B E R G , C A R Y N E L S O N , A N D P A U L A T R E I C H L E R , E D S . , C U L T U R A L S T U D I E S ( N E W Y O R K : R O U T L E D G E , 1 9 9 2 ) H A R P E R , P H I L L I P B R I A N , " T H E S U B V E R S I V E E D G E ' : P A R I S I S B U R N I N G , S O C I A L C R I T I Q U E , A N D T H E L IMITS O F S U B J E C T I V E A G E N C Y " ( 1 9 9 4 ) V O L . 2 4 , 2 / 3 D I A C R I T I C S 9 0 . H A R R I S , A N G E L A P . " R A C E A N D E S S E N T I A L I S M IN F E M I N I S T L E G A L T H E O R Y " 4 2 S T A N F O R D L A W R E V I E W W \ ( 1 9 9 0 ) — " B U I L D I N G T H E O R Y , B U I L D I N G C O M M U N I T Y , " ( 1 9 9 9 ) V O L . 8 , N o . 3 S O C I A L & L E G A L S T U D I E S 3 1 3 - 3 2 5 H A R T , J O H N , " A C O C K T A I L O F A L A R M : S A M E - S E X C O U P L E S A N D M I G R A T I O N T O A U S T R A L I A 1 9 8 5 - 9 0 " IN M O D E R N H O M O S E X U A L I T I E S : F R A G M E N T S O F L E S B I A N A N D G A Y E X P E R I E N C E E D . K E N P L U M M E R ( L O N D O N : R O U T L E D G E , 1 9 9 2 ) H A Y F I E L D , A N N E , S H O T B Y B O T H S I D E S ( L O N D O N : L E S B I A N A N D G A Y E M P L O Y M E N T R I G H T S , 1 9 9 5 ) H E I N Z E , E R I C , S E X U A L O R I E N T A T I O N : A H U M A N R I G H T ( D O R D R E C H T : M A R T I N U S N U H O F F P U B L I S H E R S , 1 9 9 5 ) — " G A Y A N D P O O R " ( 1 9 9 5 ) V O L . 3 8 , N o . 2 H O W A R D L A W J O U R N A L 4 3 3 - 4 4 8 H E N D R I K S , A A R T , E T A L . , E D S . , T H E T H I R D P I N K B O O K : A G L O B A L V I E W O F L E S B I A N A N D G A Y L I B E R A T I O N A N D O P P R E S S I O N ( B U F F A L O , N Y : P R O M E T H E U S , 1 9 9 3 ) H E N N I N G , B E C H , " R E P O R T F R O M A R O T T E N S T A T E : ' M A R R I A G E ' A N D ' H O M O S E X U A L I T Y ' IN ' D E N M A R K ' " IN M O D E R N H O M O S E X U A L I T I E S : F R A G M E N T S O F L E S B I A N A N D G A Y E X P E R I E N C E E D . K E N P L U M M E R ( L O N D O N : R O U T L E D G E , 1 9 9 2 ) 1 3 4 - 1 4 7 H E R B E R T , J A C I N T H " ' O T H E R N E S S ' A N D T H E B L A C K W O M A N " ( 1 9 8 9 ) 3 C A N A D I A N J O U R N A L O F W O M E N A N D T H E L A W 2 6 9 - 2 7 9 1 7 6 H E R D T , G , " R E P R E S E N T A T I O N S OF HOMOSEXUALITY: A N E S S A Y ON C U L T U R A L O N T O L O G Y A N D HISTORICAL C O M P A R I S O N , P A R T I" ( 1 9 9 1 ) 1 J O U R N A L O F THE H I S T O R Y O F S E X U A L I T Y 6 0 3 - 6 3 2 H E R M A N , DIDI ' "SOCIOLOGICALLY S P E A K I N G ' : L A W , SEXUALITY A N D SOCIAL C H A N G E " ( 1 9 9 1 ) 2 J O U R N A L O F HUMAN J U S T I C E 5 7 - 7 6 — " A R E W E FAMILY: LESBIAN RIGHTS AND W O M E N ' S LIBERATION" ( 1 9 9 0 ) 2 8 O S G O O D E H A L L L A W J O U R N A L 7 8 9 — R I G H T S O F P A S S A G E : S T R U G G L E S F O R L E S B I A N A N D G A Y E Q U A L I T Y . (TORONTO: UNIVERSITY OF T O R O N T O P R E S S , 1 9 9 4 ) — " B E Y O N D T H E RIGHTS D E B A T E " ( 1 9 9 3 ) 2 S O C I A L & L E G A L S T U D I E S 2 5 . H