Male 1: This is The Every Lawyer, presented by the Canadian Bar Association.

Julia Tétrault-Provencher: Hi, I’m Julia Tétrault-Provencher, and welcome to The Every Lawyer. I think you will be glad you tuned in today, and thank you for doing so. Today we are talking about the past, the present, and future of sexual and gender-diverse peoples’ rights in Canada, and around the world. We recorded this conversation on February 1st, 2024.

It is my pleasure and an honour for us here at the CBA to welcome Barbara Findlay KC, and Doug Elliott. Whether as intervenors or as defense counsel, Barb and Doug have been personally involved in much of, if not all, the jurisprudence on sexual and gender-diverse peoples’ rights in Canada over the last four decades or more. And throughout those many decades, they have been prolific advocates for our community. They are longtime close friends, and the original cofounders of the CBA’s SOGIC section, now, as you know, called SAGDA, which is where our discussion began. You guys know each other very well, right? That’s what I understand.

Barbara Findlay: Many, many decades.

Julia: Many, many, many decades, okay. Because you both were the founders of the CBA SOGIC.

Douglas Elliott: Yes, indeed.

Julia: How did that happen? I’m very curious.

Douglas: I think Barb should start, because British Columbia got started before Ontario, and so maybe she should start talking about how they got things going in BC, and then I can talk about Ontario. And then we can talk about Mont-Tremblant.

Julia: Let’s go.

Barbara: I had the idea that we needed a national connection among the – there were very, very few out queer lawyers across the country at that time. So I got some money from the Court Challenges Programme to organise a conference, and Doug was one of the people who came from the east for the conference. And he agreed with me that we should do that, and together we strategized about how to advance that project both in our respective provinces, and then nationally.

Douglas: Yes. So I think Barb’s being modest. She had actually started the provincial branch first, and then, inspired by that, on World AIDS Day, 1994, we started our provincial branch, and then Barb had her conference and we talked about doing something nationally. And also our idea was to sort of propagate all of these branches in different places. I went to Winnipeg and helped get something going in Manitoba, but we thought there was a need for a national meeting, a national umbrella organisation.

We talked about setting up a free-standing one, but we really felt having the framework of the CBA was important. We had a lot of help from the staff, and the staff told us, you know, go to a midwinter meeting, it’s more intimate. If it’s something controversial, it’s probably easier to get people on side. And so we went to Mont-Tremblant in Quebec, which, interestingly, at that time there was no Quebec branch of SOGIC. We were there as kind of queer missionaries spreading the good word about SOGIC.

Julia: And how was it received? In what year was that?

Douglas: ‘97, I think, or ‘96. February of 1996.

Barbara: And the thing about the Canadian Bar Association structurally was, at least in British Columbia, there had never before been a section organised on anything except a substantive legal rights topic. So anything that looked like an organisation for an interest, as opposed to a legal topic, they were very nervous about that idea. And that was the hurdle we had to overcome, and it was where the homophobes hung out, on the other side of that question. We were talking about intersectionality, and, really, gender had come to be understood in some ways, but that’s all, at the time.

Douglas: Yeah, I remember on the bus up to the hotel, some guys on the bus grumbling about this and saying, oh, well, why don’t we have a group for drunk lawyers, and why don’t we –

Julia: Oh, my God.

Douglas: – have it for lawyers who sexually harass their secretaries, then? To them, it’s very obvious through their comments that they thought this was an immoral rallying point for lawyers, and should have nothing to do with the CBA. And initially, that was very awkward being on the bus with those people, I got to tell you. And when we got there, I wasn’t sure whether that was representative or not. So my favourite story about that meeting is Barb and I had hit on the idea of giving little rainbow pins, lapel pins, to people to show their support. Because by that time already the rainbow flag was kind of identified as a symbol of our tribe. And they were very nice pins that had enamel finish on them. And we’re sitting there at this table trying to hand out these pins, and we might as well have been handing out stink bombs, you know, like nobody wanted these pins.

Allan Rock was then the Minister of Justice, and he was there with his deputy minister, George Thomson; I knew both of them. And I went over to them, and I said, look, we’re trying to get this going, will you wear these? And they said, what does it mean? It means that you support our motion to have this group founded. And they said, oh, definitely. I knew that they were both great allies. And Allan put his pin on. And it was so funny, because when he did his keynote as the Minister of Justice, he stood up there, and because it had enamel on it, and there was a spotlight, every time he turned, there were laser beams coming out of his pin, and it was gleaming all over, and so everyone was really aware that he was wearing this pin. As soon as he sat down, it was like a stampede to our table. Everybody wanted a pin, everybody wanted to line up behind the Minister of Justice. It was hilarious. It was a real [unintelligible 00:07:22].

Julia: That’s a very great story, actually. I can understand why there was a need to create this section, but I’d like to know why. And I’m asking this bit of background because, because of the Touchstone report, we had a chance to interview many different people from around Canada, mainly women, and some from various backgrounds as well. And many shared that when they came from a, I would say, I don’t like this word, but from a minority, visible minority, what really helped them is the fact that they had groups, support groups, and they really felt the need to be united with other people who face the same challenges, and who also had the same objectives. And I was wondering, is that also one of the reasons why, in 1997, in 1996, you thought that it was important as lawyers in the legal profession to have this group of sexual and gender diverse people together, because you had similar objectives or similar challenges?

Barbara: It’s very, very difficult to convey the suffocating desert silence of being queer in the legal profession, and in the law, in the early 90s. In British Columbia 25 percent of the laws of the province explicitly discriminated against queers. Nobody, like nobody, was litigating for queer equality rights. In the equality organisations that I belong to, LEAF, the CBA, the Law Society’s Equality Committee, not only was nobody talking about queer issues, nobody knew how to respond.

