Borderline Differences

When my spouse-partner and I cross between Canada and the United States, it is always obvious which direction we are travelling. Arriving at Toronto’s Pearson airport, we are welcomed as a couple, with one customs card, by a friendly agent who wishes us a good holiday. Coming back home, but in the airport’s U.S. pre-clearance area, he and I are separated by nationality and not even allowed to be a household for customs purposes, meeting again once we are safely through security.

More than border protection separates Canada from the United States on matters of same-sex relationships, David Rayside argues in his new book, Queer Inclusions, Continental Divisions: Public Recognition of Sexual Diversity in the United States and Canada. Director of the Mark Bonham Centre for Sexual Diversity Studies at the University of Toronto, Rayside has written a thorough and well-researched study of the politics of sexual diversity in the United States and Canada. He focuses on three hot-button social issues: recognition of same-sex relationships, parenting and schooling.

I should first state my biases. Rayside’s use of the economic term “neoliberal” may accurately describe the Harper government’s approach to the economy. But it adds little meaning to his solid analysis and majestic treatment of the legal and political history of gay, lesbian, bisexual and transgendered rights in Canada and the United States since the gay rights movement began in these three important areas. As a member of the well-off white male patriarchy—like Rayside—and an international development practitioner, I might be expected to bristle at the term neoliberal; however, the indiscriminate use of a few pejorative throwaways like this, and occasional hyperbole, are bumps in the road of the author’s otherwise thoughtful and carefully presented narrative.

My second stumbling block betrays my age. Until I was an adult, the term “queer” was a demeaning term of derision and insult. Even now it is used mainly by the young who take it as a term of power, a term that shocks, not knowing how it grates on the ears of many of us who had to be a lot more careful about displaying our sexual orientation to strangers. We remember a less happy time when GLBT visibility and rights were not so taken for granted, at least in Washington DC and Toronto, and other large cities in both countries. Happily, Rayside is sparing in his use of queer, aside from the title of one chapter (“Policy Recognition of Queer Families,” which some opponents of the concept may seize on) and, of course, in large type on the book’s eye-catching cover.

Rayside’s book is about fundamental rights, although he does not call them that. The big prizes, economic security and marriage, come from the elimination of discrimination and the removal of legal barriers that prevent people—and not just GLBT people—from making the life choices that bring them the hope and happiness that are part of being an adult. Parenting, in my view, is not on the same level. Many people and many couples go through life without becoming parents, and with divorce and remarriage increasingly common in both countries, marriage is no longer clearly associated with reproduction and parenting.

Schooling is different again: the key issues relate to the conditions under which children learn. The rise in teenage suicide, concerns about bullying and tragic events like Colombine have all drawn attention to the fact that being a teenager was always hard, and always will be; being a GLBT teenager in a hostile or unsupportive environment just makes it worse. Despite what American lawyers and teachers have achieved, schooling is not as advanced in the United States as Rayside implies. Two of my work colleagues, women baby boomers, recently sought my advice after their teenage sons came out. One wanted to find out, “now that she knew,” what she must be sure not to do so that her son would not be uncomfortable. The other knew exactly what to do, but was worried that he would be expelled from his private school, “not that that would be a bad thing, since at least we would know he didn’t belong there, as a gay 16-year-old, in such a hostile environment.” Not being a parent, I counselled as best I could. What I told them both was that although their sons’ being gay was not an issue for them, sexual orientation would always be a big issue for teenagers. That parents are coming to realize that some things don’t change underlines one of the main points Rayside is making, that schooling may be the toughest of the three issues to tackle. This is not because there is a shortage of litigators or concerned teachers’ unions to tackle the legal and learning issues, as he implies, but because engaged parents want, first and foremost, to support and protect their GLBT child, and in that moment, the broader legal, political or educational policy issues are not exactly in the front of their minds. On the contrary, most parents’ first thought is “how to get us all through this now,” not how to call a lawyer to make the policy problem go away. So as long as good American parents act individually as good parents should, the pressure for change across the board does not materialize.

The two countries also have far different educational systems. In the United States, public education competes with private schools (sometimes religious, often the result of school desegregation, “flight” to the suburbs and the subsequent deterioration of inner city schools) and home schooling, often to avoid children’s exposure to liberal ideas. The public system is the battleground for Gay-Straight Alliances (high school “clubs,” organized by students and teachers to offer safe spaces for self-identifying GLBT teenagers), and their opponents. In Canada, the publicly funded system dominates, and has not so far been attacked by anti-gay groups complaining about gay teachers or about children being told about gay issues. The lack of progress through litigation, which Rayside decries in Canada, may result from the fact that it may not be needed in the publicly funded Canadian schools that reflect Canada’s more liberal and tolerant attitudes.

After astutely framing his thesis, that the core differences in attitudes, history and practice between Canada and the United States hinge on the recognition of “family,” Rayside ably sets out the political and legal history of progress in GLBT recognition and rights. The institutional contexts for change are very different in the two countries. Litigation is a key—if not the key—social strategy for change in the United States. Weak political party discipline, the role of money and lobbyists in influencing public policy and the multiple local access points to the political process through Congress, state and local government, all make for a very lawyer-driven approach. Canadians are still a bit shocked by lobbyists, and the cost and extravagance of the U.S. political process. Rayside notes that litigation to change public policy on individual rights is relatively new in Canada, occurring mainly in the post-1982 period as the Supreme Court of Canada broadened Charter rights and responsibilities: “court rulings helped establish lesbian/gay rights as a question of basic equality—a framework quite readily understandable and supportable especially in light of the generally positive Canadian views towards the Charter.”