E R M A N , DIDI AND C A R L STYCHIN , EDS . , L E G A L I N V E R S I O N S : L E S B I A N S , G A Y M E N , AND THE P O L I T I C S O F L A W (PHILADELPHIA: T E M P L E UNIVERSITY P R E S S , 1 9 9 5 ) H IEBERT, J A N E , "R IGHTS AND PUBL IC D E B A T E : T H E LIMITATIONS OF A "R IGHTS M U S T B E P A R A M O U N T " P E R S P E C T I V E " ( 1 9 9 3 ) 7 -8 INTERNATIONAL J O U R N A L O F CANADIAN S T U D I E S 1 1 7 HOOKS, BELL, A I N ' T I A W O M A N : B L A C K W O M E N A N D F E M I N I S M ( B O S T O N : S O U T H E N D P R E S S , 1 9 8 1 ) — Y E A R N I N G : R A C E , G E N D E R , A N D C U L T U R A L P O L I T I C S ( L O N D O N : T U R N A R O U N D , 1 9 9 1 ) — B L A C K L O O K S : R A C E A N D R E P R E S E N T A T I O N ( N E W Y O R K : R O U T L E D G E , 1 9 9 2 ) H U L L , G L O R I A T . , E T A L , EDS . , A L L THE W O M E N A R E W H I T E , A L L THE B L A C K S A R E M E N , B U T S O M E O F U S A R E B R A V E : B L A C K W O M E N ' S S T U D I E S ( O L D W E S T B U R Y , N Y : T H E FEMINIST P R E S S , 1 9 8 2 ) HUNT, A L A N , "R IGHTS A N D SOCIAL M O V E M E N T S : C O U N T E R - H E G E M O N I C S T R A T E G I E S " ( 1 9 9 0 ) 1 7 J O U R N A L O F L A W A N D S O C I E T Y 3 0 9 HUNT, A L A N , A N D A M Y B A R T H O L O M E W " W H A T ' S W R O N G WITH R I G H T S ? " ( 1 9 9 0 ) 9 J O U R N A L O F L A W A N D INEQUALITY 1 HUTCHINSON, A . C . , A N D A N D R E W P E T T E R "PRIVATE R I G H T S / P U B L I C W R O N G S : T H E LIBERAL LIE OF THE C H A R T E R " ( 1 9 8 8 ) 3 8 U N I V E R S I T Y O F T O R O N T O L A W J O U R N A L 2 7 8 HUTCINSON, D A R R E N L. " O U T Y E T U N S E E N : A RACIAL CRIT IQUE OF G A Y A N D LESBIAN L E G A L T H E O R Y A N D POLITICAL D I S C O U R S E " V O L . 2 9 , N U M B E R 2 C O N N E C T I C U T L A W R E V I E W 5 6 1 - 6 4 5 . 1 7 7 HUNT, A L A N , "R IGHTS AND SOCIAL M O V E M E N T S : C O U N T E R - H E G E M O N I C S T R A T E G I E S " ( 1 9 9 0 ) 1 7 J O U R N A L OF L A W AND S O C I E T Y 3 0 9 — " T H E IDEOLOGY OF L A W : A D V A N C E S AND P R O B L E M S IN R E C E N T APPL ICAT IONS OF THE C O N C E P T OF IDEOLOGY TO THE A N A L Y S I S OF L A W " ( 1 9 8 5 ) 1 9 L A W AND S O C I E T Y R E V I E W 11 HUNT, A L A N , AND A M Y B A R T H O L O M E W " W H A T ' S W R O N G WITH R I G H T S ? " ( 1 9 9 0 ) 9 J O U R N A L OF L A W AND INEQUALITY 1 H U N T E R , N A N " M A R R I A G E , L A W AND C U L T U R A L ( ? ) FEMINIST INQUIRY" 1 L A W & S E X U A L I T Y 9 , 1 6 - 1 9 ( 1 9 9 1 ) ISLAND, DAVID & PATRICK LETELLIER, M E N W H O B E A T THE M E N W H O L O V E T H E M : B A T T E R E D G A Y M E N AND D O M E S T I C V I O L E N C E ( N E W Y O R K : L O N D O N : T H E H A W O R T H P R E S S , 1 9 9 1 ) IYER, NITYA " S O M E M O T H E R S A R E B E T T E R T H A N O T H E R S : A RE-EXAMINATION OF MATERNITY B E N E F I T S " IN S U S A N B . B O Y D , ED. C H A L L E N G I N G THE P U B L I C / P R I V A T E D I V I D E : FEMINISM, L A W AND P U B L I C P O L I C Y (TORONTO, UNIVERSITY OF