Dalhousie Law Journal


Mary Eaton


lesbian, gay, equality, discrimination, Canada, sexual orientation, law, civil rights, progressive hypothesis, regressive hypothesis, jurisprudence


The tale often told of Canadian law's advancement in the field of sexual orientation rights is simple but sublime: law has moved, however ploddingly and not without substantial prodding, out of an epoch of almost total repression, into an evermore enlightened era. Castigated by criminal law, pushed to the perimeter by administrative law, and ignored by human rights law, the "homosexual"' had once been law's quintessential "other." In recent years, however, legislatures and courts have increasingly been willing to recognize "homosexuals" as a constituency too long held down by the heavy hand of legal control. Most penal prohibitions against exercises of same-sex sexuality have been lifted, several bureaucratic marginalizations have been corrected, and the omissions of civil rights legislation are at long last on the brink of being universally condemned. The story enjoys special currency in the human rights arena. Here law has been cast as awakening to the justice of acknowledging "homosexuals" as a category of persons no less deserving of legal equality than other socalled "minorities," and lawmakers are finally authorizing the enumeration of "sexual orientation" as a prohibited ground of discrimination in Canada's wide range of civil rights instruments. This narrative, astoundingly enough, has circulated across divergent schools of legal thought: more or less the same story makes its appearance in the essentialized tropes of liberal reformers and in the anti-essentialist terms of poststructuralist radicals. One might refer to this chronicle of law's inexorable evolution as the "progressive hypothesis."