Homophobia and Homonationalism: LGBTQ Law Reform in Canada
| Published date | 01 February 2020 |
| Date | 01 February 2020 |
| Author | Miriam Smith |
| DOI | 10.1177/0964663918822150 |
| Subject Matter | Articles |
Article
Homophobia
and Homonationalism:
LGBTQ Law Reform
in Canada
Miriam Smith
York University, Canada
Abstract
This article explores the tensions and contradictions between the recognition of
same-sex relationships and the development of legal prohibitions against discrimination
on the one hand versus the ongoing symbolic and actual criminal regulation of gay sex
on the other hand. I describe these tensions as they have unfolded over the last 40 years
through the most recent attempts by the Liberal government of Justin Trudeau, elected
in 2015, to reform the criminal law, to expunge the record of past criminal convictions
for same-sex behavior, and to apologize and compensate lesbian, gay, bisexual, trans-
gender, queer (LGBTQ) communities for past discrimination. I argue that this bifurcated
pattern of public policy change and legal reform demonstrates the persistence of political
homophobia alongside of homonationalist celebration of queer normativity. By consid-
ering the federal government’s long-standing failure to reform criminal laws that
encapsulate formal-legal inequality of LGBTQ people, the article highlights the persis-
tence of homophobic public policy alongside homonationalist policy discourse and
genuine progress in the legal recognition of queer rights. I conclude by considering the
implications of this mix for theorizing homophobia and homonationalism in law and
policy.
Keywords
Anal sex, apology, Canada, expungement, homonationalism, homophobia, LGBTQ law
reform
Corresponding author:
Miriam Smith, Department of Social Science, York University, 4700 Keele St., Toronto, ON M3J1P3, Canada.
Email: mcsmith@yorku.ca
Social & Legal Studies
2020, Vol. 29(1) 65–84
ªThe Author(s) 2019
Article reuse guidelines:
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DOI: 10.1177/0964663918822150
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Introduction
In recent years, lesbian, gay, bisexual, transgender and queer (LGBTQ) people have
emerged into the limelight of politics and policy in Canada as elsewhere. Whether
debates over same-sex marriage or the current Canadian Prime Minister (Justin Trudeau)
marching in Pride parades, ‘gay rights’ has become an international signifier of Canadian
diversity and tolerance. Yet, as this article will show, Canadian progress in the legal
recognition of LGBTQ rights has been accompanied by homophobic public policy that
sanctions the symbolic and actual criminalization of anal sex. This article explores the
tensions and contradictions between the recognition of same-sex relationships and
the development of legal prohibitions against discrimination on the one hand versus the
ongoing symbolic and actual criminal regulation of gay sex on the other hand. I selec-
tively describe these tensions as they have unfolded from the 1969 (partial) decrimina-
lization of homosexuality through the most recent round of LGBTQ law reform by the
Liberal government of Justin Trudeau, elected in 2015. I argue that this bifurcated
pattern of public policy change and legal reform demonstrates the persistence of legal
homophobia alongside homonationalist celebrations of queer inclusion. I then consider
the implications of this analysis for contemporary theorizing about queer politics and
law.
Much discussionof contemporary LGBTQ politicsin countries such as Canada empha-
sizes the roleof homonormativity and homonationalism. In thisview, advances in LGBTQ
rights recognition privilege same-sex couples who are just like straights except for their
sexual orientation. They are thus ‘normative’ but ‘homo’ and, hence, ‘homonormative’.
Some discussionsof homonormativity also emphasize the link to neoliberalism, seeingthe
domesticated same-sex couples as contributing to neoliberal values of responsibilization
and privatization (Duggan, 2002). Discussions of homonationalism have emphasized the
ways in which mainstream LGBTQ politics has linkedthe pursuit of rights to the celebra-
tion of nationaltolerance in contrast tothe racialized other, especially Muslims inthe wake
of the war on terror (Puar, 2007). Other work has emphasized the racialized nature of
mainstream LGBTQ political and legal activism in cases such as Canada’s, including the
overwhelming dominance of Whites in the movement and the ways in which the move-
ment appropriated the rhetoricof US civil rights in the pursuitof marriage equality (Lenon,
2005, 2011). In the North American context, a number of scholars have recently consid-
ered the impact of settler colonialism for the politics of queer movements, exploring the
ways in which queer movements have perpetuated the legacies and ongoing practices of
colonialism (Morgensen, 2010; Smith, 2010).
In contrast, this article follows in the footsteps of recent scholarship emphasizing the
political persistence of homophobia, even in what Browne and Nash (2014: 332) call ‘the
places where we have won’. By considering the federal government’s long-standing
failure to reform criminal laws that encapsulate formal-legal inequality of lesbians, gay
men, and bisexuals, compared to straights, the article highlights the persistence of
homophobic public policy alongside homonationalist policy rhetoric and genuine prog-
ress in the legal recognition of LGBTQ rights. I conclude by considering the implications
of this mix for theorizing homophobia and homonationalism in law and policy. The
concept of homonationalism excludes systematic consideration of legal homophobia and
66 Social & Legal Studies 29(1)
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