Stepping back from the facts, which Rayside has drawn from a variety of social science, legal and journalistic sources, I find the missing explanatory factor in his thoughtful narrative on America is why these cases? Why this chronology? For example, the seminal 2003 United States Supreme Court case, Lawrence vs. Texas, which struck down sodomy laws in the southeastern United States, was not just random. The sympathetic plaintiffs had excellent and well-funded lawyers. The Supreme Court review occurred before President George W. Bush had made his more conservative appointments. Together, these factors created a window of opportunity that changed the legal landscape for sexual behaviour laws nationwide. Because losing the case would have had dramatic, negative consequences for broader GLBT civil and legal rights, there were careful and clever GLBT legal strategists guiding these moves. Rayside catalogues the civil rights organizations that have taken up GLBT causes, starting with the American Civil Liberties Union and including the large and well-funded gay rights organizations and lobby groups such as Human Rights Campaign and Lambda Legal. But the strategic story is missing. The legal strategy and the women and men who implemented it are perhaps a subject for an American author to take up.

Rayside points out, albeit well into the book, that the long legal struggle south of the border was largely unnecessary in Canada. Two factors are at play. First, Canada’s social safety net system, in particular single-payer health care with universal coverage, did not require employer-by-employer battles to extend employment benefits to same-sex partners. American private-sector employers are slowly learning that these benefits are part of the diversity agenda, a business imperative in these times. The lack of an economic impetus such as this has reduced the need for litigation and organized lobbying by gay rights organizations in Canada. Second, following the decriminalization of homosexuality by the Trudeau government in 1969, the subsequent recognition through the tax and legal systems of de facto couples did not provoke the inch-by-inch political and social battle that continues to engage American politics and public opinion today.

The timing in Canada though, nearly 40 years ago, has broader ramifications: generation X and millennials grew up in a world with equality for GLBT Canadians. After 40 years of slow and steady progress, in Canada it is not just intolerant to oppose GLBT rights, but old-fashioned. When I gently correct acquaintances who assume I have a female spouse, there are often blushes and apologies in Toronto. In the United States, the subject just gets quickly changed. Accordingly, the striking down of provincial marriage laws, and the extension of same-sex marriage recognition across Canada, largely followed public opinion held by a broad majority of Canadians everywhere. Prime Minister Paul Martin’s statement opening the debate to legalize gay and lesbian marriage was a forthright expression of the tolerance and inclusion that makes Canada Canada:

Even Stephen Harper’s half-hearted attempt to reopen the same-sex marriage issue, to placate the socially conservative part of his party’s base, was short lived, and Canada has moved on.

What happened in Canada should comfort gay and lesbian Americans who have married under the laws of Massachusetts. Although legal challenges and a referendum may still take place, I am confident that the people of Massachusetts have also moved on and will not follow more than 40 other states that have constitutionally banned gay marriage. Of course, faith communities are politically far stronger and more engaged in the United States, particularly the 70 million–­strong evangelical movement, and Rayside points out that sexual diversity issues have tended to unite them politically across their differences far more than other public policy issues such as the economy or climate change. But regional differences in attitudes, which Rayside admirably demonstrates go more north-south than respecting the border, make community acceptance of same-sex marriage in one liberal, northeastern state unlikely to spread coast to coast without some legal or political impetus that is locally organized and driven into the courts or the legislatures. And as this spring’s battles for the Democratic Party’s presidential nomination have illustrated, even American liberals speak in code about differences of race and gender. While no American—pundit or poll respondent—would wish to appear a bigot, public demonstration of the acceptance of difference has not yet matched the requirement in Canada to put one’s inclusive credentials on display.

Moreover, Canada’s official encouragement of multiculturalism as a force for unity in Canada, again since the 1970s, has encouraged inclusion and acceptance of other kinds of difference. Contrast this with what Rayside correctly describes as Americans’ fear of the social disintegration of America’s melting pot.

As I write this review, political leaders in Maryland have again been frustrated in their efforts to take action on same-sex relationships. Faced with unrelenting opposition to same-sex marriage from social conservatives and most church leaders, and concerns that civil union legislation might get picked at to the point of being seriously discriminatory or open to legal challenge, some civil rights leaders have found a new approach: make civil unions the state-sponsored legal framework for the rights and responsibilities the state gives all couples in a committed relationship, and let the churches marry whom they will. (Even in relatively liberal, urban Maryland, synagogues, mosques and temples are mostly invisible politically.) By turning the religious traditions of marriage into a distinction about “what is Caesar’s, and what is God’s,” they just might have shifted the debate back to Rayside’s underlying thesis: that the state’s role is to confer and defend fundamental rights that all must equally enjoy. The legal and economic rights accruing from relationship recognition, and the right to parent, including having safe, supportive and nondiscriminatory schooling for your children, have followed different trajectories in Canada and the United States. Rayside does a superb job telling the history and setting out what remains to be done in each country.

The United States falls behind Canada most dramatically on the recognition of same-sex relationships. On parenting, American legal battles have brought great personal grief to the parties—adults and children alike—but as the younger generations that have been exposed more tolerantly to sexual diversity grow to adulthood, GLBT rights will become, perhaps, less important than parenting skills and engagement with children’s happiness and development. This would be just as the generation X’s and millennials’ parents, we baby boomers, taught them to expect. In this regard, David Rayside may be right that alignment between the two nations may, for reasons of demographics, start to occur as younger policy makers take the reins. His book documents very well how both countries got to this point on sexual diversity rights, what remains to be done, and, perhaps, how.