Social Movements and Equality Seeking The Case of Gay Liberation in Canada

Social Movements and Equality Seeking:
The Case of Gay Liberation in Canada*
MIRIAM SMITH Carleton University
Since the constitutional entrenchment of the Canadian Charter of

Rights and Freedoms in 1982, Canadian political scientists have
increasingly heeded Peter Russell's injunction to pay more attention to
the role of the judiciary in Canadian politics.' Such studies have
focused on issues such as the role of the courts in public policy mak-
ing; the nature of judicial lawmaking;2 empirical examinations of the
working and decisions of the Supreme Court and other courts;3 and the
extent to which the liberal orientation of the Charter displaces collec-
tive and group rights. 4 Much debate on the Charter is explicitly norma-
"' Research for this article was supported by the Social Sciences and Humanities
Research Council of Canada (#410-95-0899) and the GR-6 Fund of Carleton
University. Christian Rouillard provided research assistance. Mark Wood and
other volunteers at the Canadian Lesbian and Gay Archives (Toronto) helped
locate archival materials. The author would like to thank the gay liberation
activists who provided invaluable interview material. She would also like to
thank Deborah McIntosh, Susan Phillips and the reviewers of this JOURNAL for
their helpful comments.
Peter H. Russell, ''Overcoming Legal Formalism: The Treatment of the Constitu-
tion, the Courts and Judicial Behaviour in Canadian Political Science," Cana-
dian Journal of Law and Society I (1986), 5-33.
2 In general, the Critical Legal Studies school has focused on these questions. This
is a vast literature, but see Michael Mandel, The Charter of Rights and the Legal-
ization of Politics in Canada (rev. ed.; Toronto: Thompson, 1994); and Allan
Hutchinson, Waiting for Cora/" A Critique of Law and Rights (Toronto: Univer-
sity of Toronto Press, 1995).
3 Christopher P. Manfredi, Judicial Power and the Charter: Canada and the Para-
dox of Liberal Constitutionalism (Toronto: McClelland and Stewart, 1993).
4 Gilles Bourque, "La sociologie, l'Etat, la nation," Cahiers de recherche sociolo-
gique 14 (1990), 43-65.
Miriam Smith, Department of Political Science, Carleton University, Ottawa, Ontario

KIS 5B6. E-mail: msmith@ccs.carleton.ca
Canadian Jo11rnal ofPolilkal sc;.nc• I Re•111 canadienn• de ,c;.nu polltiqll•
X:XXl:2 (June/juln 1998) 285-309
C 1998 Canadian Political Science Association (I' Association canadienne de science politique)
and/et la Soci~ qu61>6:oise de science politique
Downloaded from https://www.cambridge.org/core. UQ Library, on 24 Jun 2020 at 18:36:58, subject to the Cambridge Core terms of use
, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0008423900019806
286 MIRIAM SMITH
tive. This debate is especially lively in the literature on interest organi-

zations and the Charter. On the one hand, Knopff and Morton claim
that by placing some types of political questions in the realm of law,
and thus in the jurisdiction of the judiciary, the Charter has opened a
new avenue for organized interests seeking to influence the state. In
general, in their view, this influence has privileged "special interests"
at the expense of majority rule. 5 On the other hand, Michael Mandel
has criticized the impact of the Charter on social movements as a force
for conservatism that demobilizes movements seeking societal trans-
formation. In seeking judicial solutions to political problems, social
movements devote resources a~d political energy to litigation which
could otherwise have been used for grass-roots organizing and for
mobilization through the democratic political process (lobbying and
party politics).6 In general, however, the empirical evidence in this
debate consists of court cases rather than research on organized inter-
ests or social movements themselves. As Allan Hutchinson has com-
mented, "this is like trying to hear music by reading about it. " 7
This debate raises broader issues about the ways in which political
institutions may shape the articulation and formulation of social move-
ment discourse and ideology, both in general and in terms of the kinds
of demands that social movements make of the state and the strategies
they may use to pursue their political agendas. TWo theoretical ap-
proaches are particularly promising. The first is the admittedly hetero-
geneous literature on social movements. One strand of this approach
has emphasized the importance of the political opportunity structure in
creating points of access for social movements. 8 Clearly, the adoption
of the Charter and the new role it affords the judicial branch of govern-
ment constitutes a potentially important change in the political oppor-
tunity structure for Canadian social movements. Have social move-
ments chosen to take advantage of this opening and, if so, in what spe-
cific ways?
The social movement literature further suggests that social move-
ments are engaged in producing identities and frames of meaning. In
David Snow's definition, framing is "the conscious strategic efforts by
5 Rainer Knopff and F. L. Morton, Charter Politics (Scarborough: Nelson, 1992),

79ff.
6 Mandel, The Charter of Rights, 4 and 337ff. For a review of this literature, see
Richard Sigurdson, "Left- and Right-Wing Charterphobia in Canada: A Critique
of the Critics," International Journal of Canadian Studies 7-8 (1993), 95-116.
7 Allan C. Hutchinson, "Supreme Court, Inc.," Literary Review of Canada 3
(1994), 6.
8 H. Kitschelt, "Political Opportunity Structures and Political Protest: Anti-
Nuclear Movements in Four Democracies," British Journal of Political Science
16 (1986), 57-85; and Sidney Tarrow, Power in Movement: Social Movements,
Collective Action and Politics (Cambridge: Cambridge University Press, 1994).
Abstract. This article examines the impact of the Canadian Charter of Rights and
Freedoms on social movement politics in Canada using the case of the gay liberation
movement. Drawing on the comparative social movement literature, the article situates
equality seeking as a strategy and meaning game that legitimates new political identi-
ties and that is aimed at mobilizing a movement's constituency. The article demon-
strates that equality seeking was a strategy and a meaning frame that was deployed in
the lesbian and gay rights movement (exemplified by the gay liberation movement of
the 1970s) prior to the entrenchment of the Charter. Thus, it concludes that some
claims about the Charter's impact on social movement organizing have been exag-
gerated.
R&ume. Le present article analyse l'incidence de la Charte canadienne des droits et
libertes sur Jes activites politiques des mouvements sociaux au Canada a la lumiere du
mouvement de liberation gaie. S'appuyant sur Jes etudes comparees des mouvements
sociaux, !'article presente la lutte pour l'egalite comme une strategic et un cadre
a
semantique qyi legitime de nouvelles identites politiques et qui vise mobiliser la base
du mouvement. L'article demontre que la Jutte pour l'egalite a constitue une strategie
et un cadre semantique deploye par le mouvement de defense des droits des gais est
des lesbiennes (comme en temoigne le mouvement de liberation gaie des annees
soixante-dix) et ce, bien avant l'enchbsement de la Charte. II appert, par consequent,
que certaines assertions attribuent a la Charte une influence exageree sur !'organisation
des mouvement sociaux.
groups of people to fashion shared understandings of the world and of

themselves that legitimate and motivate collective action. " 9 In this
article, I will use the terms equality seeking, rights claiming and rights
talk to refer to the political frame of formal/legal equality rights, in the
sense of Snow's definition, as a meaning frame that legitimates and
motivates collective action. The comparative branch of the social
movement literature has not specifically explored the impact of the
changes in the political opportunity structure, including changes to
state institutions such as the entrenchment of the Charter, on the fram-
ing process itself. 10 However, this possibility is suggested in the institu-
tionalist literature which emphasizes the ways in which political insti-
tutions and state policies may mould the demands and political agendas
of social forces. 11 Although systematic comparative research on this
link has been relatively rare, it has been more common in the Canadian
context, most notably in the work of Alan Cairns. In Cairns's work,
state institutions, ranging from provincial governments to the courts
and the Charter are seen as shaping society and creating new political
9 Cited in Doug McAdam, John D. McCarthy and Mayer N. Zald, "Introduction,"

