Equal Rights for Gay Families: Revolution or Counter-revolution?

Brian Mossop. Canadian Dimension. Volume 27, Issue 4. August 1993.

The United Nations has proclaimed 1994 International Year of the Family (IYF), and as might be expected, the federal Department of Health and Welfare has created suitable bureaucratic structures to assist with the observances. The Federal Secretariat for the IYF and the Canada Committee for the IYF have already produced some literature, including a helpful diagram showing our planet surrounded by eight fluffy clouds—one each for the nuclear family, the conjugal family, the extended, the modified—extended, the single—parent, and patrilineal and the matriarchal family.

The eighth cloud is blank, but this is obviously a printer’s error. The eighth cloud must represent the gay and lesbian family. In 1985, my lover’s father died and I applied for a day of leave to attend the funeral. No, said my supervisor. It says right here in the collective agreement that you can only get special bereavement leave if the deceased is a member of your immediate family. If he were the father of your common—law spouse you could go, but the definition of “spouse” here clearly specifies “of the opposite sex.”

She offered me a day of special leave at management’s discretion, but I wanted family bereavement as a right. So I took a day of vacation leave, then grieved and of course lost—after giving an impassioned but useless speech to an Assistant Deputy Minister in the federal department where I provide translation services for Her Majesty’s servants. I went to the Canadian Human Rights Commission and laid a complaint—that I had been discriminated against on the basis of my family status. This term is not defined in the Canadian Human Rights Act, so a Commission Tribunal first had to decide whether Ken and I were a family. In 1989, the Tribunal decided that we were, and that I had indeed suffered discrimination. The Tory Minister of Justice appealed (not Kim Campbellroney at the time, though she became Minister a few months before the appeal was heard). In 1990, the Federal Court overturned the Tribunal’s finding. The Human Rights Commission appealed to the Supreme Court, which in February 1993 upheld the Federal Court by a vote of four to three.

Special privileges for heterosexuals had been confirmed. Real Women of Canada, the Salvation Army and the Pentecostal Assemblies of Canada—all of which had intervened on the government’s side in the case—could sleep soundly.

Media Exposes Issues

Or could they? Despite the ruling, the idea of gay and lesbian families had been given quite an airing in the print and electronic media. Way back in the early 1970s, the gay movement in Canada decided that posing gay issues in the form of legal cases, or demands for changes in the law, was one of the best ways of ending our invisibility and the silence that traditionally surrounded us. So we started working to get “sexual orientation” in human rights codes and union contracts. A 1978 raid on a gay newspaper which had published an article on pedophiles was turned into a freedom—of—speech case. A 1981 raid on gay bathhouses in Toronto became a right—to—privacy case.

Media presentation of such cases creates public debate about homosexuality. More importantly, teenage gays and lesbians—our next generation—hear the phone—in shows, read the newspaper articles and realize there’s a gay community in which they can lead a full life. They see older gay men and lesbians on TV and they’re encouraged to come out of the closet. Coming out is the central event in the life of a gay person, and making it easier is the single most important goal of gay activism. The actual legal details of a case, and even its outcome, are in this sense secondary.

Defining Family

We will win on family status eventually. (It took 15 years to get the Ontario Human Rights Code amended.) The writing is on the wall, as the “family values” folks can see when they look, horrified, at social trends. At some point, the law will have to change to reflect the new realities. Trying to legally distinguish a gay couple from a common—law heterosexual couple with no children is simply not possible without an irrational appeal to homophobia. The Supreme Court judges didn’t even try—the majority simply avoided the issue (I’ll spare you the technical details). A judge of the Federal Court, however, managed to come up with this gem of reasoning:

It seems to me that what was done by the (Human Rights) Tribunal was to take some attributes usually ascribed to families, such as mutual love between members, mutual assistance, joint residence, emotional support, sharing of domestic tasks, sexual relations, and treat them as being the essence of the concept itself being signified. There is a difference between being, in certain respects, functionally akin to a family and being a family.”

So having the functions of a family is different from having the status of a family!

One of the groups that intervened in the case on my side—the Canadian Disability Rights Council—was specifically interested in getting a functional definition of family from the courts. They want a disabled person and her or his live—in caregiver to be eligible for family benefits.