I went to the Law Society’s equality meetings, and I said at the first meeting I was appointed to, did you appoint me because I’m a lesbian? And the chair of the meeting kind of – that extended blink where she didn’t know whether to say yes or no. She didn’t know what the right answer was. And I said, well, the reason I’m asking, is that would make you the first - congratulations, because that would make you the first equality committee to have appointed somebody because of their sexual orientation. Her shoulders went down, and she acknowledged that yes, that was why. And I said to myself, I’m going to say the word lesbian once in every meeting.

And I did that, and over a period of 18 months nobody, not once, ever, picked up on, responded to, answered my questions about. And so it was into that kind of profound not just silence, but silencing, that we were trying to find a foothold. All the lawyers, we kept track of each other, gay lawyers, in secret, because it was part of the ethos that nobody ever outed another person, period, certainly not out another lawyer. Our initial SOGIC meetings in Vancouver were accessible by a back entrance, so that people wouldn’t be identified as queer for coming to the meetings, that kind of thing.

Douglas: I remember very well, Barb, on that note, that when we had the Ontario SOGIC, the first time we had a meeting in Ottawa, I was told – I had a reception, I rented a suite at the Château Laurier Hotel, and I was told by the queer lawyers that I knew under no uncertain terms to say gay or lesbian, or even SOGIC. Oh, and the sign in the Château Laurier lobby, it said, Mr. Elliott’s reception. And it was almost like a speakeasy to get into the suite. That’s how crazy it was. But you have to remember the ethos of the time. That’s kind of a turning point, 1996, in many ways, because before that we had the Anita Bryant tour of Canada, we had bathhouse raids.

And then AIDS came along, and that was [unintelligible 00:11:38] gay men, and some very great lesbians were running around trying to help us. There were some cases in Ontario that were going to court after 1985, when Section 15(1) came into effect, but we kept losing under Section 1. And it was actually a case from BC, the late great Joe Arvay, of sainted memory, brought the Egan case up to the Supreme Court of Canada. And that decision came out in 1996, and of course we still lost. But a lot of people thought Egan – you know, that famous saying, a tie is like kissing your sister. Egan was kind of a tie, and we certainly felt – I think Barb and I felt at that time that the tide was turning finally, that we were starting to get some momentum towards positive change. And of course Barbara and I are never ones to sit at the sideline and wait for the parade to go by. We’re going to organise the parade, and be marching at the front of it. So that’s what we did. And we became the first co-chairs of SOGIC National.

Barbara: And to give you a sense of that, at the time the BC Teachers Federation was considering a motion to support queers. We weren’t called queers in those days, for sure. But the teachers, the gay teachers, did not feel able to go to the convention because they would be identified as gay teachers. And that was the kiss of death. So what we did was, I made a little postcard with a line drawing of a school on one side, and then on the other side it said, when I was in high school, this is what happened to me. And I handed out those postcards and golf pencils to this huge crowd outside the hotel where the convention was happening, and all the gay teachers wrote their stories. And we took them in, and put them on the desks of the delegates, and the motion passed 85 percent. But that was the kind of creativity and visibility – it is really impossible to convey to young ones who didn’t live through that, what it was like to live a double life like that.

Douglas: And let me add to that, Barb. You know, today all the big law firms, they got rainbows everywhere, and they go to Pride, and they recruit with queer lawyers, saying, oh yeah, we’re a fantastic place. Those big law firms were nowhere to be seen in the 90s. They wouldn’t go near us with a barge.

Barbara: That’s right.

Douglas: Nowhere. All of the work that was being done was being done by small law firms like Barb’s and mine, with occasional help, I want to acknowledge, from the unions and from the lawyers who were working for union shops. They also helped out too. I don’t want to forget them, because they made an important early contribution. And a few lefty lawyers, you know, like, again, another person of sainted memory, Clay Ruby, in Toronto, was very early on, because of his political views, was an ally to our community. But those were the people who were – it was fringe lawyers who were helping us out in the beginning. And the fringe lawyers, they were allies. It was people like Clay Ruby. There was no Doug Elliot or Barb Finley in the 80s. No such thing.

People like Ian Scott, who was a very great lawyer in Ontario, but was so far in the closet, you’d have to send in a search party to get him out. Eventually he came out just before he died. But that was the climate then, and it’s so different now. Now there are LGBT groups at every law school. That didn’t [unintelligible 00:15:50]. When I went to U of T [unintelligible 00:15:53] even I turned it down at U of T. I mean I was out to myself and my family. I wouldn’t organise a gay club at U of T law school to save my life back then. I knew lesbians and gay men at a lot of the big law firms, but, as Barb said, there was this understanding that as long as they’re not saying anti-gay stuff, you respect – cabinet ministers too, as long as they’re not saying anti-gay stuff, you just bite your tongue, and you keep doing the work that you’re doing.

And of course we started winning the cases in the late-90s. And we used to get together around those things just to see each other as intervenors in cases. And Court Challenges definitely helped with organising conferences and things. Of course people need to remember, technology was different then, too. Like with podcasts, this was not possible in the 90s. Barb had to use the 19th century technology of the telephone and pick up the telephone and call to communicate. Or we’d find occasions to get together in person.

Another thing I will say that played a positive role in ‘97/’98/’99, I was involved in the Krever Inquiry into the blood system. I represented the Canadian AIDS Society, and that went from province to province. So thanks to that, I got a chance to reconnect with Barb, I got to go to Manitoba, I got a chance to connect with Mike Law. It gave me an opportunity to, on the side, propagate the CBA SOGIC faith to local lawyers. A lot of activism, I think Barb would agree with me, it’s about demonstrating that something is possible. That’s why it’s so important for Barb to be the first lesbian at this meeting, because it’s a lot easier to be the second lesbian at the meeting. [Unintelligible 00:18:08] the first.