in Doug McAdam et al., eds., Comparative Perspectives on Social Movements:
Political Opportunities, Mobilizing Structures, and Cultural Framings (Cam-
bridge: Cambridge University Press, 1996), 6.
IO Doug McAdam, "Conceptual Origins, Current Problems, Future Directions," in
McAdam et al., eds., Comparative Perspectives, 25-26.
11 Kathleen Thelen and Sven Steino, "Historical Institutionalism in Comparative
Politics," in Kathleen Thelen and Sven Steinmo, eds., Structuring Politics: His-
torical Institutionalism in Comparative Analysis (Cambridge: Cambridge Uni-
versity Press, 1992), 1-32.
288 MIRIAM SM!lll
and constitutional identities. 12 Cairns's work has explored the impact

of the Charter on group politics in the constitutional debate. Does this
new identity politics extend beyond the constitutional debate to other
issues and to social movement ideology and strategy in general? Even
if Canadian social movements have not been successful in taking
advantage of a changed political opportunity structure to influence
public policy, the new role of the judiciary may have fundamentally
transformed the frames within which such movements articulate their
identities and the ways in which they define themselves and their politi-
cal agendas. Drawing on the social movement and the institutionalist
literatures, then, suggests a somewhat different set of questions than
those that are usually addressed in the Charter literature on interest
organizations. Instead of evaluating the success (or lack of success) of
organized interests in using the Charter and the courts to advance-.pub-
lic policy goals, these considerations suggest that changes in political
institutions (the entrenchment of the Charter) may in tum shape social
movements, their frames of meaning and the specific strategies they
employ, not only in attempting to influence the state but in building
their own networks and organizations.
This article is part of a broader research project examining the
impact of the Charter on the lesbian and gay rights movement; the
focus here is on the period before the entrenchment of the Charter. If
one of the results of the entrenchment of the Charter has indeed been
the rise of a new form of identity politics and a new frame of "rights
talk," 13 then we would expect that social movements prior to the Char-
ter would have used the courts less and would have been less anchored
in rights-based frames. In fact, however, as Kent Roach has pointed
out, court-oriented political strategies have a long history in Canada; as
he argues, "To ignore precursors to Charter litigation may lead to ahis-
torical and inflated claims about the Charter's impact." 14 I will demon-
strate that the same holds true for one of the quintessential new social
movements-gay liberation. 15 Rights talk was integral to gay libera-
tion in the 1970s; in fact, rights claims, drawn from the template of the
American civil rights and other countercultural movements of the
12 Alan C. Cairns, Disruptions: Constitutional Struggles from the Charter to

Meech, ed. by Douglas E. Williams (Toronto: McClelland and Stewart, 1991).
I3 Allan Hutchinson has provided the most complete discussion of the "rights talk"
in the Canadian context (Hutchinson, Waiting for Cora/, 28ff.).
14 Kent Roach, "The Role of Litigation and the Charter in Interest Advocacy," in
F. Leslie Seidle, ed., Equity and Community: The Charter, Interest Advocacy
and Representation (Montreal: Institute for Research on Public Policy, 1993),
160.
15 Gay liberation was the term used by gay rights groups themselves during the
1970s. Thereafter, the term gay liberation disappeared in large part (although not
completely) from the lexicon of lesbian and gay politics in the l 980s and I 990s.
Social Movements and Equality Seeking 289
1960s, were central to the framing of gay liberation ideology in Can-

ada. While current gay and lesbian litigation around issues such as
same sex benefits may be seen by some "Charterphobes" as examples
of the "special-interest" litigation so typical of the "court" party that
has been created by the Charter, 16 an examination of lesbian and gay
politics in the 1970s demonstrates that attempts to use the courts to
achieve social change were not invented de novo in the wake of the
Charter. Despite the very poor chances of success, gays and lesbians
were attempting to use the courts to achieve social change before the
entrenchment of the Charter. The fact that a nascent social movement
with relatively weak political and financial resources and poor chances
of legal success chose to pursue and support litigation demonstrates
that equality seeking is a frame and a strategy that has deeper roots in
Canadian society than some claims about the Charter's impact would
suggest. The deployment of rights-based meaning frames by the gay
liberation movement prior to the Charter suggests that the impact of the
entrenchment of the Charter itself on the evolution of the movement in
the 1980s and 1990s (a period that is beyond the scope of this article)
must be evaluated in the context of the movement's pre-Charter
embrace of equality seeking.
Works that have examined the evolution of equality seeking in the
lesbian and gay rights movement have generally not traced the roots of
equality seeking back to the 1970s and, hence, have failed to place the
rights frame of the 1980s and 1990s in historical context. With the
exception of David Rayside and Evert Lindquist's work, there are no
published accounts of lesbian and gay politics in Canada written by
political scientists. 17 Much of the literature on lesbian and gay politics
is by legal scholars who have formulated generalizations about move-
ment organizing based on rights claims presented by litigants in cases
before the courts or on sketchy accounts of the actual practice of les-
bian and gay politics. For example, Didi Herman's pathbreaking Rights
of Passage generalizes about the politics of rights claims in the 1970s
based on a cursory discussion of attempts to change the Human Rights
Code in Ontario and a brief examination of the legal aspects of four
human rights cases that were brought to Canadian courts in this period.
She concludes that ''The 1970s and early 1980s campaign reveal a
law-reform movement dependent upon the public presentation of a
medical model of homosexuality and the uncritical promotion of
16 For example, F. L. Morton, "To Bring Judicial Appointments out of the Closet,"
Globe and Mail (Toronto), September 22, 1997, A19.
17 David M. Rayside and Evert A. Lindquist, "AIDS Activism and the State in
Canada," Studies in Political Economy 39 (1992), 37-76; and David Rayside,
"Gay Rights and Family Values: The Passage of Bill 7 in Ontario," Studies in
Political Economy 26 (1988), 109-47.
290 MIRIAM SMITH
achieving social change primarily through formal political strate-

gies." 18 In contrast, the material presented here demonstrates that lib-
eration ideology and strategy were entwined with formal political strat-
egies and with what Herman calls "law reform" in the 1970s. Gay lib-
eration activists of the early period were not uncritical proponents of
formal political strategies. Like Herman, Barry Adam's work also
treats rights claims and emancipatory ideologies as contradictory. His
comparative examination of the lesbian and gay rights movement,
asserts that "feminists and gay liberationists often thought of them-
selves as revolutionaries rejecting a fundamentally unequal and corrupt
power establishment. ... Civil rights had become passe: why petition
to be let into a social system so deeply riven by racism, sexism, militar-
ism, and heterosexism?" 19 This may have been true for the movement
in the United States but, as the primary sources on which this article is
based clearly and consistently demonstrate, the political leadership of
the Canadian gay liberation movement did not see liberation and civil
rights as antithetical or contradictory goals during the early period of
the gay liberation movement in Canada. 20
The gay liberation case draws attention to the ways in which liti-
gation may serve a social movement as an arena for symbolic politics
and framing, rather than as one that delivers substantive policy change.
As Stuart Scheingold pointed out in 1974 in his examination of the
American "myth of rights," rights claims are political resources that
help groups to mobilize and organize their members and potential
members because they politicize a pre-existing sense of grievance and
suggest that an aggrieved group is entitled to change. As Scheingold
argues, "The politics of rights ... involves the manipulation of rights
rather than their realization." 21 In this view, it is not the validation of
rights before courts that matters to the success of a social movement
but the assertion and potential validation of rights to the public and to
the group's constituency. Scheingold and others, exploring the role of
rights claims in the US system (particularly for the civil rights move-
ment), have found that even the influence of actual court decisions is
18 Didi Herman, Rights of Passage: Struggles for Lesbian and Gay Legal Equality
(Toronto: University of Toronto Press, 1994), 24. For similar generalizations
about organizing, see Mary Eaton, "Lesbians, Gays and the Struggle for Equal-
ity Rights: Reversing the Progressive Hypothesis," Dalhousie Law Journal 11
(1994), 130-86.
19 Barry D. Adam, The Rise of a Gay and Lesbian Movement (rev. ed.; Boston:
Twayne, 1995), 82.
20 Rights and liberation may be antithetical strategies or contradictory ideologies
today. The debate on the political and legal efficacy of rights claims in the cur-
rent context of queer politics is beyond the scope of this article.
21 Stuart A. Scheingold, The Politics of Rights: Lawyers, Public Policy and Politi·
cal Change (New Haven: Yale University Press, 1974), 148.
shaped by the degree of broader social and political support for such
decisions. 22 In this sense, then, political mobilization behind rights
claims is critical to the successful implementation of favourable court
decisions. There is no reason to think that the role of Canadian courts
will be any different.
In order to examine the ways in which institutions shape move-
ments, this study focuses on the political leadership of the most impor-
tant movement groups. In the absence of research on the attitudes of
grass-roots movement members and activists, the public and archival
record of the movement leadership (its presentations to governments
and courts, interviews with movement leaders, the archival records of
groups and media reports of their activities) will be used to show the
types of strategies that were deployed by movement organizations as
well as the "meaning frame" within which such strategies were
placed.23 The purpose of the meaning frame is to present and legitimate
the movement's demands both to its own members and to the wider
society; the public presentation by the leadership is the most important
means of describing the meaning frame of the movement.
The first section of the article surveys gay liberation ideology and
strategy in the period prior to the Charter. Gay liberation was primarily
a white movement during this period, and mainly, although not exclu-
sively, male. The women's movement constituted a powerful pole of
attraction for lesbian activists during the 1970s and, despite the reluc-
tance of mainstream feminism to deal with lesbian issues, many
women chose to participate in the feminist movement rather than the
gay liberation movement. The term "gay" itself was used by gay liber-
ation activists as including both men and women. The question of the
relationship between lesbian and gay male politics was hotly contested
during the 1970s and subsequently. In contrast, race does not explicitly
emerge as an issue in lesbian and gay politics until the 1980s. The sur-
vey of gay liberation ideology and strategy prior to the Charter thus
concentrates on the activities of groups that were mainly white and
male: the Coalition for Gay Rights in Ontario (CGRO), the Association
pour Jes droits des gais du Quebec (ADGQ), the Gay Alliance Toward
Equality (GATE Vancouver) and one pan-Canadian group, the
National Gay Rights Coalition (NGRC). 24 The second section of the
22 Gerald N. Rosenberg, The Hollow Hope (Chicago: University of Chicago Press,

