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Out law

|Written By Denise Balkisoon

At last, it’s warming up — time for patios, sandals, and GLBT Pride parades. For those who keep an eye on the legal side of things, every year seems to bring more for Canadian queers to celebrate. The country has come a long way in recognizing the rights and freedoms of gay and lesbian people: in 1965, Everett George Klippert was arrested for acknowledging his homosexuality to police officers; not 50 years later, in 2003, same-sex couples won the right to marry across the country. These victories are especially sweet for lawyers, since the profession hasn’t entirely shaken its rep as a conservative field that raises an eyebrow at minorities.

Not only is the law advancing justice and equality for all queer Canadians, gay and lesbian lawyers, as individuals, seem increasingly satisfied with the intersection of their personal and professional lives.


“I’m happy to report that I haven’t experienced any discrimination,” says Laura Marr of her experience articling and working in litigation for Halifax’s Stewart McKelvey, one of the country’s 20 largest firms. Called to the bar in June 2007, the 33-year-old describes herself as “an infant, in lawyer years.” Personally, she’s been with her partner for a decade, and the two got married in 2004, before having a baby a year and a half ago. Marr was out as a lesbian at law school; when her wife gave birth, she took seven weeks parental leave and was given a gift by her firm.


Although civil rights didn’t drive Marr’s decision to practise law, gay lawyers often find themselves at the leading edge of the legal wave. Another recent issue heating up provincial courts concerns lesbian co-parents: for years, non-biological mothers have had to go through a second-parent adoption process, leaving many feeling less valued and legally unsafe. Marr and her wife, along with two other couples, joined together with the Nova Scotia Rainbow Action Project to challenge the province’s Vital Statistics Act. The group won the right for two women to be listed as parents on a newborn’s birth certificate (providing the sperm donor is anonymous — another battle coming soon to a court near you). “This sort of thing isn’t why I became a lawyer,” says Marr, “but my partner and I did discuss it for a long time, and we decided that with our skill set and resources, we should do it. Some of the doors are easier to open for us.”


Of course, expertise in the law wasn’t enough protection for gay lawyers to feel safe coming out in years gone by. The late Ian Scott is a famous example — a scion of entrenched and respected political families (he had provincial premiers as great-grandfathers on both sides), Scott was twice elected MPP in Ontario, became attorney general in 1985, and even extended the Charter of Rights to include sexual orientation in 1986. Yet he remained in the closet for all of his professional life. In 1990, he was chased through the hallways of Queen’s Park by a reporter demanding to know his sexual orientation, a violation of personal privacy that was abhorrent then, and even now is an unacceptable intrusion. Scott only publicly acknowledged he was gay in 1993, when his partner of decades, Kim Yakabuski, died of complication from AIDS. “The obituary notice I wrote for him was the first official acknowledgment of our relationship,” Scott wrote in his 2001 memoir, To Make a Difference.


“There were only two types of gay lawyers when I started,” says Doug Elliott. “The old closeted guys like Ian Scott, who were respected but sad, and radical types who were seen as the fringe. There were no ‘normal’ gay lawyers.” Known in the legal world as R. Douglas Elliott, he’s probably Canada’s best-known gay lawyer, his career encompassing the battles over HIV-tainted blood, same-sex marriage, and the right for same-sex common law partners to access each other’s CPP benefits. Elliott has won numerous awards and accolades for his work, and in 1997 he started the Sexual Orientation and Gender Identity Conference of the Canadian Bar Association.


This summer, he is marrying his partner of two decades — yet Elliott, too, spent much of his career in the closet, deliberately leaving his gay activism off his resumé when he began articling in 1982. Although he was out to his family and living with his partner, he never mentioned his sexuality at work. When he wasn’t hired back to the insurance defense firm where he articled, Elliott was at first devastated. But then he began to think about what it would mean to work at a big, public law firm. “It takes an awful amount of psychic energy to remain in the closet,” he says. “You always worry about having one too many martinis. So I thought, the one person who will never fire me for being gay is me.”


