Are We 'Persons' Yet?

Are We 'Persons' Yet?: Law and Sexuality in Canada

Kathleen A. Lahey
Copyright Date: 1999
Pages: 512
https://www.jstor.org/stable/10.3138/9781442670952
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  • Book Info
    Are We 'Persons' Yet?
    Book Description:

    In 1929 women were declared ?persons? under the British North America Act. Seventy years later a similar move is afoot to establish constitutional personhood for lesbian, gay, bisexual, transsexual, and transgendered people.

    eISBN: 978-1-4426-7095-2
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-x)
  3. Preface
    (pp. xi-xxvi)
  4. Acknowledgments
    (pp. xxvii-2)
    Kathleen Lahey
  5. Chapter One ′Full Life,′ Human Rights, and Sexuality
    (pp. 3-28)

    How did Eva Szalánczky in Galgóczi′s book become a ′real person′? Caught in the Hungarian resistance to Soviet occupation in 1959 without the political aptitudes or sexuality necessary for survival, she lived a marginal life of false conformity mingled with ineffective criticism. Alone and too late to plan carefully, she decided that she had to escape from Hungary in order to live the life she needed. In keeping with older traditions of lesbian fiction, death caught her at the border.

    Muriel Rukeyser, who also grew up during the middle of the century, used poetry to describe the same choices Galgóczi...

  6. Chapter Two Chart(er)ed Rights
    (pp. 29-63)

    Originally documents with which new sovereigns attempted to reassure their subjects that their rule not only would be no worse than that of their predecessors, but would be better, ′charters′ evoke understandably mixed reactions from those who read them as both threat of continued domination and promise of change, perhaps even of liberation.¹

    Such were the mixed feelings with which queer communities greeted the chart(er)ing process in Canada, as disadvantaged groups lined up outside Parliament to lay their cases for recognition/inclusion/liberation in the Charter of Rights and Freedoms that was being drafted not exactly in consultation with the people, but...

  7. Chapter Three ′Demonstrably Justifying′ Discrimination
    (pp. 64-99)

    By the timeEgan and NesbitvThe Queen¹ came before the Supreme Court of Canada, many courts had agreed that ′sexual orientation′ was included in the open-ended language in section 15(1) of the Charter. However, most direct Charter challenges had failed anyway, and it was by no means clear just how far the presumed prohibition on discrimination on the basis of sexuality would extend once the Supreme Court of Canada had a chance to rule on the issues.

    On the doctrinal level, the successful Charter challenges were not very reassuring. Only a few cases involving ′personal rights′ had been...

  8. Chapter Four Human Rights, Charter Rights, and ′Legal Personality′
    (pp. 100-128)

    The human rights movement has existed in North America for at least two centuries, yet lesbian, gay, bisexual, transsexual, and transgendered people have begun to obtain recognition for their human rights only in the last few decades. Nor are the gains that have been made to date particularly secure. Despite the fact that increasing numbers of cases have been filed and won in recent years, cases such asVriendvAlberta¹ demonstrate that access to statutory and constitutional protections as well as to the full range of ′ordinary′ legal rights that surround and support ′full life′ are almost completely contingent...

  9. Chapter Five Are We ′Persons′ Yet?
    (pp. 129-173)

    By 1985, even after the Charter equality guarantees came into effect, lesbian, gay, bisexual, transgendered, and transsexual people were acutely aware that they were still not really full ′persons′ in law. The question I pose in this chapter is whether, now that we have seen well over twenty years of human rights activism and more than fifteen years of Charter discourse, we can now say that people who are characterized by their sexuality have become full ′persons′ in law yet.

    In my opinion, the answer is ′Not yet.′ Some important changes in some areas of legal doctrine have given some...

  10. Chapter Six Counting Queers
    (pp. 174-191)

    Legal concepts such as ′discrimination,′ ′equality,′ ′rights,′ or even ′legal personality′ ultimately have no real meaning. What most genuinely matters to most people is the emotional, spiritual, and material quality of life: well-being. Despite the proliferation of liberatory scholarship in the last few decades, there are no accepted measures of ′well-being.′ Indeed, so long as income disparities remain pronounced, ′well-being′ will mean very different things to people with different income levels. Other differences also affect what counts as ′well-being.′¹ In order to concretize the effects of denial of legal personality on the basis of sexuality, I have selected five aspects...

  11. Chapter Seven The High Costs of Being Queer
    (pp. 192-213)

    Categories of ′sex′ construct the ′hetero-′sex around which the ′heterosexual economy′ is organized. Based on the discursive use of ′women′ as units of value, and thus of exchange,¹ the ′heterosexual economy′ hierarchically commodifies and appropriates the sexual, productive, and reproductive labour of women as a sex class.²

    One of the most important dimensions of the ′heterosexual economy′ is the tendency to restrict the creation and exchange of value to heterosexual relations, and, conversely, the deployment of the category ′sex′ to deny the creation and exchange of value in ′homo′-sex relations. Thus the heterosexual economy simultaneously appropriates women′s productive capacities and...

  12. Chapter Eight The High Costs of Heterosexuality and the ′Queer Penalty′
    (pp. 214-239)

    The ′costs of being queer′ outlined in chapter seven are generated by a mix of ′private′ and ′public′ factors that mirror the dominant image of sexuality as binary and ′hetero.′ Some of those ′public′ forces are, of course, state/social actions expressed in laws. So-called private forces seemingly emerge prior to laws and thus are thought to (legitimately) form the ground on which laws are constructed.

    But the role of the state goes beyond merely mirroring the ground upon which ′private′ actors stand. As the state has become increasingly involved in material economies of allocation, production, and consumption, and in symbolic...

  13. Chapter Nine The ′Benefit′ Conundrum and the Politics of Exclusion
    (pp. 240-281)

    Not all legal provisions that apply to ′spouses′ or cohabitants confer benefits on them. Many such provisions actually burden in one way or another people who are in opposite-sex relationships. When these ′burdening′ provisions are pulled out and isolated from the vast array of provisions that give shape to and subsidize the ′heterosexual economy,′ the fact that they do not apply to same-sex couples can easily be made to look like legal policy already ′benefits′ queers in some ways that are not available to ′straights.′ For example, when Elaine Schachtschneider, a married woman, tried to claim the equivalent-to-married credit in...

  14. Chapter Ten The Costs of ′Incrementalism′
    (pp. 282-310)

    Significant changes in the social, legal, and economic status of lesbians and gays are beginning to take place, and the need for changes in the status of bisexual, transgendered, and transsexual people is coming to be recognized. The Ontario government added the category ′partner′ to the Substitute Decision Act and related statutes in the early 1990s, which gives same-sex partners the status of kin in medical emergencies. The Ontario Court of Appeal has now ruled that same-sex partners can apply for support under the provisions of the Family Law Act,¹ and that federal legislation denying survivor options to lesbian or...

  15. Chapter Eleven The Future of Queer Personhood
    (pp. 311-344)

    As this typical dictionary definition makes clear, the word ′person′ is usually used to distinguish human beings from non-humans. In law, however, ′person′ is used to classify human beings and other entities by rights and duties. Thus ′person′ can include a long list of non-human entities, including business corporations, territorial corporations, foreign corporations, partnerships, a county, or the estate of a decedent, at the same time that it can be used to exclude some human beings: ′Not every human being is necessarily a person, for a person is capable of rights and duties, and there may well be human beings...

  16. Notes
    (pp. 345-456)
  17. Index
    (pp. 457-474)