1991).
23 Specifically, the primary material presented here is based on two years of
research in the Canadian Lesbian and Gay Archives (Toronto), the Canadian
Women's Movement Archives (Ottawa), over 35 interviews with movement
activists from the 1970s and 1980s and a reading of every major lesbian and gay
publication of the period that was published in Toronto, Montreal, Ottawa and
Vancouver in English and French.
24 The Coalition was renamed the Canadian Lesbian and Gay Rights Coalition in
1978. To avoid confusion, I will simply use the name NGRC throughout.
292 MIRIAM SMITH
article examines the ways in which gay liberation groups of the 1970s
deliberately used the courts as part of a concerted political strategy,
focusing on three particular cases that were pursed by CGRO, GATE
Vancouver and the ADGQ. The concluding section argues that what
matters for the success of a social movement is not legal victory or
defeat, but the actual assertion of rights claims and the political mobil-
izing that occurs around such claims.
Gay Liberation in the 1970s: The Role of Right Claims

The first gay rights demonstration in Canada occurred in August 1971
in Ottawa. Organized by groups from Ottawa, Toronto and Waterloo,
Ontario, as well as from Vancouver and Montreal, the demonstrators
presented a brief to Parliament demanding civil rights and carried signs
proclaiming the slogans of the gay liberation movement. 25 Gay libera-
tion was firmly rooted in the new social movement organizing of the
1960s, especially in the challenge to the public/private split and the po-
liticization of sexuality and gender roles that was pioneered by second-
wave feminism. Its goals were to bring lesbians and gays out of the
closet, to build gay community, to gain social acceptance for homo-
sexuality and generally to liberate sexuality from the rigid constraints
of a patriarchal and heterosexist social system. Like Marxist ideology
which suggests that the state may ultimately wither away, so too gay
liberation ideology foresaw the eventual elimination of gender and sex
roles. In the short run, however, gay liberation was predicated on the
need to construct and assert gay and lesbian identity and to build an
institutional and organizational base for the solidification of this iden-
tity.
The demand for civil rights was central to gay liberation during
the 1970s. The inspiration for rights claims was the strategic and ideo-
logical frame provided by the US civil rights movement and the
women's movement. The struggle for lesbian and gay civil rights was
seen in the mainly male gay liberation movement, in the mainstream
gay media, and in gay liberation political organizations of the 1970s as
inextricably linked to the goal of liberation itself. While the achieve-
ment of rights was significant in itself, it was also a strategy for build-
ing a social movement, creating gay community, raising gay con-
sciousness and bringing gays out of the closet, in short, for the creation
of political identity. Tactically, rights claims were not confined to liti-
gation and courts but were the organizing frame that was used by gay
liberation groups across a range of strategies and tactics including lob-
bying government, electoral politics, picketing and demonstrations.
25 Brief footage of this demonstration can be seen in the film Jim Loves Jack: The
James Egan Story (Toronto: David Adkins Productions, n.d.).
For example, the first systematic discussion of the ideology of gay lib-
eration, which appeared in the third issue of The Body Politic in March
1972, argued that civil rights was the key issue that could unite all gays
and would thus serve as a rallying cry and point of unity for the com-
munity. Brian Waite, the author of the article, argued that "Winning
this demand, in itself, will not end our oppression, but in the process of
fighting for it many gay men and women will develop a higher level of
pride and consciousness." 26 In addition, the substantive achievement
of formal equality rights would help build the gay and lesbian move-
ment because: "With a victory, thousands more will find it easier to
come out ... without fear of losing a job or apartment, being harassed
at school, or facing discrimination in innumerable other ways because
we have no rights guaranteed by law." 27 Similarly, The Body Politic
collective argued in the spring of 1973 that
there is no contradiction between the present focus of the struggle, civil rights,
and the final object, the full liberation of the human personality, straight and
gay alike. Gays are coming to comprehend that the two are intimately inter-
connected. The present civil rights fight, which is in fact only just beginning,
will facilitate the creation and development of a gay liberation conscious-
ness .... 28
As one activist recalled:
How we saw the gay rights strategy was [as] something that would radicalize
and politicize and mobilize people and the process of being radicalized and
politicized and mobilized would mean that the people who were drawn into
the process would realize that rights in and of themselves were insufficient. ...
And I think the hope would be that in making that realization that they
would ... understand the shortcomings of the way the world was organized.29
What did civil rights mean in gay liberation ideology? Like the
US civil rights movement of the 1950s and 1960s, the "rights frames"
of the main political organizations of gay liberation emphasized formal
equality, particularly in the areas of employment and housing. If the
goal of gay liberation was societal transformation, and if building a les-
bian and gay community was key to this goal, then the first step in the
process of building a social movement was for people to "come out."
People would be more likely to do that if they had a meaning frame
available that said "gay is good," a major slogan of gay liberation in
26 Brian Waite, "Strategy for Gay Liberation," The Body Politic 3 (1972), 4. The
Body Politic (1971-1987) was Canada's premier gay liberation publication and
played an important role in the development of the Canadian lesbian and gay
rights movement.
27 Ibid.
28 Editorial, "Never Going Back," The Body Politic 8 (1973), 2.
29 Interview, Chris Bearchell, February 8-9, 1996.
294 MIRIAM SMITH
the 1970s, and when they no longer feared employment and housing
discrimination as a direct consequence of being out. The formal equal-
ity or civil rights frame, then, in the context of the gay liberation move-
ment, was a classic statement of the personal as political.
The main goal of Canadian gay liberation groups of the early
period was to plumb the radical depths of formal equality in order to
break the vicious cycle of discrimination and closetry. In both federal
and provincial jurisdiction, gay liberation organizations of the 1970s
advocated formal equality through legislative changes to human rights
codes. The impact of the assertion of right claims and litigation in gay
liberation organizations can be seen from a select survey of the politics
of some of the main organizations of the period: GATE Vancouver, 30
CGRO, ADGQ and the NGRC.
The three regional organizations discussed here, GATE Van-
couver, CGRO and the ADGQ were all involved (directly or indirectly)
in the assertion of rights claims in the courts during the 1970s. These
groups were not on the periphery of the gay liberation movement. On
the contrary, they formed its organizational, strategic and ideological
core. GATE Vancouver ( 1971-1980), despite its relatively small size,
was the main gay liberation organization in Vancouver. Its leader,
Maurice Flood, was a leading theoretician of gay liberation and its
newspaper, Gay Tide, was a major organ for gay liberation organizing
and analysis as well as providing the spark for GATE's litigation, the
Gay Tide case, the first sexual orientation case heard by the Supreme
Court of Canada. The ADGQ was a Montreal-based civil rights organi-
zation, the main gay liberation organization in Quebec at the time and,
like GATE Vancouver, had its own periodical, Le Berdache. While
Quebec's lesbian and gay rights movement has often followed a differ-
ent path, during the late 1970s there were some similarities between
Quebec and other Canadian organizations in the pursuit of civil rights
claims. However, the ADGQ case also provides the exception that
proves the rule; the inclusion of sexual orientation as a prohibited
ground of discrimination in Quebec's Charte des droits et libertes de la
personne in 1977 meant that the principal target of equality seeking in
other jurisdictions-the inclusion of sexual orientation in human rights
codes-was unavailable as a means of mobilizing the Quebec move-
ment. The third case, the Coalition for Gay Rights in Ontario, founded
in 1975, was one of the few province-wide gay rights groups in Can-
ada. CGRO's members included local community groups from smaller
urban areas who were concerned with issues such as the provision of
basic social services to their gay and lesbian populations as well as
30 There were several organizations at this time in different parts of the country that
used the GATE name. They are usually differentiated by appending their locales,
for example, GATE Vancouver and GATE Toronto.
groups such as GATE Toronto (whose members overlapped with The