Barbara: Yeah, my experience as a lesbian in feminist spaces is that from the mid-seventies to the mid-eighties feminists didn’t want lesbians in feminist groups because they would all be tarred with the brush of being lesbians, and that would cause them to lose so much credibility that they would not be able to win the fights they were engaged in. So we participated in feminist groups, we led feminist organisations, without being out. And that, for example, when I first suggested that we take a same-sex benefits case as a feminist litigation strategy, I was told that that was a sexual orientation issue, not a gender issue.

So collectively, we’re so far from understanding any version of intersectionality what we now call intersectionality, that it was really difficult even to have a conversation. And so the efforts of queer people, of women of colour, to say that the kind of mini-hegemonic white straight women’s movement, excuse me, were really met with antagonism and kind of – you’re trying to ruin the good work that we’re doing.

Douglas: Barb, you reminded me of another anecdote about the challenges of being an ally in those days. I remember a former president of the Canadian Bar Association was working on a file with me, who was at his club, and a lawyer that he knew made the remark to him, oh, is there something you’re not telling us, because he was [unintelligible 00:20:19].

Julia: Because he was an ally. Yeah.

Douglas: So it was even challenging to be an ally in those days. I mean, I think it was especially problematic for feminists, but it was a problem for straight men too, to be allies, because people would immediately start whispering about why they are being supportive.

Barbara: I’m going to tell you how I survived those times, and ask you the same question, Doug.

Douglas: Okey-dokey.

Barbara: I hit feminism in 1970, and it was liberatory, because it taught me, in one penny-drop, that what I had understood to be about me was, in fact, not about me at all, it was about the socially constructed conditions of oppression. And I was off and running. It was fantastic. I remember phoning my partner, who was at the time in Toronto, and saying, you have to read this, this and this. In 1984 I went to an unlearning racism workshop, and had the very same penny dropping, oh my god, understanding of the pervasiveness of racism, only this time I was in the oppressor spot. And that meant that I had a lifetime of work to do to address, to unlearn, to work against the structures of privilege, as well as to work against the ways I was marginalised.

And that work, which I continue to do to this day, offers a paradigm to think about the ways each of us has an individual map of locations of privilege and oppression, and how those intersections or those interrelationships inform our own character and inform our political activism. So it has given me a way to think about the responses that I have got from institutions, from groups I’m in, from whatever. And to be able to speak into it in a much more effective way, because if I’m always conscious of my location in relation to what I’m talking about, it’s much more likely to be an inclusive not an exclusive conversation.

Julia: Yeah, but that’s hard. I mean, to do that, as you say, it’s a lifetime thing. And sometimes you’re like, no, I just did something that is totally from my privilege. And when we were writing together, I said [French spoken], which I don’t know what it is in English, those angles that you don’t see about yourself, and then when you reflect about it, you’re like, oh, wow, okay, this, what I did, it’s like I’m the oppressor right now.

Douglas: Blind spot.

Julia: Blind spot, yeah, thank you. It’s also step by step. You learn, and also because you reach out, I guess, for the information, and that’s the thing I feel like sometimes people don’t do. They don’t reach out to the information, to know what are their blind spots, and they don’t work on it. But also for the conversation, I’m sure it helped for you as well to put yourself in this position of – does it help you, actually? Doug, I’d like also to hear how you managed those times, but Barbara, just to know your blind spot and to know that you have your own – how to say? There are some aspects of your life where you are clearly marginalised, but then also aspects of your life where you’re privileged.

Did it help you also to discuss with the other people who maybe were not aware of their blind spots or were not aware of intersectionality, or who were clearly rejecting you for who you were? Did it help you, or you were more like, no, no, I don’t want to talk to you anyway, go learn? Because there’s also this kind of tendency happening these days where people are like – and I do understand, being like I will not teach you, go teach yourself and come back to me once you’ve learned.

Barbara: I’m of an educational bent, so I didn’t respond to people with go do your homework. I currently run groups for white people about unlearning racism, for example.

Julia: Wow, yeah. I like that. That’s a good example.

Douglas: Okay. So how did I get through all of this? First of all, I want to make it very clearly to everyone that it was hard. It was really hard. I don’t want anyone to look back and say, oh, boy, what a wonderful career, it was a piece of cake, you just stood up in court and the judges said what would you like, Mr. Elliott, how can we help you today. Or the CBA doing the same thing – it was not like that. Everything that Barb and I did – you know, when you’re a pioneer, you think of the pioneers in this country, the European, white settler pioneers I’m talking about, not the Indigenous people, because they had a different experience.

But the white settlers who came to this country, they had to hack their way through the bush, and they had to create the farms and all of that kind of stuff. They started from scratch, having left everything behind. And we were kind of in that situation, learning everything, and really armed with the conviction that we were doing the right thing, and that we had a certain amount of courage. And we certainly had the luck to be confident enough in our own sexuality to be out. The work we did could not have been done by closeted people.

Barbara: What was it that fed your courage?

Douglas: I think a couple of things. First of all, it’s the way I was raised, the kind of values that I was raised with by my parents. And I was very, very fortunate that when I came out to my parents, I was quite young, I was 20, and my parents were very supportive. And the rest of my family, for that matter, my siblings and so on. And I also had been in a very long-term relationship. My husband and I, this year we will have been together for 47 years. So having that loving support in my domestic sphere really helped a lot. And I recognise the fact that I was lucky that way. It’s not really privilege, it’s just good fortune that I found myself in that situation. I know I was privileged in the sense of being a lawyer and a white male, cisgendered person, who could put on a suit and look like everyone else. That certainly was very, very helpful in advancing our cause back in the day. I did have that.

I remember once a judge saying to a friend of mine – I had argued a case in front of him, and he apparently had missed the memo that I was gay. And he said, oh, I didn’t know that Doug Elliott was gay, he said to a friend of mine, and the response was, well, did you expect him to show up in court in a skirt and high heels? I used to get that – I don’t know, Barb, if you remember, people used to say, oh, you don’t look gay, as if it was a compliment. What does that mean? It’s like saying I don’t look like a lawyer, or I don’t look [unintelligible 00:27:54]. Is that supposed to be a compliment? I don’t get it.