In 1984, Elliott opened his own practice, now known as Roy Elliott O’Connor LLP. From then on, his career — and his life — reads like a gay history textbook. As his friends began to die of AIDS, he found himself torn between unrecognized partners and homophobic parents, spending his days attending funerals before negotiating ugly legal battles over everything from joint property to the ashes of the deceased. When the strain led to personal and professional burnout, Elliott began attending the Metropolitan Community Church with his partner and counts this as one of the great restorative moments of his life. It also drove him on to more activism.

“The idea that gay people weren’t entitled to be spiritual has been very destructive to our self-worth,” he says. And so he ended up representing the church in the same-sex marriage case M. v. H., which he says is the “most challenging and most satisfying case I’ve ever been involved with.” Which isn’t to say that to be a gay lawyer fighting for gay rights doesn’t have its negative, or simply weird, moments. Standing in front of the Supreme Court, Elliott reflected on Thurgood Marshall, the black American lawyer who argued Brown v. Board of Education against segregated schools. “In some ways it’s humiliating,” Elliott says, “arguing that you deserve the same dignities as everybody else. Arguing that you are a human being.”


Despite the obvious gains, individuals still have decisions to make, and when (and if) to come out remains intensely personal. Edmonton’s Benjamin Evans chose not to reveal his sexuality in law school, when he was still coming to terms with it himself. At age 30, he told his family, and for the past six years has been out and practising tax law at the Edmonton office of Fraser Milner Casgrain LLP. “At age 21, it wasn’t even possible for me to consider being out,” he says. “I just didn’t feel comfortable.” Even now, he sometimes thinks that spending much of his teenage years feeling that something was wrong with him can affect his professional self-confidence. But he doesn’t believe that law or his fellow lawyers are to blame. One advantage of working for a big firm is that abundant financial resources allow for extracurricular diversity initiatives. Fraser Milner Casgrain, for example, sponsors the Toronto Out on Bay Street event, which brings in students from the University of Toronto’s Rotman School of Management for networking among GLBT professionals. “I feel relatively fortunate being where I am,” Evans says. “I’m surrounded by educated, professional people who focus on the work that I’m here to do.”


Others still prefer the small-firm environment. Two years ago, Winnipeg’s Sarah Inness and two partners launched their criminal defence firm, Campbell Gunn Inness. She found law school at the University of Manitoba “quite conservative,” which contributed to her decision to go out on her own. “I wouldn’t work somewhere that I couldn’t be myself,” says the 36 year old.


Location also makes a difference — SOGIC (the GLBT lawyers conference  at the CBA started by Elliott) is concentrated in major cities and doesn’t yet have an Alberta chapter. This means Evans in Edmonton can’t be a member at all, which is unfortunate, since Inness, like many others, says her membership has always been incredibly valuable, especially at the beginning of her career. Todd Bourcier, a Crown attorney practising in Northern Manitoba, was warned by his superiors that homophobia might be a problem when he took his job. In reality, the 18,000-person population of Thompson seems unfazed — which Bourcier attributes to an eclectic population made up of various groups, from transient Newfoundland miners to aboriginals to East Indian immigrants. “It would probably be different in a Southern Manitoba farming town, where the population is more stable,” he says. Still, he can’t wait to get back to his hometown of Winnipeg. “It’s very difficult to meet people in Thompson,” he says dryly.


For young associates setting their sights on the highest legal positions in the land, there are a few mentors to look up to. Ontario Court Justice Harvey Brownstone, a Family Court judge in Toronto, is the first out judge in Ontario. “I’m certainly not the first gay person in the upper echelons of the law,” he says. “The question is how open they were.” His appointment made bold headlines in the gay newspaper Xtra; since then, David Corbett was chosen to be a Superior Court judge in Ontario, and there are more than a handful of others across the country. When same-sex marriage was legalized in Ontario five years ago, Brownstone made it known that he would perform civil ceremonies in his chambers before and after office hours. Since then, he’s officiated at hundreds of couplings.


