Civil Liberties, Sexuality and the Law


In 1997, William B. Rubenstein published a second edition of his well-regarded treatise, Cases and Materials on Sexual Orientation and the Law. In the same year, William N. Eskridge, Jr. and Nan D. Hunter released their casebook, Sexuality, Gender, and the Law. Both books have been heralded as pathbreaking in their efforts to define an emerging subject of contemporary relevance and thereby to frame the current debate. With the publication of Professor Donald G. Casswell’s monumental work Lesbians, Gay Men, and Canadian Law in November, 1996, the Canadian discussion of the legal rights of lesbians and gay men has reached a level of sophistication commensurate with its importance.

Casswell’s is the first comprehensive text on the subject of law and sexual orientation in Canada. To state that this text is thoroughly researched would be an understatement. Indeed, Casswell’s work is an encyclopedia in fifteen chapters, affording the reader a detailed analysis of important legislation and jurisprudence, as well as an exceedingly thoughtful review of the social and political context of the issues relevant to this topic. Throughout the book, the author combines his passion and eloquence as an advocate for equality with careful attention to detail as a scholar. The result is a truly awesome scholarly product which will serve as a valuable and indeed essential resource not only for legal practitioners and students, but also for business and governmental leaders who, in the future, will have to consider the rights and concerns of lesbians and gay men when designing or planning for their workplaces and communities. Lesbians and gay men, deprived of socio-legal rights conferred by heterocentric laws and processes in Canada, will also find this book of interest and even a source of hope. Casswell’s book details levels of exclusion for a growing segment of Canadian society. It presents a framework for principled legal decision-making which, if implemented, will lay the foundation for new policies of fairness and inclusion.

Casswell’s central argument is that so long as Canadian law discriminates against lesbians and gay men, both the law and the socio-political structures in which it operates legitimize and thus perpetuate heterosexism and homophobia. Instead of preserving the status quo in this area, law can help eradicate heterosexism and homophobia by ensuring that all Canadians, regardless of sexual orientation, receive equal treatment.

Professor Casswell has, with the publication of Lesbians, Gay Men, and Canadian Law, established himself as the foremost authority in this vital area of human rights law in Canada. Joining William Eskridge, Nan Hunter and Will Rubenstein in the United States, he has embarked upon a “dangerous venture;” a venture whose purpose is not only to commence a dialogue on the development of a distinct gay and lesbian culture, but to sensitize all citizens of the transnational community to the need for social, political, legislative and judicial accommodation of fundamental rights of association and privacy for all members of society. It remains to be seen whether this venture can create access to the “traditional” type of marriage for same-sex couples that Casswell considers the “inner sanctum of heterosexual privilege.” Indeed, casting aside what Justice Burger called “millennia of moral teaching” will not be an easy task. Even if full acknowledgment of equal rights for lesbians and gay men cannot be achieved, however, gay rights activists may hope for the adoption of legislative approaches, such as those undertaken in Hawaii, where homosexual partners qualify for the same health-care benefits available to married couples.” Acceptance of this approach would truly be a giant step toward achieving sexual equality for lesbians and gay men.

Professor Casswell recognizes the fragility of the advances achieved by lesbians and gays in recent decades in Canada; his tone is thus one of cautious optimism.’ Casswell expresses the hope that his book wiU serve as an instrument for charting a level of social and legal progress which, in turn, will allow Canadian Law to “not only . . . protect lesbians and gay men against discrimination but also to positively recognize lesbians and gay men as equally worthy along with heterosexuals.”‘ But Casswell will not besatisfied with half measures:

In the absence of complete acceptance of lesbians and gay men asequals, Canadian society and law would merely replace repression of and discrimination against lesbians and gay men with a form ofalienation. The objective of all Canadians and of Canadian law should instead be liberation of lesbians and gay men. Lesbian and gay rights are the vehicle to achieve equality for lesbians and gay men, which will in turn lead to freedom for lesbians and gay men .

Suggested Reading

This is an excerpt from Kenji Yoshino’s new book, Speak Now: Marriage Equality on Trial. In his book, Professor Yoshino explores the Hollingsworth v. Perry trial, which he calls “one of the most powerful civil rights trials in American history.” Professor Yoshino

In this article, I argue that, because reproductive cloning may offer the LGBTI community the chance to have genetically-related children, bans on federally funded research that would help refine and ensure the safety and efficacy of these procedures unconstitutionally deny

 State Laws Argued in Federal Court Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997):  The Plaintiff, Ms. Robin Shahar has received a job offer from the Georgia Attorney General’s office.  When the Attorney General learned of Ms. Shahar plans