Body Politic collective) and Gays of Ottawa (GO). GATE Toronto and
GO, representing urban areas, were strong advocates of gay liberation
and of the civil rights strategy. Together, these groups and others from
across the country formed the pan-Canadian National Gay Election
Coalition (NGEC) in 1974, followed by the National Gay Rights Coali-
tion (NGRC) which survived from 1975 to 1980.
The achievement of civil rights for gays and lesbians was the
major stated goal of all these groups and their strategies were an eclec-
tic mix of lobbying, organizing public pickets and demonstrations,
electoral politics and litigation itself. The strength of the rights frame
and the eclecticism of tactics can be seen in the role of the NGRC
which, as a pan-Canadian coalition of members groups, reflected the
state of gay liberation politics during this period. As gay liberation
established itself in Canada's major cities during the 1970s and as
social space opened up in smaller communities for lesbian and gay
organizing, the multiple levels of diversity that marked the community
during this time and the lack of government funding for gay or lesbian
organizations made the establishment of pan-Canadian organizations
difficult. Despite this, the 1970s witnessed the rise and demise of a
Canada-wide lesbian and gay rights coalition that, mirroring the civil
rights frame of members groups, attempted to put a broad range of
rights claims onto the Canadian political agenda. Until the advent of
pan-Canadian AIDS organizations, 31 the National Gay Election Coali-
tion of 1974 and_ the National Gay Rights Coalition were the only
nation-wide lesbian and gay organizations until the founding of Equal-
ity for Gays and Lesbians Everywhere (EGALE) in 1986.
The National Gay Election Coalition was born of the national gay
conferences that were held starting in Quebec City in 1973. While
some work had been carried out by local gay liberation groups during
the 1972 election, the establishment of the Coalition itself marked a
first step on the path to pan-Canadian organization. 32 The NGEC was
founded at the initial suggestion of GATE Vancouver in the belief that
electoral pressure would be an effective means of generating public-
ity.33 This pan-Canadian initiative for the 1974 election rested on the
efforts of activists from gay liberation groups in Toronto, Montreal,
Vancouver and, to a lesser extent, Halifax. These groups came together
over a civil rights agenda in the belief that anti-discrimination meas-
ures would unite the diverse gay and lesbian communities across Can-
ada. 34 The NGEC's 1974 campaign presented a common programme
31 Rayside and Lindquist, "AIDS Activism."

32 Ross Higgins, "L'impasse linguistique," Sortie 14 (1984), 10-11.
33 "National Gay Election Coalition," The Body Politic 6 (Autumn 1972), 11.
34 Interview, Tom Warner, September 19, 1995.
296 MIRIAM SMITH
of demands to the public, and circulated a questionnaire on gay issues

to candidates in the federal election that year. As the activists involved
pointed out, the NGEC was "the first time gay organizations across the
country worked out a common programme to present to the Canadian
public and worked together in an organized manner to bring this pro-
gramme before the candidates. " 35 The coalition prepared and pre-
sented a brief to members of parliament called Homosexuals: A Minor-
ity without Rights. In the words of The Body Politic collective, "Politi-
cians now, at least, cannot truthfully argue that they are unaware of leg-
islation or attitudes that discriminate against Canadian homosexu-
als. "36
At the annual pan-Canadian gay rights conference in 1975, the
NGEC was transformed into the National Gay Rights Coalition, which
was founded as "a civil rights organization." Its stated goals were "the
removal of all federal legislation which permits, condones, or encour-
ages discrimination against homosexuals" and "the implementation of
legislatively guaranteed civil rights for gay people. " 37 The NGRC con-
centrated on rights issues in federal jurisdiction such as the Immigra-
tion Act, the Public Service Employment Act, the Public Service Staff
Relations Act, the Divorce Act, the discriminatory practices of such
federal organizations as the Armed Forces, the Royal Canadian
Mounted Police and the Canada Mortgage and Housing Corporation,
lesbian and gay rights to child custody, the reform of age of consent
laws and the inclusion of sexual orientation as a prohibited grounds of
discrimination in the Canadian Human Rights Act. In addition, the
NGRC called for an end to the use of aversion therapy in federal peni-
tentiaries, the amendment of the dangerous sexual offender laws to pre-
vent the singling out of gay men, and the amendment of the Canada
Labour Code to prohibit discrimination on grounds of sex or sexual
orientation. 38
The NGRC was independent of political parties but viewed pres-
sure on the social democratic New Democratic party as the best bet to
result in official federal party support for gay rights. In addition, the
NGRC officially advocated the idea of test cases:
The importance of test cases in the courts has not been exploited until now.
The Coalition must seek out prospective court cases which will publicize our
demands and bring about precedent setting decisions. The NGRC would
35 Canadian Lesbian and Gay Archives (CLGA), National Gay Rights Coalition,
Proposal for a National Gay Rights Coalition, 1.
36 "No Small Accomplishment," The Body Politic 14 (1974), 2.
37 CLGA, National Gay Rights Coalition, Statement of Principles, Structure and
Programme of the National Gay Rights Coalition, adopted June 29-30, 1975 and
amended September 4-6, 1976, I.
38 Ibid., 4-5.
financially support persons involved in legal proceedings where homosexual-

