Serious Legal Problems faced by Lesbian, Gay, Bisexual, and Other Sexual-Minority People in Western Canada: A Qualitative Study
Background
Since the partial decriminalization of private same-sex sexual activity between two consenting adults in Canada in 1969, lesbian, gay, bisexual, queer, and other sexual-minority people have gained a variety of legal rights through Canada’s justice system. Prior to 1969, same-sex sexual activity between consenting adults was criminalized and could lead to indefinite imprisonment of those who engaged in these activitiesFootnote 1Footnote 2Footnote 3. Sexual-minority people were targeted, fired from public service jobs, and subjected to police surveillance and harassment, including raids on queer spaces, such as bars and bathhouses, for over three decades.Footnote 1Footnote 2Footnote 4Footnote 5.
While progress has been marginal, strides have been made towards greater legal protections and equity for sexual minorities in Canada, including the introduction of human rights and anti-discrimination protections, the removal of the ban on sexual-minority people serving in Canada’s military, improved spousal and parental rights, and the legalization of same-sex marriage nationwide in 2005Footnote 2Footnote 3Footnote 5Footnote 6Footnote 7. Many of these advances in sexual-minority rights have come directly through appeals to Canada’s justice systemFootnote 3Footnote 6Footnote 7. However, the limited existing evidence suggests that sexual-minority people still face serious legal challenges in Canada, including in health and social services, employment, housing, immigration, family law, and criminal justice.
Barriers and discrimination within various health systems for sexual-minority people include negative experiences within, and systemic exclusions from, healthcare settings that contribute to unmet health needs relative to heterosexual populationsFootnote 8Footnote 9. Sexual-minority people report disproportionate burdens in access to mental health services, which frequently fail to acknowledge experiences of marginalization as drivers of mental distressFootnote 10Footnote 11. Sexual-minority youth and sexual minority people living in remote areas of Canada are particularly vulnerable to discrimination in health and social servicesFootnote 12Footnote 13Footnote 14. Finally, gay, bisexual, and other men who have sex with men also continue to be barred from blood donation if they have had any kind of sex with another man in the last three months, while transgender donors continue to be screened for eligibility based on their sex assigned at birth unless they have undergone gender affirming bottom surgery, regardless of how they gender identify. Both policies are viewed as discriminatory and outdated according to the scientific consensus on the transmission of human immunodeficiency virus (HIV)Footnote 15Footnote 16.
In the workplace, sexual-minority people continue to face discrimination and fewer opportunities for job advancement despite the existence of federal anti-discrimination protectionsFootnote 17. Research demonstrates that sexual-minority people are more likely to report discrimination and violence in the workplace, including within the Canadian Armed Forces and police institutions, which undermine their mental well-being and work-related outcomesFootnote 21Footnote 22Footnote 23Footnote 24. Furthermore, multiple studies have shown that sexual-minority men typically earn less than their heterosexual peersFootnote 17Footnote 18Footnote 19Footnote 20.
Discrimination in access to housing continues to be an issue for sexual-minority people, with sexual-minority youth and adults over-represented in homelessness ratesFootnote 25Footnote 26Footnote 27Footnote 28. Sexual-minority-specialized housing programs in Canada are scarce and barriers – including discrimination and heterosexism – persist in access to the shelter system for sexual-minority people, who report experiences of verbal assault and physical violence on the basis of their sexual identitiesFootnote 29Footnote 30. Low-income sexual-minority people complained that work-related stress can put them at risk of food insecurity and unstable housingFootnote 10.
Sexual-minority people immigrating to Canada face obstacles before, during, and after the immigration process. Widespread cultural biases embedded in legal decision-making during the process of accessing protected status on the basis of sexual discrimination impose conformity to Eurocentric definitions of queerness. The Canadian legal system continues to place a heavy burden on sexual-minority refugee claimants of colour who do not adhere to locally normative expressions of sexual diversity, and who must often rely on legal consultants or support workers for guidanceFootnote 31Footnote 32Footnote 33. Under this framework, claims to sexual-minority status that do not reflect stereotypical sexual-minority appearance, cultural participation, or sexual openness are erroneously appraised as fraudulentFootnote 31. The ethnocentrism of the Immigration and Refugee Board of Canada is further manifested in its over-reliance on country-level information to assess the severity of asylum seekers’ reported violence in their home countries. That can erase asylum seekers’ individual experiences, constitutes imperfect evidence for credibility assessments, and perpetuates stereotypical assumptionsFootnote 34. Sexual-minority migrants face additional exclusion and lack of representation when accessing settlement services in CanadaFootnote 35.