Julia: That’s something that is still being said. It’s still a thing. It’s like you don’t look like – what should I look like?

Douglas: It’s unfortunate. But I also think that we had great clients. Their courage was very inspiring. One of the reasons that I took this stuff on, Michelle Douglas won her case against the federal government in 1992, and that opened my eyes to what was possible, and she and I have since become friends. I had a gay cop who came to me – he had already gone to the media and said I was fired for being gay, and he came to see me, and I thought, well, how can I not help someone with that kind of courage? You know? So the clients were inspiring. And there was absolutely a sense of comradery with the small band that Barb was talking about, that we all knew each other, and we worked together, we were all dealing with the same stuff. If Barb lost a case, she could pick up the phone and call me and commiserate, or if I won a case, I could call her and tell her, here, you can use this to advance this other case that you’ve got.

Barbara: No [unintelligible 00:29:11] at the time.

Douglas: And sometimes even within our own community there were problems. I remember, Barb, bless her heart, she was one of the early advocates for trans folks. And that made her, at one time, distinctly unpopular amongst her fellow lesbians and feminists, I want to tell you.

Barbara: Not at one time, that continues.

Douglas: But I remember calling you, Barb, and I remember telling you that I was 100% behind you because I thought you were doing the right thing, and I thought the way you were being treated by our own community was really crappy. But generally speaking, amongst the lawyers – we disagreed about tactics or about [unintelligible 00:30:01] arguments, there were some very, shall I say, lively discussions from time to time, but at the end of the day we were all in it together, like soldiers on the frontline of battle. And you all looked after each other, and you had each other’s back, and you were very clear-eyed about who the enemy was. And we knew who the enemy was, and we were determined to defeat the enemy. And we were more successful in the courts in the nineties and the early 21st Century than any other equality-seeking group, which is pretty darn amazing when you consider that when the Charter was brought in the governments didn’t have the guts to include us expressly.

Julia: Exactly. I mean, just this, the progress that you could do that, is very impressive. I’d like to hear a bit about it, because we have a lot of really geeky lawyers who love to listen to the podcast, and I am one, and so since you’ve been so involved in those cases maybe if you want to talk about some milestones. Maybe not milestone, just cases for you that you were very proud, or maybe some that you lost that were important for you and you lost, unfortunately, and that later on won from another lawyer, or whatever, another case. I’d like to hear about the work that you did, so the human rights that you did in the nineties and the early 2000s, and I guess also later on, but really some of the progress that you’ve seen. And maybe also touching upon today what you see as still some progress that we still have to do. Because we must not forget that there are still issues.

Douglas: Barb, I know, has strong feelings about this. I would say not just progress to do today but the backsliding that’s going on today. Barb, why don’t you kick it off?

Barbara: Well, I would tell you about the case of Kimberly Nixon; and Doug alluded to the work that I’d done for trans people and with trans people. And Kimberly’s case, in some sense, struck at the very heart of nouveau feminism, because she had been fired as a volunteer at Rape Relief because they discovered in one of the training sessions that she was trans. And for the purposes of the case, Kimberly was 100% fully female. She had had top and bottom surgery, she had changed her gender marker on her birth certificate, which at the time required her to have surgery. She was therefore medically and legally a woman, unassailably a woman. But she was fired.

The wasteland aspect of it – at the time there was exactly one book in the Canadian Library system about transgender people. There was really profound ignorance. The National Association of Women and the Law had a lesbian – by then there were – I forget what we called them. Bulletin boards or something. A kind of e-discussion group, or an email chain, I’m not sure what it was. But there was one for lesbians. And they kicked me off that list because I was Kimberly Nixon’s lawyer, and therefore a traitor. In terms. The degree of fear and vitriol that was associated with doing that case, which ended up in the Court of Appeal, was stunning. And it was only thanks to Kimberly’s courage and conviction that we were able to navigate the incredible backlash she got.

She and I did many educationals with women’s organisations. For example, conferences of women’s groups that ran shelters. I remember somebody coming up to her in the hall at one of those conventions and say to her face, you have no business here. You do not belong here. And by extension, neither did I. I too got that splash-back. On reflection, if I were developing a litigated [unintelligible 00:35:02] strategy for a group first approaching the courts, I probably wouldn’t recommend taking on the case that challenged the central tenets of liberal feminism as the first case. It was kind of like we collectively agreed that we were going to leave same-sex marriage till the end. As activist lawyers, we said, okay, we’re going to start off with … What did we call them? Spousal benefits.

And we would go to court and say we’re not challenging marriage, honest, we’re not challenging marriage, but we should be analogised to common law people, people living in common law. And we did that until we’d run all the common law cases, and then we went for marriage. And doing Nixon, and when I did Nixon, it was kind of like starting with same-sex marriage in the context of trans rights. It fractured the feminist community. I don’t mean that I fractured the feminist community by doing that case, but rather the inherent fractures in feminism came to light around that case, and they continue, and they inform the violent, transphobic vitriol and attacks. I currently have three schoolteachers, one of them trans, who are being doxed and having picketers outside their school, calling them out by name. The degree of viciousness is terrifying. Over to you, Doug.

Douglas: Yeah, well, I’d like to say more about the trans thing in a moment, because I really feel that it’s really one of the two major, major issues of today.

Barbara: The other one being?

Douglas: The other one being the attacks on drag queens that is related to that. Those seem to be the two hobby horses of the religious right. It’s the same enemy, it’s just a different playbook. And I say slightly different, it’s really not terribly different at all, it’s just the target that they’ve chosen and the wrapping they put on their hatred is all that’s changed. But they are having more success rates. They didn’t have success for a long time, and I’ll just sort of skip through a couple of high points for me in how the law evolved. For sure, Vriend in Alberta was a tremendously important case that I was glad to be involved in, and I want to salute the CBA for stepping up and being involved in that case.