T O R O N T O P R E S S , 1 9 9 7 ) , 1 6 8 - 1 9 4 — " C A T E G O R I C A L DENIALS: EQUALITY RIGHTS A N D THE S H A P I N G OF S O C I A L IDENTITY" ( 1 9 9 3 ) 1 9 Q U E E N L A W J O U R N A L 1 7 9 . J A C K M A N , M A R T H A , " T H E REGULATION OF PRIVATE H E A L T H C A R E U N D E R T H E CANADA H E A L T H A C T A N D THE CANADIAN C H A R T E R " ( 1 9 9 5 ) 6 CONSTITUTIONAL F O R U M 5 4 - 6 0 J A C O B S , M I C H A E L P . , "Do G A Y M E N H A V E A S T A K E IN M A L E P R I V I L E G E ? : T H E POLITICAL E C O N O M Y OF G A Y M E N ' S CONTRADICTORY RELATIONSHIP TO FEMINISM" IN A . G L U C K M A N A N D B E T S Y R E E D , EDS . , H O M O S E X U A L E C O N O M I C S : CAPITALISM, COMMUNITY, AND L E S B I A N AND G A Y L I F E ( N E W Y O R K : R O U T L E D G E , 1 9 9 7 ) 1 6 5 - 1 8 4 . J A M E S , STANLIE M . & A B E N A P . A . BUSIA, EDS . , THEORIZING B L A C K F E M I N I S M S : T H E VISIONARY P R A G M A T I S M OF B L A C K W O M E N ( LONDON: N E W Y O R K : R O U T L E D G E , 1 9 9 3 ) J E F F R E Y S , S . , T H E L E S B I A N H E R E S Y ( LONDON: SPINIFEX, 1 9 9 3 ) J H A P P A N , R A D H A , " P O S T - M O D E R N R A C E AND G E N D E R ESSENTIAL ISM OF A P O S T - M O R T E M OF S C H O L A R S H I P " ( 1 9 9 6 ) 51 S T U D I E S IN POLITICAL E C O N O M Y " 1 5 - 6 3 — " T H E EQUALITY PIT OR THE REHABILITATION OF J U S T I C E " ( 1 9 9 8 ) 1 0 CANADIAN J O U R N A L OF W O M E N AND THE L A W 6 0 - 1 0 7 K A H N , A R T H U R D. T H E M A N Y F A C E S OF G A Y : A C T I V I S T S W H O A R E C H A N G I N G THE NATION ( W E S T P O R T : L O N D O N : P R A E G E R , 1 9 9 7 ) 1 7 8 K A I R Y S , DAVID, "UNEXPLA INABLE ON G R O U N D S O T H E R T H A N R A C E " ( 1 9 9 6 ) 4 5 T H E A M E R I C A N U N I V E R S I T Y L A W R E V I E W 7 2 9 - 7 4 9 K A L L E N , E V E L Y N , " G A Y A N D LESBIAN RIGHTS ISSUES: A C O M P A R A T I V E A N A L Y S I S OF S Y D N E Y , A U S T R A L I A AND T O R O N T O , C A N A D A " ( 1 9 9 6 ) 1 8 HUMAN R I G H T S Q U A R T E R L Y 2 0 6 - 2 2 3 K A P L A N , M O R R I S B. , " C O N S T R U C T I N G LESBIAN AND G A Y RIGHTS A N D LIBERATION" ( 1 9 9 3 ) 7 9 V A . L . R E V I E W 1 8 7 7 — S E X U A L J U S T I C E : D E M O C R A T I C C I T I Z E N S H I P AND THE P O L I T I C S O F D E S I R E ( N E W Y O R K : R O U T L E D G E , 1 9 9 7 K A P U R , R A T N A & B R E N D A C O S S M A N , S U B V E R S I V E S I T E S : F E M I N I S T E N G A G E M E N T S WITH L A W IN INDIA ( N E W DELHI : T H O U S A N D O A K S : L O N D O N : S A G E PUBLICATIONS, 1 9 9 6 ) AT 8 7 - 9 9 . KLINE, M A R L E E "COMPLICATING THE IDEOLOGY OF M O T H E R H O O D : CHILD W E L F A R E L A W AND FIRST NATION W O M E N " ( 1 9 9 3 ) 1 8 Q U E E N ' S L A W J O U R N A L 3 0 6 - 3 4 2 — " R A C E , R A C I S M A N D FEMINIST L E G A L T H E O R Y " ( 1 9 8 9 ) 1 2 H A R V A R D W O M E N ' S L A W J O U R N A L 1 1 5 — " W O M E N ' S O P P R E S S I O N AND R A C I S M : A CRITIQUE OF T H E 'FEMINIST STANDPOINT ' " IN J E S S E V O R S T , E T A L . , EDS . , R A C E , C L A S S , G E N D E R : B O N D S A N D B A R R I E R S (TORONTO: B E T W E E N THE L INES, 1 9 8 9 ) K R O P P , D O U G L A S , " ' C A T E G O R I A L ' FA ILURE: C A N A D A ' S EQUALITY J U R I S P R U D E N C E -C H A N G I N G NOTIONS OF IDENTITY A N D THE L E G A L S U B J E C T " ( 1 9 9 7 ) 2 3 Q U E E N ' S L A W J O U R N A L 2 0 1 - 2 3 0 L A C L A U , E R N E S T O , A N D C H A N T A L M O U F F E , H E G E M O N Y AND S O C I A L I S T S T R A T E G Y : T O W A R D S A R A D I C A L D E M O C R A T I C P O L I T I C S ( LONDON: V E R S O , 1 9 8 5 ) LAJOIE, A N D R E E , E R I C G E L I N E A U & RICHARD J A N D A , " W H E N S I L E N C E IN N O L O N G E R A C Q U I E S C E N C E : G A Y S AND L E S B I A N S UNDER CANADIAN L A W " ( 1 9 9 9 ) 14:1 CANADIAN J O U R N A L O F L A W A N D S O C I E T Y 101 - 1 2 6 L E F E B O U R , PATRICIA, " S A M E S E X S P O U S A L RECOGNITION IN ONTARIO: D E C L A R A T I O N S AND DENIALS: A C L A S S P E R S P E C T I V E " ( 1 9 9 3 ) 9 J O U R N A L O F L A W A N D S O C I A L P O L I C Y 2 1 2 -2 8 9 Li, P E T E R S . , ED. , R A C E A N D E T H N I C R E L A T I O N S IN C A N A D A ( T O R O N T O : O X F O R D UNIVERSITY P R E S S , 1 9 9 0 ) L IM-HING, S H A R O N , ED. , T H E V E R Y I N S I D E (TORONTO, S I S T E R VISION P R E S S , 1 9 9 4 ) L O R D E , A U D R E S L S T E R O U T S I D E R ( T R U M A N S B U R G , N Y : C R O S S I N G P R E S S , 1 9 8 4 ) 1 7 9 — Z A M I : A N E W S P E L L I N G O F M Y N A M E ( W A T E R T O W N , M A : P E R S E P H O N E P R E S S , 1 9 8 2 ) L A H E Y , K A T H L E E N A . , L A W AND S E X U A L I T Y IN C A N A D A (TORONTO: UNIVERSITY OF T O R O N T O P R E S S , 1 9 9 9 ) L U T Z E N , K. " G A Y A N D LESBIAN POLITICS: ASSIMILATION OR S U B V E R S I O N : A DANISH P E R S P E C T I V E " ( 1 9 9 8 ) J O U R N A L O F H O M O S E X U A L I T Y 2 3 3 - 2 4 3 M A C K I N N O N , C A T H A R I N E A . , " F R O M P R A C T I C E TO T H E O R Y , OR W H A T IS A WHITE W O M A N A N Y W A Y ( 1 9 9 1 ) 4 Y A L E J O U R N A L O F L A W AND F E M I N I S M 1 3 M A C K L I N , A U D R E Y " S Y M E S V . M . N . R . : W H E R E S E X M E E T S C L A S S " ( 1 9 9 2 ) 5 CANADIAN J O U R N A L O F W O M E N A N D THE L A W 4 9 8 - 5 1 7 M A N D E L L , N A N C Y , E T A L . , EDS . , CANADIAN F A M I L I E S : D I V E R S I T Y , C O N F L I C T AND C H A N G E (TORONTO: H A R C O U R T B R A C E , 1 9 9 5 ) M A S O N - J O H N , V A L E R I E , ED. , TALKING B L A C K : L E S B I A N S O F A F R I C A A N D A S I A N D E S C E N T S P E A K O U T ( LONDON: C A S S E L L , 1 9 9 5 ) M A S O N - J O H N , V A L E R I E A N D A N N KHAMBATTA, L E S B I A N S T A L K : M A K I N G B L A C K W A V E S ( LONDON: S C A R L E T P R E S S , 1 9 9 3 ) M A T S U D A , MARI J . " L O O K I N G TO THE B O T T O M : CRITICAL L E G A L S T U D I E S A N D R E P A R A T I O N S ( 1 9 8 7 ) 2 2 H A R V . C R . C . L . L . R E V . 3 2 3 M C A L L I S T E R , D E B R A " R E C E N T S E X U A L ORIENTATION C A S E S ( 1 9 9 3 ) 2 N . J . C . L . 