How Canada’s legal system reinforces heteronormativity
By Listen Chen, QCT Facilitator, QMUNITY
Last year Canada’s federal government applauded the anniversary of the “decriminalization of homosexuality,” referring to reforms of the Criminal Code in 1969 that led to what historians and activists describe as a partial decriminalization. But many people don’t realize that “homosexuality” per se was never criminalized in Canada. Rather, law enforcement used certain laws in order to disproportionately criminalize and target people who engaged in consensual queer sex or violated norms around gender expression in public.
There are still laws today that are used to target people on the basis of their consensual sexual activities and presentation in public. For example, it’s against the law in Canada to commit an “indecent act” in public, but “indecency” is not defined in the Criminal Code, leaving it up to the interpretation of police officers, the Crown, and judges, most of whom are cisgendered and straight, and all of whom operate in a structurally heteronormative system. The heteronormativity of Canada’s legal system is not just about how laws are written down in the books, but more importantly, how they are interpreted and deployed by police and courts.
Here are some examples of police and laws that disproportionately impact members of the LGBTQ2S community:
In 2016, the Toronto police carried out a multi-week sting operation that used criminal code and provincial laws, as well as bylaws to charge over 70 queer men for engaging in consensual sex in a park with a long history of serving as a cruising site.
This crackdown is part of a long trend of police raiding bathhouses and targeting queer consensual sex that occurs in places coded as public, like washrooms and parks. Historian and queer activist Gary Kinsman points out that police are more likely to tell people engaging in heterosexual acts to just “move along,” while investing significant time and energy into finding people engaging in queer sex in order to criminalize them and enforce the public as a heteronormative space.
Canada has some of the strictest laws on earth criminalizing HIV-positive people who do not disclose their HIV status to consensual sex partners.
Black and/or migrant men are especially impacted by the double burden of racism and HIV stigma, accounting for 20% of people who have been charged around HIV non-disclosure, but the subject of 60% of newspaper articles about HIV non-disclosure charges. HIV non-disclosure laws do not prevent the spread of HIV, increase stigma, disincentivize being tested for HIV, and perpetuate the criminalization of already marginalized groups.
Canada’s Protection of Communities and Exploited Persons Act criminalizes sex work, treating all sex workers as exploited victims and their clients as criminals.
While there is a dearth of data around trans people’s participation in sex work in Canada, two US-based surveys have identified that trans people, particularly Black or Indigenous trans people and trans women, are disproportionately represented in the sex work industry. Laws against human trafficking are also used to target sex workers, whose agency is erased by laws that treat them as victims.
We use the concept of “heteronormativity” to describe Canada’s legal system because it allows for a more expansive, nuanced understanding of how gender and sexuality are woven into the protection of the nation state. Heteronormativity reveals the marginalization of people who are queer and trans, while also making room for the connected experiences of other groups of people who are similarly targeted because of their violation of Canadian norms, but whom we don’t typically think of as being affected by homophobia or transphobia — for example, Black men living with HIV or migrant sex workers.
Analyzing how Canada’s legal framework enforces the criminalization and marginalization of people who do not fit into national gendered and sexual norms reveals that heteronormativity in Canada is scaffolded by colonialism, capitalism, and white supremacy. The LGBTQ2S communities most likely to be criminalized by Canada are, unsurprisingly, those who are also left out of a gay rights movement that centers the interests and experiences of white, cis, middle class or middle class-aspiring, gay men: people who are Indigenous, Black or racialized, migrants, sex workers, HIV positive, poor, and/or rely on public spaces in one way or another.
*1 Stop the Crackdown on Consensual Queer Sex by Gary Kinsman