And I think the reason CBA intervened was directly because of the work that Barb and I had done getting SOGIC going. [Unintelligible 00:38:04] sending the president of the Alberta branch of the CBA to argue the case in the Supreme Court of Canada, which was not lost on the judges, and particularly Justice Major, I can assure you. That case was really important, because that really marked the turning point. That was the first case we’d won in the Supreme Court of Canada, hands down, and it was also defeating Alberta and Ralph Klein, which at that time, that was our biggest [unintelligible 00:38:35] in Canada. So it had legal significance and it had spiritual significance.

Barbara: Can I just say for the people who might not have read that case recently? What the litigants in that case succeeded in doing was persuading the Supreme Court of Canada to read in sexual orientation to the Alberta human rights legislation, which the Alberta government had in explicit terms refused to do, in language, for example, comparing queers to Jeffrey Dahmer.

Douglas: I really felt that one was also important because that was where the queers from the rest of Canada came, rose up in solidarity with our brothers and sisters in Alberta, stood shoulder to shoulder with them in the Supreme Court of Canada. Because Delwin Vriend, when I first met him, he had no lawyer. His lawyer had moved from Alberta to British Columbia because just doing the Delwin Vriend case I think was toxic to that lawyer’s business. And so they moved to British Columbia, and he was having trouble finding a lawyer. And I helped him find Sheila Greckol, who was absolutely brilliant. Still is. I admire her greatly, and a great ally. I represented the Canadian AIDS Society. For me to see how the Supreme Court had shifted in our favour was a wonder to behold, although it wasn’t – we didn’t know for sure we were going to win, it certainly looked positive.

By the time I argued the next case, M v H, which was the common law status that Barb was – people forgot, when we argued M v H, they hadn’t released the Vriend decision yet. We had no clue which way they were going. So it was like flying blind when we were arguing M v H. Anyway, then after we had argued, we won the Vriend case, we won M v H, and then we had the wind under our wings. And then the great same-sex marriage reference, Barb, you’ll remember, was like a party in the Supreme Court building. They had all of these little studios set up in the lobby of the Supreme Court building. It was like a carnival, it was crazy. And the great Peter Hogg arguing for the Government of Canada, and being on our side. To be in the Supreme Court and see the Government of Canada on our side, that was awesome.

Then the next one I’ll mention is the Hislop case I did for CPP survivor’s pensions, because that was a historic injustice case. That was for the elders in our community who so often get left behind. And again, talking about the fractures in our own community, one of the problems, I’m sure Barb would agree with me, after we won the marriage case, is this complacency that set in, in our community, like, oh, all the problems are solved. Especially for the middle-class gays and lesbians. All the problems are solved, no more work to do. I even had young lawyers say to me, oh, you guys had all the fun, there’s nothing left for us to do. And the Hislop case was about the elders in our community, and it was the first successful constitutional class action. And then I did the LGBT Purge class action more recently, which is, again, another historical injustice.

The sad part is that it’s not history in – I mean, I thought we were mopping up and doing these historical injustice cases, and now in the last couple of years it’s not about historical injustice anymore, it’s about current injustice. To me, it is nothing short of horrifying. When we were doing all of these cases – this one I know Barb will agree with me – that our number one fear in every case, starting with Vriend especially, was that the government was going to invoke Section 33. And we knew that if Section 33 was invoked it would become addictive, and also we knew that if Section 33 invoked there would be people in our community who would say bad lawyers, why did you bring that case? You provoked the backlash against us.

Julia: And can you explain to us just why it would have been bad to raise the Section 33, for our listeners who might be like, but why would it be so bad?

Douglas: Section 33, the notwithstanding clause, was a compromise introduced into the Constitution in 1982 over the reluctant protestations of Prime Minister Pierre Trudeau. It allows any legislature or the Parliament of Canada to exempt a law from the Charter of Rights for a period of five years, and it can be renewed thereafter. And so the Achilles heel of the Charter of Rights was Section 33, because any government that was willing to use it could override it. And I was so shocked when Ralph Klein didn’t use it to override the Vriend case. And I know Frank Iacobucci was shocked too. But until now, if you can believe it, all through the nineties and into the early 21st Century, when Barb and I were kicking butt, not once did any provincial or federal government use Section 33 to exempt a law, to overturn a ruling against them, until now. It’s not in 19993 this happens or in 2003, it happens in 2023, in Saskatchewan.

Barbara: Except for the Quebec use of the notwithstanding clause in relation to religious symbols.

Douglas: Yes, Quebec of course. Let me just say about Quebec. Quebec is like –

Julia: Let’s go.

Douglas: Let’s say it is a distinct society. Quebec has always hated the Charter of Rights. They’ve used Section 33 routinely. For quite a while they used it on every law; they’ve added in this clause notwithstanding Section 33. So the use of Section 33 by Quebec, I think it’s unusual. You have to look at it in that distinct lens of Quebec. But in other provinces, it was never used by Stephen Harper, it was never used by Ralph Klein, it was never used by Mike Harris. After we won M vs H we thought Mike Harris was going to use it. He didn’t use it. But now, Scott Moe has used it. I’m going to run it over to Barb because I know Barb – we both feel strongly about it, but I think Barb, in her usual way, is even more passionate and articulate on this subject than I am. So I’ll let her comment about what Scott Moe’s done in Saskatchewan.

Barbara: So, as you know, the law that Scott Moe has passed and invoked the notwithstanding clause about is a law that targets, of all communities, transgender children. It is really hard to think of a community which has less power. And the way in which the legislation targets those children is to require teachers not to respect the gender identity of their students unless they first out those students to their parents. As queer and trans folk, we know that that may be fine for some kids, but one of the experiences that every gay and trans person has is they never know in advance how their parents are going to take it. We laughably, all of us, of my generation, were convinced that if we came out to our parents, they were going to die of heart attacks. Literally.