3 5 4 — " S E X U A L ORIENTATION AND S P O U S A L S T A T U S : T H E U N R E S O L V E D Q U E S T I O N " ( 1 9 9 3 ) 3 N . J . C . L . 2 8 8 — " T H E S U P R E M E C O U R T IN S Y M E S : T W O SOL ITUDES" 4 NATIONAL J O U R N A L O F C O N S T I T U T I O N A L L A W 2 4 8 - 2 6 3 M C C A N N , M ICHAEL W . , R I G H T S A T W O R K : P A Y E Q U I T Y R E F O R M A N D THE P O L I T I C S O F L E G A L MOBILIZATION ( C H I C A G O : L O N D O N : T H E UNIVERSOTY OF C H I C A G O P R E S S , 1 9 9 4 ) M C C L U R E , KIRSTIE, " O N THE S U B J E C T OF R IGHTS: P L U R A L I S M , PLAURALITY AND POLITICAL IDENTITY" I N C . M O U F F E , ED. D I M E N S I O N S O F R A D I C A L D E M O C R A C Y ( L O N D O N : V E R S O , 1 9 9 2 ) MILLER, D . H . F R E E D O M TO D I F F E R : THE S H A P I N G O F THE G A Y A N D L E S B I A N S T R U G G L E F O R CIVIL R I G H T S ( N E W Y O R K : N E W Y O R K UNIVERSITY P R E S S , 1 9 9 8 ) 1 8 0 M I N D A , G A R Y , P O S T M O D E R N L E G A L M O V E M E N T S : L A W A N D J U R I S P R U D E N C E A T C E N T U R Y ' S E N D ( N E W Y O R K : N Y U P R E S S , 1 9 9 5 ) Mi N O W , M A R T H A , M A K I N G A L L T H E D I F F E R E N C E : I N C L U S I O N , E X C L U S I O N A N D A M E R I C A N L A W ( I T H A C A , N Y : C O R N E L L U N I V E R S I T Y P R E S S , 1 9 9 0 ) M I R Z A , HEIDI S A F I A , " I N T R O D U C T I O N : M A P P I N G A G E N E A L O G Y O F B L A C K B R I T I S H F E M I N I S M , " IN HEIDI S A F I A M I R Z A , ( E D . ) B L A C K B R I T I S H F E M I N I S M : A R E A D E R ( L O N D O N A N D N E W Y O R K : R O U T L E D G E , 1 9 9 7 ) 1 - 3 0 M O H A N T Y , C H A N D R A T A L P A D E , E T A L . , E D . , T H I R D W O R L D W O M E N A N D T H E P O L I T I C S O F F E M I N I S M ( B L O O M I N G T O N : INDIANA U N I V E R S I T Y P R E S S , 1 9 9 1 ) M O N T E R O , O S C A R , " B E F O R E T H E P A R A D E P A S S E S B Y : L A T I N O Q U E E R S A N D N A T I O N A L IDENTITY" ( 1 9 9 0 ) V O L . 2 4 , No . 4 R A D I C A L A M E R I C A 1 6 M O R A G A , C H E R R I E A N D G L O R I A A N Z A L D U A , E D S . , T H I S B R I D G E C A L L E D M Y B A C K : W R I T I N G S B Y R A D I C A L W O M E N O F C O L O U R ( W A T E R T O W N , M A : P E R S E P H O N E P R E S S , 1 9 8 1 ) M O R G A N , W A Y N E , " Q U E E R L A W : IDENTITY, C U L T U R E , D I V E R S I T Y , L A W " ( 1 9 9 5 ) 5 A U S T R A L A S I A N G A Y & L E S B I A N L A W J O U R N A L 1. N E D E L S K Y , J E N N I F E R " R E C O N C E I V I N G R I G H T S A S R E L A T I O N S H I P " ( 1 9 9 3 ) 1 R E V I E W O F C O N S T I T U T I O N A L S T U D I E S 1 O C R A N , A M A N D A A R A B A , " A C R O S S T H E H O M E / W O R K D I V I D E : H O M E W O R K IN G A R M E N T M A N U F A C T U R E A N D T H E F A I L U R E O F E M P L O Y M E N T R E G U L A T I O N " IN S U S A N B . B O Y D , E D . C H A L L E N G I N G T H E P U B L I C / P R I V A T E D I V I D