When Silence Is no Longer Acquiescence: Gays and Lesbians under Canadian Law

Abstract

AbstractThis paper shows the role of the courts in the advancement of gay and lesbian rights to be restricted to intervening when three conditions are present: after legislation has been felt by minority groups to be deficient; where stating principles rather than implementing them is involved, and when legislative modification is difficult to achieve because amendment of a rigid constitution is out of question, or in parts of the country where political conservatism has a similar effect. Decisions are grounded on equality, while other values put forward by gays and lesbians such as dignity, recognition, respect of identity and difference and social concerns will be endorsed only by dissenting judges, unless the majority is sure that their mention will have no practical consequence. However, this modest victory was not achieved at the cost of representing gays' and lesbians' interests or values as common with those of the dominant heterosexual majority. On the contrary it seems that the affirmation of the “right to difference,” centered on diversity, and the openness of this constructed identity might have led to a chain reaction starting with the evolution of public opinion as a consequence of lobbying and education by the gay/lesbian community, proceeding to create a new balance of power, more favourable to the gay/lesbian minority, and finally reaching more respect from courts and legislatures alike.