February 2023: 2SLGBTQI-Related Legal Developments and News in Canada and Internationally

March 7, 2023

Not every legal development or decision with relevance for 2SLBGTQI people in Canada makes the front page. To make it easier for community members and advocates to keep up with legal news in Canada and around the world, Egale publishes a monthly roundup of case law and news items related to 2SLGBTQI people and issues.

This month, we bring you some major developments on the international stage, including the deepening crisis of transphobia in the US and the denouncement of laws that criminalize same-sex sexual behaviour by the leaders of the Catholic Church, the Church of England, and the Church of Scotland.

Case Law 

KO v Nova Scotia (Human Rights Commission), Supreme Court of Nova Scotia

Heard January 25th, 2023; decision dated February 14th, 2023.

• A candidate for an articling position at a law firm alleged discrimination during the hiring process to the Nova Scotia Barristers Society and to the Nova Scotia Human Rights Commission.
• She claimed that she had been discriminated against on the basis of numerous protected grounds, including sex, sexual orientation, gender identity, gender expression, age, and mental disability. Among other claims, she said that the lawyer who interviewed her asked during an interview if she was gay and suggested young women should be interested in practicing family law. The interviewing lawyer denied the allegations.
• The Nova Scotia Human Rights Commission dismissed the complaint as without merit at the preliminary stage in March of 2022. The Supreme Court of Nova Scotia was satisfied the Commission had addressed the complaint appropriately and dismissed the application for judicial review.

Canadian News

Charges dropped against man who vandalized Pride flags

• In June of 2022, a man was arrested for stealing or defacing several Pride flags in Norwich Township, ON. He was charged with theft under $5000 and with mischief. Later that month, he addressed Norwich Township for half an hour with a homophobic speech that compared 2SLGBTQI people to Nazis.
• Court documents obtained by reporters this month reveal that the charges against the man were withdrawn by Crown prosecutors in December of 2022 after he completed a direct accountability program. It is unknown exactly what form this program took.
• 2SLGBTQI advocates in Oxford County were angered and “disgusted” by the Crown’s decision not to follow through with prosecution, according to the CBC. 

Toronto cancels plans to develop Hanlan’s Point after resistance by 2SLGBTQI community

• The beach at Hanlan’s Point on the Toronto Islands has served as a gathering place for the city’s 2SLGBTQI community for decades and has been called “Canada’s oldest surviving queer space.” 
• The City of Toronto had proposed a development plan that would have created an “open-air event space” on the event lawn close to the beach for hosting “Island-sized festivals and cultural events,” according to the CBC. 
• Following overwhelming pushback by the 2SLGBTQI community, the City agreed to scrap its plans. 2SLGBTQI advocates were concerned about the loss of the beach as a 2SLGBTQI space, the possibility of harassment by eventgoers, as well as the environmental impact of bringing so many people and permanent infrastructure to Hanlan’s Point.

International News 

United States 

Parents demand that a children’s book on gender diversity by a Quebec author be removed from public library’s shelves

• A local library in the rural US town of Dayton, Washington, has been flooded with demands to take Quebec author and illustrator Élise Gravel’s children’s book about gender diversity off the shelves.
• The library received threatening messages on social media and 90 people – compared to the usual one or two – showed up at the library board meeting. Of these, about half were there to demand that this book and certain other books related to BIPoC and 2SLGBTQI communities be removed, according to the CBC’s sources. 
• The library moved some of the children’s books that were the subject of complaints to a “parent-read-with-child” section. However, this decision is currently under appeal.

Tennessee’s anti-drag law is the first of many similar proposed bills to pass in the US 

• Tennessee lawmakers passed a bill thar bans what it calls “adult cabaret entertainment” from occurring anywhere it could be seen by children. It includes “male or female impersonators,” by which it means drag performances, under this definition.
• The bill is an amendment of existing state law preventing “adult-oriented businesses” from operating within 1,000 feet of schools, public parks or places of worship.
• Under the bill, a first offence would be a misdemeanour crime, and a subsequent offence a felony, carrying a sentence of between one and six years in prison.
• The Tennessee legislation is one of more than 20 bills across the US targeting drag. 

Gender-affirming healthcare for youth becomes target of Republican legislative agenda

• Republican legislators across the United States have escalated a campaign to ban certain healthcare for transgender youth, in some cases seeking to charge parents and doctors with child abuse if they provide treatment. 
• This year’s legislative agenda, unprecedented in the number and scope of bills around trans issues, also includes measures to block teachers from using pronouns that match a student’s gender identity, ban trans girls from playing on girls’ sports teams and require trans people to use the bathroom corresponding to their sex assigned at birth. 
• Republicans have introduced more than 300 bills in 33 states aiming to limit transgender and wider LGBTQ rights this year, more than double the number of such bills filed in 2022. In addition to the familiar legislative efforts targeting sports and bathrooms, the emphasis this year is on banning gender-affirming care, the goal of 97 bills in 27 states. 
• Tennessee, which just passed a bill criminalizing drag performances in places accessible to children, passed legislation banning gender-affirming care for minors in the same session. 

United Kingdom

Church of England votes to allow priests to bless same-sex unions while continuing to reject same-sex marriage 

• Clergy members may bless the unions of same-sex couples after they marry or have a partnership recognized by civil authorities, but won’t be required to perform such blessings if they disagree with them. 
• This compromise measure included an apology for the church’s failure to welcome LGBTQ people, but also endorsed the doctrine that marriage is between one man and one woman.

South Korea 

Same-sex union gains legal recognition in landmark court decision

• The Seoul High Court ruled on February 21 that national health insurance must provide spousal coverage to a same-sex common law couple. in a decision that lawyers and advocates said marked the first legal recognition of same-sex union in South Korea. 
• The plaintiff filed a suit against the National Health Insurance Service in 2021 after being denied spousal benefits. A lower court had ruled in favour of the insurer on the grounds that a same-sex union could not be considered a common law marriage under the current law. 
• The National Health Insurance Service said it would lodge an appeal with the Supreme Court – the highest court hearing litigations.
• According to the Guardian, LGBTQ advocates said the decision was a significant step in advancing marriage equality in South Korea, but that there was much work left to be done. 

Other International News 

Criminalization of LGBTQ people denounced by Pope, the Archbishop of Canterbury, and the Moderator of the Church of Scotland

• Pope Francis denounced the criminalization of homosexuality and said that people with “homosexual tendencies” are children of God and should be welcomed by their churches. His comments were praised by the Archbishop of Canterbury and the Moderator of the Church of Scotland. 
• The Moderator of the Church of Scotland referred to the Bible, saying: “There is nowhere in the four Gospels that I see anything other than Jesus expressing love to whoever he meets, and as Christians that is the only expression that we can give to any human being in any circumstance”. 
• During a press conference, Pope Francis repeated his view that the Catholic Church cannot permit sacramental marriage of same-sex couples and that same-sex sexual behaviour is sinful.