E : F E M I N I S M , L A W A N D P U B L I C P O L I C Y ( T O R O N T O : U N I V E R S I T Y O F T O R O N T O P R E S S , 1 9 9 7 ) P A R E K H , B H I K H U " T H E C U L T U R A L P A R T I C U L A R I T Y O F L I B E R A L D E M O C R A C Y " IN D A V I D H E L D , E D . P R O S P E C T S F O R D E M O C R A C Y : N O R T H , S O U T H , E A S T , W E S T ( S T A N F O R D , C A L I F . : S T A N F O R D U N I V E R S I T Y P R E S S , 1 9 9 3 ) P H E L A N , S H A N E , I D E N T I T Y P O L I T I C S : L E S B I A N F E M I N I S M A N D T H E L I M I T S O F C O M M U N I T Y ( P H I L A D E L P H I A : T E M P L E U N I V E R S I T Y P R E S S , 1 9 8 9 ) — G E T T I N G S P E C I F I C : P O S T M O D E R N L E S B I A N P O L I T I C S ( M I N N E A P O L I S : L O N D O N : U N I V E R S I T Y O F M I N N E S O T A P R E S S , 1 9 9 4 ) P I C K E L , J O - A N N E , " E X O R C I S I N G T H E D E M O N S O F E G A N A N D N E S B I T : V R I E N D V . A L B E R T A A N D T H E A P P L I C A T I O N O F S E C T I O N 1 O F T H E C H A R T E R " 6 C A N A D I A N L A B O U R & E M P L O Y M E N T L A W J O U R N A L 2 7 9 - 2 9 8 P O R T E R , B R U C E , " B E Y O N D A N D R E W S : S U B S T A N T I V E E Q U A L I T Y A N D P O S I T I V E O B L I G A T I O N S A F T E R E L D R I D G E A N D V R I E N D " ( 1 9 9 8 ) 9 : 3 C O N S T I T U T I O N A L F O R U M 7 1 - 8 2 1 8 1 P O T H I E R , D L A N N E , " M ' A L D E R , M A Y D A Y : S E C T I O N 1 5 O F T H E C H A R T E R S D I S T R E S S " 6 N A T I O N A L J O U R N A L O F C O N S T I T U T I O N A L L A W 2 9 5 - 3 4 5 R A M O S , J U A N I T A , E D . , C O M P A N E R A S : L A T I N A L E S B I A N S ( L O N D O N : R O U T L E D G E , 1 9 9 4 ) R A Y S I D E , D A V I D O N T H E F R I N G E : G A Y S A N D L E S B I A N S IN P O L I T I C S ( ITHICA: L O N D O N : C O R N E L L U N I V E R S I T Y P R E S S , 1 9 9 8 ) R A Z A C K , S H E R E N E " U S I N G L A W F O R S O C I A L C H A N G E : H I S T O R I C A L P E R S P E C T I V E S " ( 1 9 9 2 ) 1 7 Q U E E N ' S L A W J O U R N A L 3 1 - 5 3 R E I N F E L D E R , M O N I K A , E D . , A M A Z O N T O Z A M I : T O W A R D S A G L O B A L L E S B I A N F E M I S M ( L O N D O N : C A S S E L L , 1 9 9 6 ) R I C H , A D R I E N N E , " C O M P U L S O R Y H E T E R O S E X U A L I T Y A N D L E S B I A N E X I S T E N C E " ( 1 9 8 0 ) 5 - 4 S I G N S 1 3 4 R I C H A R D S , D . " T H E D I L E M M A O F E S S E N T I A L I T Y IN H O M O S E X U A L T H E O R Y " , IN J . P . D E C E C C O A N D M . G . S H I V E L Y , E D S . , B I S E X U A L A N D H O M O S E X U A L I D E N T I T I E S : C R I T I C A L T H E O R E T I C A L I S S U E S ( N E W Y O R K : H A W O R T H , 1 9 8 4 ) — W O M E N , G A Y S , A N D T H E C O N S T I T U T I O N : T H E G R O U N D S F O R F E M I N I S M A N D G A Y R I G H T S IN C U L T U R E A N D L A W ( C H I C A G O : U N I V E R S I T Y O F C H I C A G O P R E S S , 1 9 9 8 ) R O B E R T S , J . R . , C O M P I L E R , B L A C K L E S B