This book is concerned with expression of and about homosexuality and how the courts have been implicated in that expression. Its subject is the way in which judges in Canada, particularly in the period 1960 to mid-1997, have constructed homosexuals and homosexuality and how they have betrayed their assumptions about both in their decisions. It also examines the courtsʹ reaction to the expression of others about homosexuality, in particular, their reaction to homophobic expression and instances of outing. Such reaction is as revealing of judicial attitudes, as is the courtsʹ direct expression of opinion.

Queer Judgmentsis not about the...

Words and meaning are everything in the law. Lawyers have the reputation of being nitpickers and difficult conversationalists because of their obsession with precision (or, more usually, imprecision) in language. Terminology is always important, legally.¹ In dealing with the topic of expression in the legal context, terminology becomes particularly important. If a judge talks about homosexuality or homosexuals or gays or lesbians or sexual orientation, what does he or she mean? In this chapter, rather than attempting to provide anything approaching conclusive meanings, I want to explore the ambiguities and contingency of these terms. It is as important in legal...

While there is today much less overt censoriousness and censorship of homosexuality and homosexuals and of expression by and about them, even compared with a decade ago, there remains a constant and consistent affirmation of the otherness of homosexuality. As I discussed in the previous chapter, assumptions are made about homosexuality that would not be made in the equivalent heterosexual context. Homosexuality is feared and exoticized, stereotyped and eroticized. It is kept hidden, while knowledge about it is simply assumed. These attitudes are themselves a form of censorship of expression about homosexuality and certainly constitute a censoriousness of homosexuals and...

The most important factor in the perpetuation of homophobia and marginalization of homosexuals, including self-hatred in homosexuals, is the intense indoctrination in heterosexism that children experience, a great deal of it in educational institutions. Society loses much of its rationality when it comes to homosexuality and children. Children are ʹshelteredʹ from contact with homosexuality and homosexuals, who are presumed to prey on them.¹ The sheltering of children from homosexuality may make them more vulnerable to those few homosexuals who do prey on children. One man writes: ʹFor years I grew up thinking I was the only person in the world...

This chapter examines instances of hateful, hurtful, or hostile expression directed against homosexuals, focusing on the judicial response to it and thus concentrating on instances that have found their way into the court. Homophobic expression can take many forms, which are often thought of as unrelated. One of the problems in assessing the judicial response to this expression is the disinclination of the judiciary (and others) to recognize that the various forms are somehow linked and – with the possible exception of physical attacks on homosexuals – to treat them primarily as expressions of homophobia. The homophobic character of hate...

Among the most talked about subjects is sex. Whether in an explicit form or in the indirect way of discourse about weddings, babies, and ʹboyfriends,ʹ we are obsessed by the subject. Much of this discussion centres on the sex lives and proclivities of others and occurs without their consent. Michel Foucault has studied how, over the past three centuries, westerners have been drawn to the task of telling everything about their sex.¹ He argues: ʹWhat is peculiar to modern societies, in fact, is not that they consigned sex to a shadow existence, but that they dedicated themselves to speaking of...

Judicial attitudes are tenacious but they can change. The biggest obstacle to change in attitudes is the failure to recognize the presence of the attitudes in the first place. The problems discussed in this book have largely consisted of the unintentional application by judges of negative or inferiorizing stereotypes to homosexuals or to situations involving homosexuality. Judges ought to be made aware that the situation exists. This book has shown a remarkable persistence of judicial attitudes and assumptions over approximately forty years. Some evidence of the judicial ability to change in this respect is apparent in recent cases, making recent...