But what actually happens is you get kicked out of your home. The highest percentage of people on the streets, young people on the streets, are queer and trans kids. So it’s profoundly cynical and vicious to say children should be outed to their parents. But it’s politically brilliant, because Scott Moe wraps it all up in this is the right of a parent to know about, be involved in the education and development of their children. Who could disagree with that?

Julia: That’s the argument that is being used.

Barbara: That’s Scott Moe’s argument.

Douglas: It’s not, actually. I’m going to interrupt there for a second, Barb, because let’s be clear, Scott Moe is a plagiarist. It’s not really his argument, it’s an argument that was invented by a group called Moms for Liberty. And Moms for Liberty is based in Florida, it’s a religious right organisation, they’re very closely tied with the Ron DeSantis regime, and, as is typical for right wing Republicans, it was founded by hypocrites. Because the woman who is the founder of it, it was just revealed that she was having threesomes with women and her husband, and her husband, who was the president of the Florida Republican Party, was just charged with sexual assault. So these are the upstanding moral people who came up with the concept of parents’ rights. Scott Moe doesn’t talk about that, of course.

Barbara: And the context of Moe’s legislation is this. Expressly discriminatory legislation against trans people was introduced in every single US state in the last year. There are 800 pieces of transphobic legislation by now. The wave of right-wing hatred from the United States is splashing over into Canada. We’ve seen it in the context of the convoy, the antivaxxers, and it is the same people. The dangers to the trans folks cannot be overstated. In BC they show up at drag shows. This week they’re showing up at the Office of the Surrey Teachers’ Association because the Minister of Education, who’s office it is, they were unsuccessful in unseating her by a recall campaign. So instead they’re doing invasive picketing at her office. And people are physically in danger, psychologically attacked, and it’s going to get worse. I mean, Alberta announced yesterday that they’re going to follow the lead of Saskatchewan and go further.

What I did in response to that was set up a group called Lawyers Against Transphobia, which is an ad hoc group of lawyers who are committed to reversing that trend on a variety of fronts. And the thing about that is that there’s so much work, it is almost beyond possible. Because so many things are happening so fast from the right wing, that it is a transformative cultural moment, in my opinion. And if we lose, that is to say if – the gamble that the framers of the Constitution made was that no premier and no prime minister would use the notwithstanding clause because they would pay for it politically, and it would be political suicide. My guess is Scott Moe is not going to go down over that. And if he doesn’t, then it’s a ticket for every conservative head of government to come, and in the context of global climate change and the spasm of countries going me first at a national and local and political level, is, in conjunction with these development on the right, truly terrifying.

Douglas: I agree with Barb completely. I think what we’re seeing now is while we were celebrating our victories and mopping up, the religious right was organising and developing a momentum that is more terrifying than anything I’ve seen. They are helped, of course, by the fact that they have state actors who are backing them. Russia, China, Iran, who are fomenting social divisions, who are using social media. These are things that were not features that Barb and I had to deal with. And who are intensely homophobic regimes. And they are threatening the very foundations of democracy in our great neighbour to the south, where [25? 00:52:41] percent of Americans say that a strong leader is more important than democracy. Where the Supreme Court of the United States is overturning rights-based precedents at a dizzying pace, based on their personal, religious and political predilections.

And the former president of the United States is on trial for fomenting insurrection and trying to undermine American democracy, and yet his own party wants him to be their standard bearer of the party of “law and order”. In the past, these people were looked on slightly as scants, by Canadians, but now you have Tucker Carlson invited to come up and speak with the premier of Alberta like a visiting hero, and you have the leading contender for prime minister of Canada is very proud of the fact that he was delivering Timbits and double-doubles to the convoy crowd when they were [unintelligible 00:53:44]. Even though they were laying siege to his own constituents.

Julia: Resolutions were adopted at this year’s AGM, among others, calling on the CBA to take several measures to confront systemic discrimination, harassment and violence against two-spirit, trans, nonbinary, and other gender diverse people. To condemn the use of the notwithstanding clause to enforce policies that force teachers to inform parents if a child wishes to be referred to by a different name or pronoun, and to advocate for the repeal of federal, provincial and territorial policies that deny appropriate protections, safety and dignity for two-spirit, trans, nonbinary and gender diverse children and youth. Including policies that mandate the disclosure of identities or exploration without the student’s consent.

For those who wish to know or have more questions about gender diverse, gender diverse includes, but is not limited to, gender fluid, gender queer and questioning individuals. Any colleagues who would like to donate their time and skills can please write to Barbara Findlay directly at lawyersagainsttransphobia@gmail.com.

So my question for you as lawyers, as advocates, as human rights advocates, I would say, since the beginning of your career. Because I feel like we’ve talked from the beginning the fight that you had, then we touch upon some of the milestones and some of the progress that you’ve seen, and all the backlashes. But what can we do as members of the CBA, as part of the legal community, or even just as citizens? I do believe in the power, and I think you’ve shown it, of getting together and also speaking up. But then the question is, what do you think our listeners could do? What do you think people can do to try to stop those backlashes?

And I must say that for the trans rights I know that for a fact feminist organisations are trying now to move away from this transphobia that they have. Some don’t do it at all, and it’s a shame, and they are being pointed out more and more. But I know that they are really trying, and there are groups also who are seeking to reach out to those women’s rights groups and be like, okay, so now because trans rights are women’s rights, and you’re all fighting the same fight, so you should all get together. So I do hear this in the community, and I do hear this at the circles, which I think is very nice, though it’s far from being won by everybody. But I’d like to hear your thoughts on maybe some cases that we should get our eyes on, that we should talk about in the media, in podcasts, or just your ideas on that, because I would like to finish on also a note of what can we do. You’re very inspiring, so I think you can inspire us a lot.

Barbara: Go for it, Doug.

