Sexual Orientation and Legal Discourse: Legal Constructions of the “Normal” Family

Abstract

AbstractLegal method, or the way in which legal claims are processed, is an integral component of the law's authority to include, exclude and deny claims and experiences. This paper explores the issue of sexual orientation and the legal construction of family as it emerges in the decision of the Supreme Court of Canada in Egan v. Canada. The analysis includes a detailed consideration of the ways in which the Supreme Court of Canada incorporates assumptions about the nature of family life as a relevant factor in its assessment of the meaning of the word “spouse” under the Old Age Security Act. The process by which notions of the normal family become legitimized through legal discourse is deconstructed using the work of Mary Jane Mossman and Michel Foucault. Mossman develops an analytic framework which illuminates the ways in which legal method works to preserve the power of law and the illusion that law produces “truth.” Michel Foucault considers both the ways in which knowledge is produced as truth, and its integral links to power.