Despite advancements in Canada’s legal recognition of same-sex relationships, sexual-minority people still experience barriers in family law. While Canada’s legalization of same-sex marriage nationally in 2005 represented an important step forward in sexual-minority people’s attainment of equal rights, equally valid relationship structures such as consensual non-monogamy and polyamory remain unrecognizedFootnote 36, and polygamy remains a crimeFootnote 37. These relationship structures are common within sexual-minority communities; for example, 3.8 percent of all participants in Community-Based Research Centre’s (CBRC) Sex Now 2019 Survey of sexual-minority men reported being in a relationship with more than one person, while 39.0 percent of participants in a relationship reported their relationship structure as non-monogamous. Furthermore, despite the existence of anti-discriminatory legal protections for sexual-minority people in adoption rights, sexual-minority people continue to experience discrimination in the adoption process. Adoption workers’ lack of cultural competency training and minimal exposure to sexual-minority issues, in addition to deep-rooted heteronormative perspectives on parenting, can compromise sexual-minority people’s adoption requests and experiencesFootnote 38Footnote 39.
Additionally, sexual-minority people continue to face discrimination and violence from police and the criminal justice system. Nationally, sexual-minority people experience higher rates of recurrent criminal victimization relative to their heterosexual counterpartsFootnote 40 and report elevated experiences of police harassment and inaction, especially among sexual-minority people of colour, which enables the persistence of violence targeting these communities and is a source of violence in and of itselfFootnote 41Footnote 42. The recent handling of missing persons in Toronto’s Gay Village serves as a particularly pertinent example of the lack of value law enforcement places on the lives of queer men of colourFootnote 43. While more research is needed in this area, existing police-reported data also suggest that the prevalence of intimate partner violence (IPV) among sexual-minority couples is proportionally similar to that of their heterosexual counterparts, but that law enforcement officers are unprepared to address IPV among gay and lesbian couples, treating it less seriously than IPV within heterosexual couplesFootnote 44Footnote 45Footnote 46.
Sexual-minority people may also be over-represented in the prison system as offenders. Data from the United States has shown disproportionate rates of incarceration among sexual-minority people, and while comparable Canadian data is sparse, the existing data indicates that sexual- and gender-minority people may also face disproportionate incarceration ratesFootnote 47. For example, a study of police interactions among youth in three British Columbian cities found that non-binary participants were more likely to be handcuffed/arrested compared with young womenFootnote 48. Specific Canadian laws have disproportionate impacts on sexual-minority people. Until 2019, Canadian law discriminated against sexual-minority people by enforcing a different age of consent for anal sex, although the law was challenged and struck down several times before this legislative changeFootnote 49. Other examples of the criminal law’s disproportionate impacts on sexual-minority people include the ongoing criminalization of the non-disclosure of HIV status for people living with HIV, a population in which gay men and trans women continue to be greatly over-representedFootnote 50Footnote 51Footnote 52, and the persistent criminalization of sex workFootnote 41Footnote 42. Given these persistent challenges, it is unsurprising that sexual- and gender-minority people have also been at the forefront of advocating for and theorizing about decarceral and restorative justice frameworksFootnote 53Footnote 54.
In sum, homophobia, discrimination, and violence against sexual-minority people persist in Canada across multiple spheres of life despite human rights protections and other recent legal gainsFootnote 2Footnote 55Footnote 56Footnote 57Footnote 58Footnote 59. This report aims to generate additional knowledge about the legal problems encountered by sexual-minority people in Canada today and the barriers they face in accessing justice. Qualitative methods, and semi-structured interviews in particular, are a powerful approach to understanding these complex issues because they provide insight into the nuances of interviewees’ lived experiences and the broader social contexts in which these experiences occurFootnote 60Footnote 61. Building on this existing body of literature, this report qualitatively explores the following research questions among sexual-minority people in British Columbia, Alberta, Saskatchewan, and Manitoba: 1) What types of legal problems have sexual-minority people experienced in the last three years?; 2) How have sexual-minority people attempted to resolve their legal problems?; 3) What barriers have sexual-minority people experienced during their attempts to resolve their legal problems?; and 4) What has been the impact of these problems on sexual-minority people?
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