Douglas: Okay. With great power comes great responsibility. For most of my life the law was used to oppress our community. And it’s only in recent years that the law and lawyers have used the tools and the skills that are available to us to advance the rights of the rainbow tribe. Those rights are under threat right now, and it’s a call to action to all lawyers to use our tools, to use our knowledge, to use our skills, to use our influence in communities. Look at all the lawyers who are political leaders. To educate the public about the importance of democracy, about the importance of human rights for all, of the importance of scientific truth and evidence in our policy making and in our courts of law. It is a time for action. Because if we do not act, it can all be taken away from us.

Look at what is happening in the United States right now where Donald Trump wants every lawyer who works for the federal government, when he becomes the president, to be personally loyal to him. What this reminds me of is a famous and chilling photograph that you can see in the Washington Holocaust Museum, showing German judges displaying proudly the Swastika on their robes while they swear an oath of personal loyalty to Adolf Hitler. That is the path that our democracies are on; to become a Putin Russia, a Xi China, or a theocracy. Not a Muslim theocracy but a Christo-fascist theocracy modelled on the Iranian prototype. If we do not, as lawyers, stand up to defend liberal democracy and our constitution, we will lose it. Now is the time to act. It’s not too late. It is not inevitable.

The odds we face now are not nearly as daunting as what Barb and I faced many years ago, because we have decades of precedent on our side, and we still have a robust and independent judiciary. We see that right now in the United States. The only thing that is stopping the Christo-fascists in the United States, all of those anti-trans laws that Barb talked about, a lot of them were struck down by American courts. The American courts are still upholding the rule of law. But that can be undermined over time, and it certainly can spread here. Here it’s even easier. You just need to get addicted to the notwithstanding clause and the Charter of Rights becomes an interesting historical artefact like the Diefenbaker Bill of Rights.

Julia: Just before, Barbara, you also answer that question. Because what you mentioned, Douglas, is that it’s true – I feel like all the work that you’ve done, it gives us some tools for our protection, because there are some case laws that – I mean, when you guys started the work there was nothing behind you, and now at least we have 25 years of case laws, case laws that can be raised, that can be used. So for me, at least, I feel like a lawyer it’s kind of a protection, and I thank you also for this amazing work that you did and that also gives us this very important rounds for future backlashes or for the present backlashes that we have. So that’s a very good point, thanks. And then Barbara, I don’t know if you also want to add something, your views on that.

Barbara: I was struck – in the Touchstone report, one of the things that they identified as a problem was that the legal profession was not educated in the rights under the Charter. And one of the enormous differences over my lifetime – I went to law school pre-Charter, and so I learned the law pre-Charter [unintelligible 01:01:29] what the Charter did to the law. And our entire generation now of lawyers and judges are steeped in the Charter and the values of the Charter. And that is, I think, an amazing protective factor in the face of transphobic attack, for example. That said, the notwithstanding clause is the ringer, and we cannot predict. Well, we can predict. Either that’s going to be the downfall of all of us or we are going to find a way judicially to defeat or limit the operation of that going forward.

The optimism that I have comes from community-based work, which is imagining justice and equality, particularly for marginalised communities, in ways which we did not have the imagination to do. I really look forward to seeing how those ideas are carried forward into the law and into the legal profession. One of the things that I think will always be true is that unless marginalised lawyers – and I want to pause and say, here’s Doug and I, we are two white, cis lawyers, and that part of the reason we were able to do what we did back then was because, yes, we were marginalised, and we were privileged. And so for every community which has greater marginalization, queers of colour, trans folk with disabilities, it doesn’t matter, those communities are informing the work that we’re doing in ways that didn’t exist when we were litigating. So it is the countervailing narrative against the right-wing nonsense I – nonsense is the wrong word. Because it speaks down to people who genuinely hold views that will be disastrous.

And one of the areas that I am focusing on these days is how to engage and move forward across those kinds of differences between us. The literature says that the only effective strategy is to engage by listening and engage by meeting people where they are. Especially as lawyers, we have previous few skills at knowing how to do that, but that’s definitely where we need to go. I have a kind of visceral urge to dismiss the transphobic folks as idiots and worse, but I have to remind myself that in my lifetime I have been profoundly wrong. I have been one of those people who held attitudes which I later discovered were oppressive. Dismissing people with those views as deplorables, for example, is entirely the wrong strategy. Entirely. So we have to work against our impulse to hold ourselves close, fight those kinds of images. We instead need to be figuring out how to nurture the mycelium that connects all of us regardless if we know it’s there. So that’s my thought.

Douglas: Can I mention one last thing before we go?

Julia: Oh, please go ahead, of course.

Douglas: Because it’s something I’m really proud of about the foundation of SOGIC that I forgot to mention. And it really ties in with another very live issue today where we’re just starting to make progress. And that is when we listed the groups that were going to be embraced by SOGIC, we expressly mentioned two-spirit people. That was very controversial, even amongst our supporters. People didn’t know what the hell it meant. Some people who were even friends of ours tried to talk us into deleting it from the list, and we were quite adamant that we want it in there, because we felt that that was important to the future of our group. Even though at that time, as far as I know, we didn’t actually know about any two-spirit people in our group, but we knew about the issues, and we were – we were learning about the issues, I shouldn’t say knew. That’s too strong a word. We were learning about the issues. We were alive to the issues.

We were determined to do what we could to advance the rights of two-spirit people. And I will tell you right now, I’m involved in a challenge to the anti-trans legislation in New Brunswick, and one of the organisations I’m representing is the Wabanaki Two-Spirit Alliance. So there we are full circle from Barb and I standing up, back 30 years ago, for two-spirit people, to today where the two-spirit people are our allies in demonstrating to the government of New Brunswick that their agenda is contrary to the traditions of Canada prior to the arrival of white settlers.

