Vol. 10 No. 8 (August 2000) pp. 467-468.

QUEER JUDGEMENTS: HOMOSEXUALITY, EXPRESSION, AND THE COURTS IN CANADA by Bruce MacDougall. Toronto: University of Toronto Press, 2000. 360 pp. Cloth $60.00. Paper $24.95.

Reviewed by Miriam Smith, Department of Political Science, Carleton University.

Bruce MacDougall, a member of the faculty of law at the University of British Columbia, has written a substantial and interesting book about the ways in which homosexuality has been dealt with in Canadian courts from 1960 to 1997. The central concern of the book is with the ways in which judges have constructed and reacted to homosexuality.

In a sense, the timing of the publication of this book is unfortunate. In recent years, the Supreme Court of Canada has heard a string of important lesbian and gay rights cases such as VRIEND (1998) and M v. H. (1999). In VRIEND, the Court found that Alberta's human rights code was unconstitutional under the Canadian Charter of Rights and Freedoms because Alberta did not include sexual orientation as a prohibited ground of discrimination. In the more important M v. H case, the Supreme Court upheld the right of a lesbian to sue her partner for support upon the breakdown of a lesbian relationship. Canadian courts, using section 15 (equality rights) of the Charter have played an important role in forcing governments to deal with lesbian and gay rights issues. The post-1997 public policy changes have been substantial, culminating in the federal government's Bill 23, which passed in 2000. Bill 23 recognizes same sex spousal relationships in federal jurisdiction. Lesbian and gay activists, because of its ban on same sex marriage, will challenge this, too.

Because of the relatively sweeping legal and public policy changes of the last few years, the timing of MacDougall's book risks leaving the reader with an unduly pessimistic picture of the "progress" or "lack of progress" of lesbian and gay rights cases before the courts. For example, MacDougall opens his book with a discussion of the 1995 EGAN case, which has now been superseded by other legal and policy changes. However, despite the problem of keeping up developments in a rapidly moving legal field, MacDougall's contribution will be of enduring value. Rather than focusing on wins and losses, MacDougall is interested in the assumptions that judges have used when they decide cases that concern homosexuality. This approach allows MacDougall to demonstrate the extent to which progress has occurred, as judicial attitudes have shifted, but, also, to present an important caution to lesbian and gay rights advocates and litigants about the enduring homophobia of much judicial thinking.

MacDougall argues that, when judges judge, they are making important and powerful statements about the moral standards of society and that judges have an activist role to play in this sense, whether or not they are aware of the import of their

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activism. Here MacDougall uses the term activism not to mean that judges have power against other branches of government, but simply to mean that judges are actors with choices, who may shore up homophobia and prejudice or who may choose to advocate humanity and equality. MacDougall finds a series of assumption behind most judicial thinking about homosexuality in the Canadian cases over the period he examines including the idea that homosexuals are obsessed with sex, the association of homosexuality with violence, the requirement that homosexuality "should be desexualized as much as possible to make it palatable" (p. 69), and the consistent application of a double standard to homosexual and heterosexual relationships. Of course, in recent cases on relationship recognition, it is precisely this double standard that is at legal and political issue.

MacDougall's work also sheds light on the legal and political dilemmas of intersectionality. One of the fascinating points in MacDougall's book is his finding that women judges rarely make negative judgments about homosexuality. Similarly, cases concerning lesbianism are often defined in court as being about the femaleness of the person, rather than sexual orientation (with the important exception of cases involving children). MacDougall's work follows in the footsteps of other Canadian legal scholars such as Mary Eaton and Nitya Iyer in showing how other characteristics of gay men and of women, particular race, are excised from the legal picture.

The main defect of MacDougall's point, from the perspective of political science approaches to the study of the courts, is that MacDougall does not explore the role of groups, both pro and anti-lesbian and gay rights, in the litigation that he examines in the book. Such groups have played a major role in litigation over the period he examines and, indeed, many of the litigants themselves have been lesbian and gay rights activists in some way or another. This overtly political dimension is missing in his presentation. Furthermore, MacDougall assumes that judges' attitudes are an important causal variable in explaining legal decisions. Throughout the book, one gets the sense that MacDougall's work is both an account of judicial decision-making and also a plea to judges to judge more reflexively. Although judicial attitudes are obviously important, MacDougall's own survey also makes clear that judges pay attention to 'community standards' and at least some judges are well aware that 'community standards' respecting homosexuality are changing. The connections between judicial decision-making and social attitudes could have been at least mentioned as another dimension of the presentation of the cases, even if, as a legal scholar, MacDougall did not wish to undertake a sociological or political analysis. As it is, one gets the sense of a series of legal cases that occurred in courtrooms that were cut off from the public policy developments of the other important branch of Canadian government (the executive) and from the broader contestation over lesbian and gay rights in Canadian society as a whole that has developed since the advent of the feminist and gay liberation movements of the late sixties and early seventies.

That said, MacDougall's well written and comprehensive survey will be of interest to those who are concerned with lesbian and gay legal and political issues in Canada, as well as to those who are interested in uncovering and exploring judicial expression about homosexuality in a comparative legal context.