ity is a substantive issue. Such test cases should be taken, if necessary, all the
way to the Supreme Court of Canada for an appeat. 39
The NGRC never actually supported a gay rights court case or pursued
a test case strategy, mainly due to lack of funding and lack of a solid
organizational base, although it extensively covered the case of Bar-
bara Thornborrow, a lesbian discharged from the Armed Forces be-
cause of her lesbianism, and used it to attract media coverage. 40 But the
idea of test cases was debated even though the legal protections for
sexual orientation discrimination were very weak. This illustrates the
strength of the rights frame to the ideology and practice of the gay lib-
eration movement at this time.
While the NGRC itself lacked the organizational capacity to sup-
port litigation, some of its member groups were involved in supporting
or undertaking litigation on anti-discrimination issues. Although many
cases of discrimination were documented in the pages of the lesbian
and gay press during the 1970s, the three cases discussed here merit
particular attention. They were high profile, generated substantial
financial and organizational support from within the gay community,
and were seen by gay rights activists as legal tests of the sfate of the
law and the attitude of the courts, as well as the means of undertaking
public education, mobilization and drawing attention to the question of
discrimination within both the lesbian and gay and straight communi-
ties. Gay liberation groups presented briefs to governments in almost
every Canadian jurisdiction during the 1970s.41 Winnipeg's Gays for
Equality emphasized the conundrums set up by gay rights opponents:
there have been no in-depth studies into the area as there have been for other
forms of discrimination .... Furthermore, most cases of discrimination never
come to light, as many homosexuals are so frightened of further social censure
that they do not seek redress, fully realizing that under the present legal sys-
tem, it would be impossible to obtain.42
Thus, the high-profile discrimination cases of the 1970s were demon-
strations that discrimination was widespread. These demonstrations of
39 Ibid., 6.
40 CLGA, NGRC Forum, Bulletin of the National Gay Rights Coalition, 2 ( 1977),
I.
41 For example, CLGA, Community Briefs, Gay Community Centre (Saskatoon),
The Homosexual Minority in Saskatchewan (June 1976); GATE Edmonton,
Homosexuals: A Minority without Rights (March 1, 1976); and Coalition for Gay
Rights in Ontario, Discrimination and the Gay Minority (Brief to members of
the Ontario Legislature, March 1978).
42 CLGA, Community Briefs, Manitoba Homosexuals: A Minority without Rights
(Brief presented to the Attorney General of Manitoba and the Manitoba Human
Rights Commission by Gays for Equality, Winnipeg, 1974), 10.
298 MIRIAM SMITII
discrimination resonated deeply within the burgeoning gay and lesbian

political communities which had first-hand knowledge that the few
cases that were brought forward were the tip of the iceberg. Moreover,
the particular cases to be profiled were used in the gay and lesbian
communities as levers for political action. They served as a rallying cry
and as an assertion of the entitlement to equality.
However, the civil rights frame did not go uncontested. While the
rights-claiming strategy was prevalent in the male-dominated gay lib-
eration movement, it was often contested by lesbian feminists who par-
ticipated in the women's movement. In their view, the largely male gay
liberation movement was imbued with sexism, and the focus on the
achievement of civil rights was a primarily male objective that would
not necessarily alleviate the multiple levels of exclusion and discrimi-
nation experienced by lesbians. Other lesbian activists contested the
civil rights strategy during the 1970s by simply ignoring it and focus-
ing instead on building the emerging lesbian community which, in
most cities, functioned separately from the gay male world. Another
source of contestation came from gay and lesbian groups outside the
major urban centres who were more concerned with the provision of
social services to their communities than with broader political issues.
Moreover, socialist activists within the movement frequently pointed to
the dangers of relying on courts, and to the dangers of seeking accept-
ance within the mainstream. Some of these groups mounted a chal-
lenge to the NGRC's civil rights focus; in the late 1970s, the coalition
faced divisive debates over lesbian representation and political versus
service-oriented priorities. However, these challenges did not dislodge
the political hegemony of the frame of rights entitlement within the
major gay liberation organizations during the 1970s. Most importantly,
none of these groups-despite their reservations about the emphasis
that was placed on rights discourses and strategies-would have fun-
damentally challenged the proposition that gays and lesbians were
entitled to equal treatment under the law. As Becki Ross has written of
the Lesbian Organization of Toronto, lesbian feminists "were ...
aware that a civil-rights strategy was insufficient to combat the sexual
and gender oppression experienced by lesbians, hence their endorse-
ment of legal reform as a politically smart yet insufficient priority. '' 43
Litigation 1: CGRO and the Damien case

One of the first groups to support an anti-discrimination case in the
courts was Ontario's province-wide Coalition for Gay Rights in
Ontario. Although nine groups from five Ontario cities took part in the
43 Becki Ross, The House that Jill Built: A Lesbian Nation in Formation (Toronto:
University of Toronto Press, 1995), 164-65.
founding conference of CGRO in 1975, the main political impetus for

its founding came from the politically active urban gay rights groups.
GATE Toronto and GO, both of which had a strong gay liberation and
civil rights orientation. CGRO's main aim was reform of the Ontario
Human Rights Code to include sexual orientation as a prohibited
ground of discrimination. However, the code amendment (which was
eventually achieved in 1986),44 was not seen as an end in itself.
GATE's original proposal for the Coalition pointed out that civil rights
issues, especially private discrimination, fell under provincial jurisdic-
tion, and that focusing on changing Ontario's Human Rights Code was
an issue that was "of immediate and personal relevance to the vast
majority of gays." The argument continued: "No one can deny, for
example, that one of the principle factors in forcing the vast majority of
us to remain in the closet to one extent or another is the fear of job dis-
crimination." According to the proposal, public attitudes towards
homosexuality could not be legislated and, in any case, the Ontario
Human Rights Commission was a weak organization in terms of en-
forcement of the rights of minorities.45 Nonetheless, "the importance
of winning this demand is that it would force the government to recog-
nize that we are entitled to the same rights which are theoretically ac-
corded to other minorities." 46 The assertion of entitlement, in CGRO's
view, would appeal to the majority of gays and lesbians.
While CGRO's main demand centred on amending the Human
Rights Code, it was also concerned about other issues, such as educa-
tion, child custody and adoption. 47 Its tactics included public events
such as demonstrations and rallies, as well as using electoral cam-
paigns for public education.48 In order to bring gays out of the closet
and build the gay community, CGRO, like other gay liberation groups
at the time, focused in particular on the public side of political de-
mands. CGRO's thinking on obtaining the Ontario Human Rights Code
amendment was typical: securing support from the gay community
(mainly providing information about the code); obtaining support from
political parties; the preparation of a brief to the government, and pub-
lic action such as demonstrations. 49
44 Rayside, "Gay Rights and Family Values."

45 R. Brian Howe, "The Evolution of Human Rights Policy in Ontario," this JOUR•
NAL 24 (1991), 783-802.
46 CLGA, Coalition for Gay Rights in Ontario, 82-07/01/13, "Letter to Gays of
Ottawa from GATE" (emphasis in the original).
47 CLGA, Coalition for Gay Rights in Ontario, "Memo to groups," August 23,
1976.
48 CLGA, Coalition for Gay Rights in Ontario, 82-017/01/4, "Working Paper for
Provincial Affairs Workshop.''
49 CLGA, Coalition for Gay Rights in Ontario, 82-017/01/13, "CGRO Strategy to
Put Sexual Orientation in the Ontario Human Rights Code-Phase 2,"
September 4, 1977.
300 MIRIAM SMITH
From the beginning, CGRO was concerned to find test cases

which would both document and publicize the problem of anti-gay dis-
crimination. The organization found exactly such a case in John Dam-
ien, a jockey and racing steward who had been fired by the Ontario
Racing Commission after a 20-year career. 50 Prior to being fired, Dam-
ien had not been active in gay politics, according to his own account.
However, following his firing, he saw an advertisement for GATE
Toronto in a gay bar and called. From this phone call came the lesbian
and gay movement's 12-year involvement with his case. Initially,
Damien took his case to the Ontario Human Rights Commission, argu-
ing that sexual orientation was implicitly included in the provincial
Human Rights Code. The Commission, however, declined to accept his
complaint. Damien then undertook a civil suit for wrongful dismissal
which was eventually settled out of court. The wrongful dismissal case
took years to wind its way through the courts and public attention was
difficult to sustain, in part because of the threat of libel action. 51 Fol-
lowing GATE's initial involvement in the case, CGRO founded an
independent committee, the Committee to Defend John Damien, to
support the Damien defence. The Committee worked with Damien and
his lawyers to generate support for the case both within the gay com-
munity and beyond, linking it to the. broader issue of civil rights for
gays and to the specific demand for reform of the Ontario Human
Rights Code. In addition, the Committee organized fund raising for
legal costs, called upon the Ontario government to appoint a govern-
ment inquiry into the actions of the Racing Commission and the minis-
try responsible for it, the Ministry of Consumer and Commercial Rela-
tions, and, in the absence of the specific inclusion of sexual orientation
in the code, demanded a broadening of the term "sex" in the existing
code to include sexual orientation. Eleven years after the founding of
the Committee to Defend John Damien, the Ontario Human Rights
Code was amended to include sexual orientation. 52 Damien himself
died six days later.
The Damien case was the cause celebre of the gay political com-
munity in the mid- to late-1970s and, from the beginning, gay libera-
tion activists saw the potential of the case to mobilize its own constitu-
ency. The facts surrounding Damien's dismissal were clear-cut: he had
been told he was being fired for being a homosexual.53 At a time when
50 CLGA, Coalition for Gay Rights in Ontario, "CORO: Success or Failure?"

