A Gay Federation: The Effects of Federalism on the Lesbian and Gay Movement in Canada

Abstract

Alan Cairns argues that “federalism is not enough” to deal with non-territorial minorities.1 This certainly seems to have been the case with the Canadian LGBT (lesbian, gay, bisexual, and transgender)2 movement. In some ways, federalism (the specific system of sovereignty-sharing wherein both levels of government are co-equal and each is sovereign in areas under its jurisdiction) has directly inhibited attempts to stop discrimination, provide benefits to common-law same-sex partners, and legalize same-sex marriage. First, prior to the introduction of the Charter of Rights and Freedoms in 1982, human rights cases were usually decided on the basis of jurisdiction, thus severely limiting the ability of activists to challenge discriminatory laws. Second, activists who wish to limit the allocation of rights to gays and lesbians have used arguments regarding provincial rights to frame the debate as a question of constitutionality rather than of strictly human rights [...]