Julia: I have so many questions about that. I think this is so interesting, honestly. Because also, we don’t often thank you because we don’t often talk about the two-spirited people, and I think I would be thrilled to invite someone who could talk about that. And I’m also very impressed that 25 years ago they were included in there already, so honestly, very much. But that doesn’t surprise me, because you guys are brilliant people. But still, I think we’re going to have to do another podcast about that, actually.

Barbara: My partner was an Indigenous woman who was at the conference in Winnipeg in 1991 where Indigenous people chose the word two-spirit to describe the many traditions of same-sex attraction and gender identity variance in their communities. And that was really wonderful, to be part of that, yeah.

Douglas: You had it in your personal life. For me, Barb, I was aware of it because of my AIDS work. I was at a meeting once with some AIDS activists, and there was a really amazing two-spirit woman and lawyer, LaVerne Monette, and she used the expression in a meeting I was at in the nineties, early nineties, referring to two-spirit people. And I said, what the hell is that, and she said, Doug, didn’t you get an undergraduate degree in history from Western University? I said, yes. She said, you should ask for a refund. She said, here's a book, go and educate yourself. I read the book, and I realised there was a big gap in my education. But on the other hand, I was also aware that when I did my history studies that you would think that every person in the history of western civilization was straight, based on what I learned.

Barbara: White and male.

Julia: And male.

Douglas: [Unintelligible 01:10:54] six wives of Henry VIII [unintelligible].

Barbara: And I should say that now in the context of the Canadian Bar Association, first of all, SOGIC is no longer SOGIC. SOGIC is now called SAGDA.

Douglas: SAGDA.

Julia: That’s it, yeah.

Barbara: And the executive spent a long time considering what title would most accurately reflect the relations among the communities of queers and trans and gender diverse people. And also that we as queers have, inadvertently, always, but nevertheless, participated in the marginalization of trans and gender diverse people and their issues because they are a much smaller community than we are. Doug and I got it right, I think, in relation to SOGIC by making it gender equal, gender parity.

Douglas: Originally it was. Not anymore, I don’t think they have that rule anymore, but it was for a long time. I forgot about that. That was one of our –

Julia: That was a rule?

Douglas: Yes.

Barbara: When we set it up, we said you have to have a woman and a man as co-chairs as a requirement. And part of that, there are fewer lesbians than there are gay men generally speaking, so that was a rule that ensured that men would not be making all the decisions. But we didn’t in that leadership structure contemplate or incorporate trans and two-spirited people.

Douglas: Or intersex people.

Barbara: Or intersex people. So I want to offer that as an example of – the line that comes to my mind is do the best you can, and when you know more, do better.

Julia: Yeah, it’s true.

Barbara: And we did what we could, and it was difficult, and we’re proud of the work we did, and at the same time we participated in the creation of marginalization for other people. And so I think that at all points of working for equality or progress, we always have to be explicitly mindful of who may be being marginalized or harmed or excluded by the work that we’re doing.

Julia: Yeah, that’s true. Always need to reach out to everybody, making sure that everybody has their voices heard. Yeah, I agree with that.

Barbara: For example, we need to avoid language like inclusion that suggests that we’re the centre [unintelligible 01:13:37] instead having language like connection.

Julia: I love that.

Barbara: Or minorities when we’re talking about people of colour, who are in the world the majority. Even our language is problematic. Very problematic. Our language of equality is problematic. And it might be one of the things that’s been most significant between the Touchstone report and now, and that is that collectively we’ve come to understand that there is a problem about intersection – I’m going to use the word intersection, I actually hate that word, but there is a problem of intersectionality, and we need strategies to incorporate an intersectional lens, analysis and strategy going forward.

Julia: Can I just ask you why you hate the word intersectionality?

Barbara: I live at the intersection of Dundas and [unintelligible 01:14:48], I am not an intersection. Intersectionality is a linear idea, and that’s not at all the way oppressions work. Oppressions diffuse the atmosphere. As an image it’s a profoundly imperfect image of the ways that oppressions and multiple oppressions work. So while I completely appreciate the concept, I really hate the word. And I think language matters [unintelligible 01:15:21].

Douglas: We got to wrap up, but I will just say, Kimberlé Crenshaw herself, who invented the term intersectionality, has always said of it that it’s just an analytical tool or a theory. That’s all it is. And I do think that one of the problems with it is that sometimes it gets used like a mantra, and people don’t really –

Julia: It’s a buzzword.

Douglas: It’s a buzzword. People don’t really understand it or appreciate it. It’s more important as a concept, and to understand the complexities of oppression and discrimination, instead of using it as a kind of analytical straitjacket or using it as some kind of buzzword that shows that you get it. You know? That’s the problem that I have with it, is that it ends up being used as a kind of intellectual crutch by some people.

Julia: Yeah, and it’s not understood at all, also, by many people who use it. Honestly, I would go on forever with the discussion. I’ll just let you go, guys, and I was totally amazed. But I don’t know if there’s something else that you really wanted to share. Otherwise I think we have really, really interesting material, and thank you so much for that discussion. It’s late where I am, but I’m still full of energy because talking to you was very inspiring, so thank you very much.

Douglas: I will just say good luck with your editing. [French spoken].

Julia: [French spoken].

Douglas: [French spoken].

Barbara: A real pleasure to meet you, Julia.

Julia: It’s a real pleasure to meet you as well. Very, very much.

Barbara: And it was very fun to do [unintelligible 01:17:14] with Doug.

Julia: It shows that you guys know each other for a long time because you have a very good energy together. That’s nice.

Barbara: It’s wonderful to do something that can be edited.

Douglas: A good editor is your best friend.

Julia: Thank you so much for listening to us today, and remember to subscribe for more great roughly bimonthly episodes of The Every Lawyer. And for more on sexual and gender diverse people legal issues, check out Steeves Bujold’s podcast series, season five of Conversations with the President. Reach out to us any time at podcast@cba.org, and have a great day.