51 Arnold Bruner, "Sexual Orientation and Equality Rights," in Anne F. Bayefsky
and Mary Eberts, eds., Equality Rights and the Canadian Charter of Rights and
Freedoms (Toronto: Carswell, 1985), 460-61; Herman, Rights of Passage, 23;
and Ken Popert, "John Damien," The Body Politic 135 (1987), 15.
52 Ibid.
53 Ibid.
governments routinely claimed that there were few documented cases

of employment discrimination against gays, Damien's case drew atten-
tion to the very fact of discrimination. In addition, Damien himself was
willing to fight his own case at a tremendous financial, professional
and personal cost. The denial of Damien's complaint by the Ontario
Human Rights Commission drew attention to the need to amend the
Human Rights Code. Most importantly, the Damien case spurred gay
and lesbian organizing and community building around the assertion of
political identity and the claim for equal treatment. The case, along
with the broader mobilization of which it was a part, laid the ground-
work for an ongoing gay and lesbian community that continued to
assert rights claims at the Ontario and federal levels in the 1970s and
beyond. Thus, during The Body Politic trials and the 1978 and 1981
Toronto bath raids, when the gay liberation movement was forced to
defend itself in the courts, the state's attempts to repress gay sexuality
and gay politics were turned into political claims for the right to pri-
vacy with the establishment of The Right to Privacy Committee in
1978.54 Equality seeking and the assertion of entitlement had rooted it-
self successfully in the politically active Toronto lesbian and gay com-
munity so that repression was met with rights claims.
Litigation 2: GATE Vancouver and the Gay Tide Case

Another important case, and probably the best example of the pro-
active use of litigation as a deliberate strategy to assert gay civil rights
was that of GATE Vancouver v. the Vancouver Sun. GATE Vancouver
was a male gay liberation group which combined a Marxist analysis of
capitalist society with a feminist and gay liberation analysis of hetero-
sexism and patriarchy. Like the other groups included here, GATE's
programme included civil rights demands as a key element in gay liber-
ation, and its tactics emphasized public action, in keeping with the goal
of bringing gays and lesbians out of the closet and of building a sense
of social and political identity.55 From its inception, GATE demanded
54 On the bath raids and The Body Politic trials, see Ed Jackson and Stan Persky,
eds., Flaunting It! A Decade of Journalism from The Body Politic (Vancouver
and Toronto: New Star Books and Pink Triangle Press, 1982); Tim McGaskell,
"The Bath Raids and Gay Politics," in Frank Cunningham, ed., Social Move-
ments, Social Change: The Politics and Practice of Organizing (Toronto: Be-
tween the Lines, 1988), 169-88; and Gary Kinsman, The Regulation of Desire:
Homo and Hetero Sexualities (2nd ed.; Montreal: Black Rose Books, 1996),
338ff.
55 See, for example, GATE's constitution, Archives Collective (Vancouver), Gay
Alliance Toward Equality (GATE), "Constitution,'' 1971, 1973.
302 MIRIAM SMITH
the revision of British Columbia's human rights legislation to include

sexual orientation as a prohibited ground of discrimination. With the
election of the NOP government in BC in 1973, GATE presented its
position on the need for a legislative change to the government. The
minister of labour, responsible for the Human Rights Code, responded
to GATE's lobbying effort by telling GATE members that "homosex-
uality should not receive the benefit of legal sanction,'' a statement that
was publicized by GATE itself. In fact, GATE publicized its entire cor-
respondence with the government, after which the government agreed
to a meeting to discuss BC' s human rights legislation. When the new
legislation was finally enacted, however, it did not include sexual ori-
entation, although the government claimed that the code's new "rea-
sonable cause" clause would protect gay rights. GATE immediately
held a demonstration to protest the exclusion of gay rights from the
code.
Like other gay liberation groups of the period, GATE itself had
been the object of discrimination. The Vancouver YMCA had refused
to rent a room to GATE for a public meeting in 1971 (the ADGQ's
court case would also concern discrimination in renting space for meet-
ings), a Vancouver printing shop had refused to print a leaflet for a gay
dance and the Vancouver Sun had refused to print a GATE advertise-
ment in 1973. The advertisement read: "Subs. to GAY TIDE. gay lib.
paper. $1.00 for 6 issues. 2146 Yew St. Vancouver." As one legal
scholar has commented, "seldom has an advertisement that was re-
fused publication achieved wider exposure." 56 According to the Sun, it
was refused because it offended public decency.
With the passage of the new human rights legislation and the NOP
government's promise that "reasonable cause" would cover sexual
orientation, GATE decided to resubmit its advertisement to the Van-
couver Sun. Once again, the Sun refused it, thus providing the grounds
for GATE's deliberate test of the provisions of the new code. The case
was referred to the minister of labour, who appointed a board of in-
quiry. The board held that there had been a violation of the code, that
the Sun was indeed motivated by bias and that its decision to refuse the
advertisement was discriminatory. The Sun appealed this decision to
the Supreme Court of British Columbia and lost. The Sun appealed to
the BC Court of Appeal, which ruled that the newspaper had "reason-
able cause" to turn down the ad. In tum, GATE appealed to the Su-
preme Court of Canada, which ruled that freedom of expression and
freedom of the press-in this case, the freedom not to print some-
thing-trumped minority civil rights.57
56 W.W. Black, "Gay Alliance Toward Equality v. Vancouver Sun," Osgoode Hall
Law Journal 17 (1979), 649.
57 Jeff Richstone and J. Stuart Russell, "Shutting the Gate: Gay Civil Rights in the
Supreme Court of Canada," McGill Law Journal 97 (1981), 92-117; Richard A.
This case was the fruit of a deliberate strategy by a gay liberation

group to provoke discrimination in order to fight it. As GATE later edi-
torialized: "In part it was the conscious political intention of Gate that
the case should strip away any illusions about our status" 58 and "what
was 'on trial' was the very social legitimacy of same-sex love and its
physical expression and by extension, the right of those of us who de-
fine ourselves as lesbians and gay men, to enjoy full equality before the
law." 59 GATE's audience was in large part the gay and lesbian commu-
nity itself. For closeted gays, GATE wanted to build the consciousness
and identity that would aid in the construction of a social movement.
As one GATE activist recalled,
We were conscious, very conscious, [that] it wasn't just a matter of acquiring
civil rights, we were building the mass movement, we were building a com-
munity identity. The use of civil rights, the demand for those rights was legiti-
mate in itself, but at the same time, we were consciously, deliberately building
a minority identity ... trying to encourage people to take on that identity, try-
ing to build a community ... and so there wasn't any real contradiction be-
tween writing briefs, and street demonstrations. They ... went hand in hand
with one another and that was very consciously and deliberately framed by us
as a strategy that we would use. 60
In this way, litigation was employed as one strategy among many.
As Gay Tide argued,
The legal parameters of our oppression have placed us in the Courts. This has
become one form of struggle among many. We seek to utilize this limited
forum to our best advantage. However, we are fully conscious that it is only by
organizing ourselves into a political force to take what is ours that we will ever
be free. 61
In addition to litigation, GATE used other tactics in pressing its
case, including holding demonstrations and pickets, lobbying and
meeting with the government as well as using the media (for example,
releasing the minister's homophobic remarks and, in general, refusing
to conduct secret meetings with the government). GATE's strategy was
by no means unique. In Quebec, where the gay liberation· movement
arrived somewhat later than in the rest of Canada, the civil rights strat-
egy was pursued.
Goreham, "Human Rights Code of British Columbia," Canadian Bar Review 59

