Lesbians, Gay Men, and the Canadian Charter of Rights and Freedoms

The legacy of the first twenty years of the Charter for lesbians and gay men is a contradictory one of victories and defeats. At the level of doctrine, strategy, and politics, both the victories and defeats have been precarious and contradictory. While gaining formal equality rights, lesbians and gay men have not been able to secure rights to sexual freedom. And while formal equality has displaced the heteronormativity that denied legal recognition and subjectivity to lesbians and gay men, this formal equality has come at a cost. Lesbians and gay men are being reconstituted in law: some are being newly constituted as legal citizens while others are being re-inscribed as outlaws. The first twenty years of the Charter is a legacy of transgression and normalization; these new legal subjects are both challenging dominant modes of legal subjectivity and its insistence of heterosexuality, while being absorbed into them. The legacy of the first twenty years of the Charter for lesbians and gay men is a contradictory one of victories and defeats. At the level of doctrine, strategy, and politics, both the victories and defeats have been precarious and contradictory. While gaining formal equality rights, lesbians and gay men have not been able to secure rights to sexual freedom. And while formal equality has displaced the heteronormativity that denied legal recognition and subjectivity to lesbians and gay men, this formal equality has come at a cost. Lesbians and gay men are being reconstituted in law: some are being newly constituted as legal citizens while others are being re-inscribed as outlaws. The first twenty years of the Charter is a legacy of transgression and normalization; these new legal subjects are both challenging dominant modes of legal subjectivity and its insistence of heterosexuality, while being absorbed into them. Marriage immemorial been firmly grounded in our legal tradition, one that is a reflection of long-standing philosophical and religious traditions. But its ultimate d'etre transcends all of these and is firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate, that most children are the product of those relationships, and that they are generally cared for and nurtured by those who live in that relationship. In this sense, marriage is by nature heterosexual.23