I A N S : A N A N N O T A T E D B I B L I O G R A P H Y ( T A L L A H A S S E E , F L . : N A I A D P R E S S , 1 9 8 1 ) R O B S O N , R U T H A N N , L E S B I A N ( O U T ) L A W : S U R V I V A L U N D E R T H E R U L E O F L A W ( I T H A C A , N Y : F I R E B R A N D , 1 9 9 2 ) — " R E S I S T I N G T H E F A M I L Y : R E P O S I T I O N I N G L E S B I A N S IN L E G A L T H E O R Y ( 1 9 9 4 ) 1 9 : 4 S I G N S 1 2 6 . — " T H E S P E C T R E O F A L E S B I A N S U P R E M E C O U R T J U S T I C E : P R O B L E M S O F IDENTITY IN L E S B I A N L E G A L T H E O R I Z I N G " ( 1 9 9 3 ) 5 S T . T H O M A S L A W R E V I E W 4 3 3 - 5 8 R O S E N B L U M , D A R R E N , " Q U E E R I N T E R S E C T I O N A L I T Y A N D T H E F A I L U R E O F R E C E N T L E S B I A N A N D G A Y V I C T O R I E S ' " ( 1 9 9 4 ) 4 L A W A N D S E X U A L I T Y 8 3 R o s s , B E C K I , " S E X U A L D I S / O R I E N T A T I O N O R P L A Y I N G H O U S E : T O B E O R N O T T O B E C O D E D H U M A N " IN S H A R O N D A L E S T O N E , E D . , L E S B I A N S IN C A N A D A ( T O R O N T O : B E T W E E N T H E L O N E S , 1 9 9 0 ) R U B E N S T E I N , W I L L I A M B . , E D . , L E S B I A N S , G A Y M E N , A N D T H E L A W C\ 9 9 3 ) 1 8 2 R Y D E R , B R U C E " E Q U A L I T Y R I G H T S A N D S E X U A L O R I E N T A T I O N : C O N F R O N T I N G H E T E R O S E X U A L F A M I L Y P R I V I L E G E " ( 1 9 9 0 ) 9 C A N A D I A N J O U R N A L O F F A M I L Y L A W 3 9 — " F A M I L Y S T A T U S , S E X U A L I T Y A N D " T H E P R O V I N C E O F T H E J U D I C I A R Y " " T H E I M P L I C A T I O N S O F M O S S O P V . A . - G . C A N A D A ( 1 9 9 3 ) 1 3 W I N D S O R Y E A R B O O K O F A C C E S S T O J U S T I C E 3 -3 8 — " O V E R V I E W A N D L A W R E F O R M S T R A T E G Y " IN F A M I L Y L A W I S S U E S F O R S A M E - S E X C O U P L E S : N E W S O L U T I O N S F O R N E W P R O B L E M S ( T O R O N T O : T H E C A N A D I A N INST ITUTE, 1 9 9 5 ) S A N D E R S , D O U G L A S , " C O N S T R U C T I N G L E B I A N A N D G A Y R I G H T S " ( 1 9 9 4 ) 9 C A N A D I A N J O U R N A L O F L A W A N D S O C I E T Y 9 9 — " G E T T I N G L E S B I A N A N D G A Y I S S U E S O N T H E I N T E R N A T I O N A L H U M A N R I G H T S A G E N D A " ( 1 9 9 6 ) 1 8 H U M A N R I G H T S Q U A R T E R L Y 6 7 - 1 0 6 S A T Z E W I C H , V I C , E D . , D E C O N S T R U C T I N G A N A T I O N : I M M I G R A T I O N , M U L T I C U L T U R A L I S M A N D R A C I S M IN ' 9 0 S C A N A D A ( H A L I F A X : F E R N W O O D P U B L I S H I N G , 1 9 9 2 ) — " M I G R A N T A N D I M M I G R A N T F A M I L I E S IN C A N A D A : S T A T E C O E R C I O N A N D L E G A L C O N T R O L IN T H E F O R M A T I O N O F E T H N I C F A M I L I E S " ( 1 9 9 3 ) V O L . 