(1981 ), 165-79; and Harry Kopyto, "The Gay Alliance Case Reconsidered,"
Osgoode Hall Law Journal 18 (1980), 639-52.
58 "Gate vs. Sun: A Chronology of the Case," Gay Tide 17 (1977), 2-3; and "Su-
preme Court to Hear First Gay Rights Case," The Body Politic 43 (1978), 7.
59 "On to the Supreme Court," Gay Tide 17 (1977), 2-3.
60 Interview, Don Hann, February 14, 1996.
61 "Gate vs. Sun," 2.
304 MIRIAM SMITH
Litigation 3: The ADGQ and the Commission des ecoles

catholiques de Montreal
The ADGQ was founded in the fall of 1976, following on the heels of
the Coalition Against Repression, a Montreal-based gay liberation
group. The Coalition itself had been formed as a result of the bath raids
that had occurred in 1975 and 1976, as well as the anti-gay police
repression ("clean-up"} of the City of Montreal for the 1976 Olym-
pics. In October 1977, there were more bath raids, as 138 men were
arrested at Truxx. 62 The context for the establishment of the ADGQ
was different from that of the early Toronto and Vancouver gay libera-
tion groups; organizing came somewhat later to Montreal than to other
cities, and arose in part as a reaction to the bath raids and the police
repression. In Toronto, in contrast, the gay liberation movement was
already well established in the pursuit of rights claims prior to the
worst attempts at repression, the 1978 and 1981 bath raids and the re-
peated (and failed) attempts to prosecute The Body Politic.
Like other gay liberation groups, ADGQ espoused a radical gay
liberation ideology: "Notre lutte s'achevera quand les termes memes
d'heterosexualite et d'homosexualite auront disparu du vocabulaire,
fondus dans une veritable indifferenciation des pratiques sexuelles. " 63
At the same time, the ADGQ defined itself as a civil rights organiza-
tion: "L' ADGQ est une organisation ... de liberation gaie avec une
perspective de lutte publique pour les droits civils des gais et les-
biennes. " 64 One of the first activities of the ADGQ was to present a
brief to the Commission des droits de la personne (CDP) demanding
the inclusion of sexual orientation in Quebec's Charte des droits. In-
deed, the Commission recommended this to the newly elected Parti
Quebecois government. The government acted to change the provincial
charter in 1977, making Quebec the first jurisdiction in Canada to
include sexual orientation as a prohibited ground of discrimination in
human rights legislation. 65 Almost immediately after the code change,
questions arose about the efficacy of the provision. In 1978, the CDP
ruled against the ADGQ in a case involving the rental of premises for
ADGQ meetings by the Commission des ecoles catholiques de Mont-
62 Ron Dayman, "Quebec: Five Years of the Movement," The Body Politic 29
(1976), 20-23; Ross Higgins, "Pour une histoire gaie de Montreal," Sortie 4
(March 1983), 7; "Dubon boulot. .. et un peu d'essoufflement," /2··Berdache 5
(November 1979), 3; and "Les gai(e)s du Quebec protestent," Le Devoir (Mont-
real), October 24, 1977, 6.
63 Le Berdache 22 (1981), 38 (emphasis in the original).
64 Ibid., 46.
65 Fran~ois Barbeau, "Les homosexuels reclament une nouvelle formulation des
droits civils," Le Devoir (Montreal) October 27, 1977, 9; Gilles Garneau, "Vic-
toire pour les gais," Le Berdache 6 (1979-1980), 7-9; and Stuart Russell and
Michael Lynch, "Gay Rights: Oui!" The Body Politic 40 (1978), 4-5.
. Social Movements and Equality Seeking 305
real (CECM). In November 1977, just after the Truxx raid and before
the change to the Charte des droits, the ADGQ had requested a room
rental from the school board. The CECM had refused. As in the GATE
Vancouver case, once the legislation had been changed in December
1977, the ADGQ again requested a room rental from the board in a
deliberate test of the new provisions. The board agreed to rent the room
but reneged on the decision two months later, citing the "retombees
possibles sur !'education des enfants." 66 The ADGQ immediately filed
a complaint with the CDP. A COP inquiry found that the school
board's action was discriminatory. However, this ruling was rejected
by COP commissioners who permitted the discrimination based on
section 20 of the Charter that permitted discrimination which could be
justified by, among other things, the religious and educational goals of
a nonprofit organization. Following this decision, the ADGQ formed a
committee to pursue a legal case against the school board. As part of
this strategy, the ADGQ again requested a room from the board and
was again refused at which point they filed a declaratory motion in
Quebec Superior Court, marking the first challenge by a gay group to
discriminatory action in Quebec, and the first case challenging section
20 of the Quebec Charter. 67
The CECM claimed that its educational and religious objectives
justified its refusal to rent space to a group whose behaviour was con-
demned by the church. In its case, the ADGQ was able to show that the
CECM had rented space to non-Catholics and to political parties. The
group argued that section 20 was a loophole in the law and asked how
much human rights protection was worth if "pour exiger son applica-
tion un groupe comme le notre, aux ressources limitees, doit depenser
argent et temps dans un long et tres co0teux proces. " 68 The ADGQ
activists saw the case as concerning not simply rental of space to
groups but "la reconnaissance du plein droit a une orientation sexuelle
differente .... " 69 In November 1979, the Court found in favour of the
ADGQ, restricting the scope of the application of section 20. 70
In general, the ADGQ's case did not provide the drawing card for
gay rights organizing in Montreal that the GATE Vancouver and Dam-
ien cases had provided in BC and Ontario. The ADGQ had disbanded
by the mid-1980s and, unlike CGRO, did not provide a base for an
ongoing provincial gay rights organization. The change to provincial
human rights legislation-the key goal in other jurisdictions-was
66 Garneau, "Victoire pour Jes gais," 7.

67 Ibid.
68 "Editorial," Le Berdache 3 (1979), I.
69 "I 980: une menace, une promesse," Le Berdache 7 (February 1980), 3.
70 Garneau, "Victoire pour Jes gais," 7-9. See also Nicole Duple, "Homosexualite
et droits a l'egalite dans Jes Chartes canadienne et quebecoise," Les Cahiers de
droit 25 ( 1984), 836ff.
306 MIRIAM SMITH
achieved earlier in Quebec than elsewhere but at a time when Quebec