And benefits are the central issue here. Certainly the cultural aspect is important: which forces in society get to “own” the word “family”? Should gays imitate straights and promote coupledom? However, the reason this whole issue has become so popular in the gay and lesbian community is not ideological but economic. The state and employers distribute various benefits on the basis of family status. Pension plans, medical plans, tax benefits—all have provisions that refer to family. Even my day of bereavement leave represents the value of one day of annual holidays not taken.

Internal Debate

There has been considerable debate in the gay and lesbian community about the value of working for what is most commonly called “spousal rights.” That debate hinges precisely on the relative importance accorded the cultural and economic aspects of the issue.

Should we, lesbians and gays, imitate the traditional heterosexual family; an institution which does not appear to be in the peak of health these days? One of the great things about the gay community, I’ve always thought, is that it’s not couple—centred. There are gay community organizations and businesses, and then there are gay and lesbian individuals. There’s no expectation that once you’re thirty or so, you ought to be “married.” In a recent Canada—wide survey on gay men’s sexual habits, only one in five reported being members of an ongoing relationship. (The corresponding figure among lesbians may be somewhat higher.)

Some of those uncomfortable with the struggle for spousal rights believe it represents a threat to our community’s different way of organizing relationships; with couple membership secondary to membership in the community. So what mainstream conservatives see as a revolution against the family is also opposed by many gays—as a cultural counter—revolution.

And what about marriage? A great many activists are shocked and appalled at the thought of gay marriage, especially if the ceremony servesasa stamp of approval for monogamy. Many in our community take the view that, as Ken once put it, monogamy is theft. No one should build a fence around someone’s body and post a “hands off” sign.

I, too, find the idea of gay marriage repellent, but as a gay rights campaigner my aim is to increase the freedom of everyone in our community to do whatever it is they want to do. If Tony wants to join the Armed Forces, or walk down the aisle in a long white gown and swear to be true to Frank forever, he should be able to.

Nevertheless, opponents of the spousal rights campaign are quite right when they say that the result of a successful campaign could lead to the exclusion of those who aren’t in couples, or put pressure on uncoupled individuals to change their ways. There’s a risk in every campaign to change the law.

Alternative a Major Task

But opponents also have to answer the following question: how do you propose to provide the income support which is currently available through payouts to family members from employers or the state? If you won’t support family benefits for existing gay and lesbian couples and their children, then short of doing nothing, the only alternative is a long—term campaign to change income support policies for everyone in society.

In other words, the conditions under which employers and the state make payouts would no longer refer to family relationships. The payments would be made to individuals. Bereavement leave is a simple case. Every employee would be given, say, five days every five years to attend funerals. The identity of the deceased would be irrelevant. But working out similar solutions for all current family benefits would not be so easy. What about non—economic spousal rights such as prison or hospital visitation? Should we campaign to have these institutions accept an open—door policy where every inmate or patient could designate one person who would be allowed in automatically? And what do opponents of gay marriage propose to people whose lovers are not citizens? A campaign to change the Immigration Act so that everyone is entitled to bring in one friend from abroad? Again, a major task.

The campaign for spousal rights for gays and lesbians can be seen as a manageable substitute for much more ambitious schemes such as replacing family benefitswith individual benefits.

However, the campaign is not necessarily as narrow as it might sound if we consider only the number of immediate beneficiaries. Linking cultural and economic considerations

My own court case was often mistakenly referred to as a “spousal rights” case, but that was really the government’s view of it. The government claimed I had to prove that Ken’s father was my father—in—law in order to get bereavement leave. I claimed I was denied the leave because the definition of “Family” in the collective agreement was too narrow. I was not trying to fit myself into the traditional definition but to replace that definition with a radically different one.

I argued—or rather the Human Rights Commission and groups like the National Action Committee of the Status of Women, which intervened on my behalf, argued—that “family” has to be defined in terms of how members of a household function (sharing finances and housework, providing emotional support and so forth). It should no longer be defined in terms of legal statuses like “spouse.” The law should recognize families in the same way that neighbours, friends and workmates do; not by asking to see a set of marriage and birth certificates, but by observing how the members relate to each other.

One possible outcome of a successful campaign would be not just securing benefits for those gays and lesbians who most closely resemble the traditional heterosexual couple, but also a changed legal definition of the family; one that would enshrine in law a minor cultural revolution. Letting gays and lesbians in could help change the “legal” family into one that more closely resembles the real diversity of households that people choose to form.