Matrimonial Matters

Justice Department lawyer helps tie a knot around Canada’s new law on same-sex marriage

by Nicole Baer

OTTAWA—The first-year law students puzzled over the problem: Could a person, who had undergone a sex-change operation from man to woman before marriage, be forced to testify against her husband in a court of law?

One student, with a theatre and genetics degree already in her pocket, knew the answer was yes. A person’s gender at birth does not change for the legal purposes of marriage, regardless of later changes. And, according to the laws in force at the time, the woman was a legal male for the purposes of marriage, so could not marry a partner of the same sex, and therefore could be compelled to testify against him.

“The meaning of equality has to be that everyone is entitled to belong to the central social institutions of society, and to contribute to our society,” she notes. “And so, the exclusion of any group is offensive to that notion of equality.”

More than two decades later, the same student has finally helped render the classroom conundrum moot by leading the federal government policy work in helping Parliament pass a law sanctioning civil marriage between spouses of the same gender.

“It’s really the end of the road in terms of federal legislative change to provide equality for gay and lesbian couples,” says Department of Justice Senior Counsel Lisa Hitch. “There’s now full equality, at least within the federal law, for gay and lesbian couples.”

The controversial law, formerly known as Bill C-38, gives couples of the same sex equal access to civil marriage, while also taking measures to recognize religious freedom. It became law on July 21.

Hitch points out that the civil law has long furnished an alternative for couples who either do not qualify for, or don’t desire, a religious wedding. Churches have, for instance, refused to marry divorced people, or couples from differing faiths.

Now, gay and lesbian couples who either cannot have their marriage vows consecrated in a religious setting, or don’t want a religious wedding, will have another option in civil marriage, which falls under the jurisdiction of the state.

The new law also gives a further nudge to an ongoing series of initiatives aimed at modernizing the laws affecting pensions, taxes and many other benefits, entitlements and obligations that used to be based on the traditional definition of spouse.

Fundamental rights

For Hitch, a lawyer in the Department’s Family, Children and Youth Section, the new same-sex marriage law is not so much about such administrative nuts and bolts. Rather, it speaks to fundamental notions of equality and human rights.

“The meaning of equality has to be that everyone is entitled to belong to the central social institutions of society, and to contribute to our society,” she notes. “And so, the exclusion of any group is offensive to that notion of equality.”

The new law means a great deal to individuals, Hitch says, and to their extended families as well. As with opposite-sex couples, same-sex couples are often motivated to tie the knot in order to better protect others, especially children.

Though the new law is firmly anchored in the guarantees in the Charter of Rights and Freedoms, efforts to recognize same-sex marriage started in the 1970s, when the Quebec government first banned discrimination on the basis of sexual orientation.

For much of the past 20 years, Hitch was instrumental in the often-rocky policy process, though she emphasizes hundreds, even thousands, have had a role to play over those years.

Within the Department, for instance, the communications, specialized legal advisory and litigation sectors played key roles, as did legal services, statisticians and researchers.

True teamwork

“The biggest thing I have learned is how and when to involve other people,” says Hitch.

“Teamwork often sounds like a buzzword, but here’s an area where it’s been very real and very necessary. I couldn’t possibly have learned the in’s and out’s of all of these areas on my own.”

Communications, she says, played a leading role as well, since the success of the initiative hinged on being able to track public opinion and explain and convince Canadians of the rationale for the change.

“The whole basis of human rights protection in Canada is that you can’t change attitudes, but you can change behaviour,” Hitch explains. “So you outlaw discrimination as a behaviour, and hope that a change in attitude will follow.”

Hitch also applauds the courage of Canadians who, for many years, put themselves squarely in the spotlight. Outspoken MPs like forme New Democrat Svend Robinson, for example, doggedly dragged same-sex equality rights onto the floor of Parliament. Academics, non-governmental organizations and litigants braved public opprobrium by challenging discriminatory laws in the literature, public discourse and the courts.

Raised in an open-minded Toronto family that celebrated cultural differences, she believes that initiatives like the same-sex marriage law in essence amount to liberating a group of people from discrimination, hatred and violence.

In fact, she has been motivated throughout the past decades by cases where people are injured, even murdered, because they are—or are merely suspected of being—gay. Equally frightening, Hitch says, are the numbers of young people who are driven to suicide by fears they may be homosexual.

Fighting intolerance

“They see ahead of them a future of rejection and of being outsiders in society and even in their own families,” Hitch says. “And to have a cause of suicide among kids that could be removed by law—yet isn’t—seems a crying shame.”

With this colossal undertaking successfully behind her, what’s next for Lisa Hitch?

“I have a notoriously low tolerance for boredom,” she confesses.

But, with controversies already bubbling over polygamy, Shariah law and other issues that lead to challenges between religious values and established societal norms, Hitch is sure something interesting will come along.

Not that she will sit idly by and wait for them to land in her lap.

“I imagine what I’ll do is go look for somebody else who has a problem that I can fix in the meantime,” she says, bursting into her characteristically ready laugh.

After 20 years, it may well be time to identify with a new issue, adopt a new persona—at least after a few remaining details are cleared up.

Hitch still recalls with relish the evening, back in the ‘80s, when she stole away from the Supreme Court of Canada battles over same-sex discrimination in order to go to a movie.

She was spotted by a reporter who was covering the cases.

“And there was the reporter, screaming across the crowded movie theatre: ‘Hello, Miss Sexual Orientation!’”

The moniker stuck for a long time.

So yes, she concedes, it probably is time to move on to the next challenge.