gay and lesbian groups had yet to solidify their organizational base,
thus removing one possible rallying point for the lesbian and gay com-
munities. In addition to the linguistic politics that divided the poten-
tially powerful Montreal gay and lesbian community and the presence
of a progressive nationalist movement that attracted activist energies,
the early victory for formal equality (however limited) may have
undercut gay liberation mobilization.71 Hence the short duration of the
struggle to assert rights claims denied the Quebec movement a mecha-
nism and a frame for building political identification and community.
Conclusions
In 1979, the activist Michael Lynch wrote an article in The Body Politic
entitled "The End of the 'Human Rights' Decade." 72 Lynch saw the
1970s as a period in which gay liberation defined lesbian and gay poli-
tics, with the fight for civil rights at its centre. Lynch felt that the civil
rights goal had been useful in providing a focus, and that the result had
been that
There is now a gay community that sees itself, and is seen by others, as a polit-
ical "minority." Gay life has been brought to public consciousness; the facts
of oppression, real and undeniable, have been made known. The strategy built
to achieve human rights legislation may have failed in that one aim, but it has
been wildly successful in fulfilling other, subsidiary goals which may finally
prove more valuable than a few changes in law. 73
And, indeed, the civil rights campaigns of the 1970s were part of the
story of the creation of a new social movement and political actor in
Canadian politics.
The central place of rights demands and rights discourse in the
ideology and strategy of gay liberation during the 1970s, while not
uncontested, has several implications for the broader questions about
the impact of the entrenched Canadian Charter of Rights and Freedoms
on social movement organizing and ideology. During this period, there
was no clear separation between human rights issues and other political
demands. Human rights were seen as a means of creating, if only sym-
bolically, one political identity in which all members of the diverse les-
bian and gay communities could share, that of a minority group which
could challenge Canadian society in terms of its own liberal values.
71 Ross Higgins discusses the reasons for a distinct gay politics in Quebec in
"L'impasse linguistique," Sortie 14 (1984), 9-10.
72 Michael Lynch, "The End of the 'Human Rights' Decade," The Body Politic 54
(1979), 25-26.
73 Ibid., 26.
The fact that the lesbian and gay community was in itself diverse in
many respects was irrelevant to the actual assertion of the political
claim. In the view of political activists, human rights served as rallying
point for building the movement. Many were gay liberationists and
Marxists who were looking for a radical re-ordering of sex/gender
roles in society, the elimination of heterosexism and patriarchy. Such a
radical re-ordering was unlikely to occur through a human rights strat-
egy premised on the inclusion of gays and lesbians as a minority group
in existing human rights codes, and on the inclusion of sexual orienta-
tion as a prohibited grounds of discrimination. Yet, such cases were
seen as the strategic means for building lesbian and gay community
and consciousness. Failure of the cases themselves only served to high-
light the battle to be fought and the necessity for political action and
political identity. At the very least, activists hoped that such cases
would help create a sense of common identity and community.
Thus the tendency of left-wing Charter critics to separate
equality-seeking frames and strategies from broader political or grass-
roots mobilization does not fit the gay liberation movement of the
1970s. Litigation as a tactic and rights as a goal were not seen as
antithetical to grass-roots mobilization; activists saw these as linked,
not as contradictory strategies. Rights struggles were viewed as part of
politics, not as separate from the political arena. The potential contra-
dictions of pursuing a rights-based strategy that have been pointed out
by Charter critics like Mandel, and by those working in the area of les-
bian and gay politics such as Herman, were not sufficient to dislodge a
rights-claiming politics during the 1970s. The stark alternatives that are
sometimes posed in the literature between radicalizing strategies that
challenge existing categories of oppression and conservative strategies
imposed by the formal-legal rights order, and between the strategies of
grass-roots mobilization that empower people "at the bottom" versus
the court challenges that empower lawyers and other elites "at the top"
are polarities that were largely absent from the gay liberation move-
ment itself. The contestation that did emerge was diffuse and sub-
merged, in part because the most powerful critiques came from lesbian
feminists who were active members of the women's movement. Yet
even women whose politics were centred in the emerging women's
communities and in the women's movement did not deny the legiti-
macy of equal rights. They simply pursued the ideals of equality and
liberation in a different political movement, or through the creation of
community rather than through formal political organizations.
Even in the pre-Charter period, test cases were sought out by local
groups and carried forward at an incredibly high financial and organi-
zational cost, despite the fact that legal protections were much weaker
than they would be in the subsequent decade. This demonstrates that
the rights-claiming frame has stronger roots in Canadian politics than
308 MIRIAM SMI1lf
some readings of the Charter's impact would lead us to believe. The

Charter did not "Americanize" the gay liberation movement; in a
sense, the gay liberation movement of the 1970s was already "Ameri-
canized" in terms of its deployment of a civil rights frame and strategy.
This illustrates that, while legal barriers may be stronger or weaker,
and the political opportunity structure may be more or less closed to
equality seeking by excluded groups, rights claiming may still provide
the frame and the strategy for social movement politics. Gay liberation-
ists had a very clear understanding of Scheingold's "myth of rights."
The activists involved in supporting or pursuing these cases were not
wide-eyed innocents in the use of the courts. On the contrary, they had
ideologically elaborate and sophisticated justifications for pursuing
rights claims. While much debate on the effects of the Charter focuses
on substantive gains that have been made, or could potentially be
effected, through court decisions, gay liberationists were wielding a
symbolic politics that created a new way of thinking about the place of
gays and lesbians in Canadian society. By asserting a gay and lesbian
right to entitlement, in creating a gay and lesbian "community" as a
mythical unity of rights-bearing citizens (however diverse in reality),
they were engaged in building a political movement. That the cases
might fail was just further fodder for mobilization. As the case of Que-
bec suggests, legal and legislative victory-the achievement of sub-
stantive policy gains-could actually undermine the potential for mo-
bilization and the creation of political identity. This is not to say that
equality seeking was the sole cause of the creation of lesbian and gay
communities in Canada's main urban areas over this period, or that it
was the sole cause of the creation of modern lesbian and gay political
identities. However, it is to say that the activists who were framing les-
bian and gay rights demands in the 1970s viewed rights and liberation
as related aspects of the same struggle. Rights claims were defined as a
part of gay liberation ideology and functioned within the ideology as a
particular discourse that was intended to mobilize the lesbian and gay
communities.
If this holds true for the 1970s, then it suggests that the Charter's
impact on social movement framing and strategy in the 1980s and
beyond must be evaluated in the historical context of each movement,
particularly in terms of the degree of engagement (or lack of engage-
ment) with equality seeking as a political strategy prior to the Charter.
For some groups, equality seeking may indeed be an effect of Charter
engagement; for others, such as the lesbian and gay rights movement, it
is not. In exploring the effect of the Charter on social forces in the con-
temporary period, equality seeking must be understood as a strategy
and meaning frame that may have a greater effect on the mobilization
of social movements (or other organized interests) than it has on the
actual and potential policy gains that such groups may achieve under
the Charter. From a comparative perspective, the case demonstrates

that even when changes in the political opportunity structure are rela-
tively major by the standards of advanced capitalist democracies, as in
the case of the entrenchment of the Charter, the impact of such changes
on social movements must be considered in terms of each movement's
distinctive ideological and organizational histories. Social movements
may exploit the political opportunity structure, even when it disadvan-
tages them, as the pre-Charter legal structure disadvantaged the lesbian
and gay cause. The impact of the political opportunity structure on the
processes of movement building may be as great or, in some cases,
greater than its impact on the movement's capacity to influence the
state directly.
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Social Movements and Equality Seeking:

The Case of Gay Liberation in Canada*

MIRIAM SMITH Carleton University

Since the constitutional entrenchment of the Canadian Charter of

Miriam Smith, Department of Political Science, Carleton University, Ottawa, Ontario

tive. This debate is especially lively in the literature on interest organi-

5 Rainer Knopff and F. L. Morton, Charter Politics (Scarborough: Nelson, 1992),

groups of people to fashion shared understandings of the world and of

9 Cited in Doug McAdam, John D. McCarthy and Mayer N. Zald, "Introduction,"

and constitutional identities. 12 Cairns's work has explored the impact

12 Alan C. Cairns, Disruptions: Constitutional Struggles from the Charter to

1960s, were central to the framing of gay liberation ideology in Can-

achieving social change primarily through formal political strate-

22 Gerald N. Rosenberg, The Hollow Hope (Chicago: University of Chicago Press,

Gay Liberation in the 1970s: The Role of Right Claims

As one activist recalled:

groups such as GATE Toronto (whose members overlapped with The

31 Rayside and Lindquist, "AIDS Activism."

of demands to the public, and circulated a questionnaire on gay issues

financially support persons involved in legal proceedings where homosexual-

discrimination resonated deeply within the burgeoning gay and lesbian

Litigation 1: CGRO and the Damien case

founding conference of CGRO in 1975, the main political impetus for

44 Rayside, "Gay Rights and Family Values."

From the beginning, CGRO was concerned to find test cases

50 CLGA, Coalition for Gay Rights in Ontario, "CORO: Success or Failure?"

governments routinely claimed that there were few documented cases

Litigation 2: GATE Vancouver and the Gay Tide Case

the revision of British Columbia's human rights legislation to include

This case was the fruit of a deliberate strategy by a gay liberation

Goreham, "Human Rights Code of British Columbia," Canadian Bar Review 59

Litigation 3: The ADGQ and the Commission des ecoles

66 Garneau, "Victoire pour Jes gais," 7.

achieved earlier in Quebec than elsewhere but at a time when Quebec

some readings of the Charter's impact would lead us to believe. The

the Charter. From a comparative perspective, the case demonstrates

CUIJURE Paddy Scannell, Philip

Media, Culture & Sodety provides a major international

I Visit tbe SAGE website: http://WWUJ.sagepub.co.ul,/

Q Yes! I want to subscribe to Media, Culture &

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