2 4 , No. 3 J O U R N A L O F C O M P A R A T I V E F A M I L Y S T U D I E S 3 1 5 - 3 3 8 S C H E I N G O L D , S T U A R T A . , T H E P O L I T I C S O F R I G H T S : L A W Y E R S , P U B L I C P O L I C Y , A N D P O L I T I C A L C H A N G E . ( N E W H A V E N : Y A L E U N I V E R S I T Y P R E S S , 1 9 7 4 ) S L L V E R A , M A K E D A , E D . , P I E C E O F M Y H E A R T . A L E S B I A N O F C O L O U R A N T H O L O G Y ( T O R O N T O : S I S T E R V I S I O N P R E S S , 1 9 9 1 ) S I N F I E L D , A . " D I A S P O R A A N D H Y B R I D I T Y : Q U E E R IDENTIT IES A N D T H E E T H N I C I T Y M O D E L " ( 1 9 9 6 ) 1 0 T E X T U A L P R A C T I C E 2 7 1 S M A R T , C A R O L " T H E W O M E N O F L E G A L D I S C O U R S E " ( 1 9 9 2 ) 1 S O C I A L A N D L E G A L S T U D I E S 2 9 - 4 4 — " P R O S C R I P T I O N , P R E S C R I P T I O N , A N D T H E D E S I R E F O R C E R T A I N T Y ? F E M I N I S T T H E O R Y IN T H E F I E L D O F L A W " ( 1 9 9 3 ) 1 2 S T U D I E S IN L A W , P O L I T I C S A N D S O C I E T Y 3 7 - 5 4 S M I T H , A . M . " T H E I M A G I N A R Y I N C L U S I O N O F T H E A S S I M I L A B L E " G O O D H O M O S E X U A L " : T H E B R I T I S H N E W R I G H T ' S R E P R E S E N T A T I O N O F S E X U A L I T Y A N D R A C E " ( 1 9 9 4 ) V O L . 2 4 , 2 / 3 D I A C R I T I C S 5 8 . S M I T H , B A R B A R A , E D . H O M E G I R L S : A B L A C K F E M I N I S T A N T H O L O G Y ( N E W Y O R K : K I T C H E N T A B L E , W O M E N O F C O L O R P R E S S , 1 9 8 3 ) 1 8 3 S M I T H , B A R B A R A ( A N I N T E R V I E W WITH), " W H E R E H A S G A Y L I B E R A T I O N G O N E ? " IN A . G L U C K M A N A N D B E T S Y R E E D , E D S . , H O M O S E X U A L E C O N O M I C S : C A P I T A L I S M , C O M M U N I T Y , A N D L E S B I A N A N D G A Y L I F E ( N E W Y O R K : R O U T L E D G E , 1997) 196 - 207. S M I T H , M I C H A E L , E D . , B L A C K M E N A / V H I T E M E N ( S A N F R A N C I S C O : G A Y S U N S H I N E P R E S S , 1983) S P E L M A N , E L I Z A B E T H I N E S S E N T I A L W O M A N : P R O B L E M S O F E X C L U S I O N IN F E M I N I S T T H O U G H T ( B O S T O N : B E A C O N P R E S S , 1988) S T O N E , S H A R O N D A L E , E D . , L E S B I A N S IN C A N A D A ( T O R O N T O : B E T W E E N T H E L I N E S , 1990) S T E I N , E . , E D . , F O R M S O F D E S I R E : S E X U A L O R I E N T A T I O N A N D T H E S O C I A L C O N S T R U C T I O N I S T C O N T R O V E R S Y ( N E W Y O R K : R O U T L E D G E , 1990) S T Y C H I N , C A R L F . , A N A T I O N B Y R I G H T S : N A T I O N A L C U L T U R E S , S E X U A L I D E N I T I T Y P O L I T I C S A N D T H E D I S C O U R S E O F R I G H T S ( P H I L A D E L P H I A : T E M P L E U N I V E R S I T Y P R E S S , 1998) — " E S S E N T I A L R I G H T S A N D C O N T E S T E D IDENTIT IES: S E X U A L O R I E N T A T I O N A N D E Q U A L I T Y R I G H T S J U R I S P R U D E N C E IN C A N A D A " (1995) V O L . 8 N o . 1 C A N A D I A N J O U R N A L O F L A W A N D J U R I S P R U D E N C E 49 - 66 T E G H T S O O N I A N , K A T H E R I N E , " W H O P A Y S F O R C A R I N G F O R C H I L D R E N ? 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