Now that Canada has got basic civil rights more or less under control, many of our lawyers are turning their gaze beyond national borders. Linguistic and ethnic diversity means that Canadian lawyers can often offer gay and lesbian groups in other countries assistance that respects various languages and cultural practices. Ralph Dzegniuk is an immigration and refugee lawyer at Toronto's Green & Spiegel Law Corp. The Polish immigrant has been living in the city for 12 years and, at first, thought that family law and advancing the case of same-sex marriage might be his career path. But by the time he began articling in 2003, those legal issues had already been settled. He also thought that he’d be at a small gay-owned firm, but instead ended up at one of the country’s oldest and largest immigration practices, another sign of how times have changed. “I think we pretty much have it made in Canada,” Dzegniuk says. Which is not the same for many of his clients claiming refugee status on the basis of their sexual orientation. Dzegniuk considers the Middle East, Southeast Asia, and Eastern Europe the most repressive areas of the world but has represented clients from all over the world. One of Dzegniuk’s clients, a man from Brazil, had been almost murdered by his family when he came out. But the refugee board in Canada said because Brazil as a country doesn’t have anti-gay laws on the book, the Brazilian was a victim of discrimination, not persecution. Dzegniuk lost the case, his only lost refugee claim. “That was very personal for me,” he says. “It’s pretty depressing.” He’s currently consulting for Toronto’s Persian GLBT association, which advocates for, and sponsors, refugees from Iran.


Advancing human rights abroad is also a project for Elliott, who has testified all over the world on same-sex marriage and works with Nepal’s Blue Diamond Society. He cautions Canadians — gay, straight, lawyers, and otherwise — against complacency. Out transgendered lawyers are still rare, for example. Attitudes toward sexuality have waxed and waned since the dawn of humanity, and there is always the possibility that hard-won rights could be rescinded.


This past January, for example, the Conservative government introduced bill C-10, an amendment to the Income Tax Act that would allow the Heritage minister to rescind tax credits for films and TV shows considered “offensive,” even if the projects had already been guaranteed money by other federal bodies. The Globe and Mail quoted Charles McVety, president of the evangelical group Canada Family Action Coalition, as taking credit for the amendment, saying that “films promoting homosexuality . . . should not receive tax dollars.” For the generation of queer lawyers that lived through the 1980s raids on gay bookstores like Vancouver’s Little Sisters and Toronto’s Glad Day, the bill harkens back to a darker time.


“Who’s to decide what’s offensive?” asks Clayton Caverly, a partner at Fraser Milner Casgrain’s Toronto office. The 48-year-old Caverly began his career in the early 1980s; though he wasn’t out of the closet when he first began, he now brings John, his partner of 14 years, to all of the big firm events.


“I think it’s significant that all of the progress in this country came through the courts,” says Brownstone. “It’s judges, not the government, and it’s been that way since the beginning.” Brownstone thinks Canada has to figure out the delicate balance between freedoms: how to accommodate the right to religion with the right to sexual orientation. “People are entitled to their religious views,” he believes, “but there are lawyers that are in the closet because they feel that a senior associate or a client wouldn’t want them practising because of a religious opposition to homosexuality. As a free and democratic society, we need to figure out how to strike that balance.”


Caverly notes the Harper government also introduced a motion to restrict government-funded court challenges under the Charter of Rights. This means that financially strapped minority groups could be restricted from pursuing cases against the government itself, rendering the Charter essentially useless for many of the people that need it most. As well, the age of consent for anal sex is still higher than vaginal intercourse, meaning that, in the eyes of the law, all sexuality is not yet exactly equal. “We’re a historical anomaly — the situation that we have in Canada right now has never been present anywhere in the world, at any time,” says Caverly. “If it’s just a question of laws, it could be reversed.”


So take stock, gay lawyers and allies: we have out judges across the land and the right to bridal registry. But far-flung compatriots might still need a leg up, and some people would still like to reverse hard-won battles fought by sharp minds. Enjoy your sunbathing and cocktails this summer — and if you’re at the Pride parade, remember that it’s not only about outrageous costumes and getting your groove on. 

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