April 11, 2023

Not every legal development or decision with relevance for 2SLBGTQI people 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.

In Canada this month, there have been some exciting legal developments resulting from sustained advocacy by 2SLGBTQI communities, including the expansion of the federal expungement scheme for historically unjust convictions rooted in homophobia, transphobia, and misogyny. Meanwhile, in the US, the crisis of anti-2SLGBTQI legislation continues to deepen. We are also concerned by the erosion of same-sex parental rights in Italy and horrified by the new Anti-Homosexuality Bill in Uganda.

Case Law

Simone v. Law Society of Ontario, Law Society Tribunal Hearing Division 

Heard October 24th, 2022; decision dated February 21st, 2023. 

  • The Law Society of Ontario is responsible for licensing paralegals in Ontario. This license is necessary to be allowed to practice the profession. One requirement for licensing is that the applicant is “of good character.”  
  • The applicant’s “good character” was the subject of investigation for two reasons. One was related to misconduct in her previous profession. The other related to social media posts made in 2020. In those posts, the applicant expressed opposition to anti-COVID-19 measures in very extreme terms; made racist comments regarding the Black Lives Matter protests; and made homophobic references to 2SLBGTQI people and to Pride. 
  • Overall, the Tribunal found that the applicant was of good character because she expressed remorse and had not engaged in similar behaviour in several years. As a result, the Law Society granted her license.  
  • Though this is one minor case, the issue it raises is increasingly relevant: How should the right to freedom of opinion and expression be balanced with regulated professionals’ obligation to uphold human rights? The legal system will have to continue to engage with that question.
  • The concurring opinion found that the social media posts should not, as in the majority, be considered misconduct to be forgiven, but should not be considered professional misconduct at all.  

Canadian News 

The Government of Canada expands the list of historically unjust convictions eligible for expungement: 

  • On March 7, 2023, the Government of Canada announced that the list of convictions that are eligible for expungement under the Expungement of Historically Unjust Convictions Act (2018) would be expanded to include more convictions under historical laws rooted in homophobia, transphobia, and misogyny.  
  • When a conviction is expunged, the record of the conviction is destroyed, and the person is deemed never to have been convicted. This also applies to people who are deceased if a representative applies for expungement on their behalf. 
  • The Schedule to the Expungement Act was amended to include convictions under the bawdy-house and indecent acts provisions of the Criminal Code, which were two of the primary avenues for the legal persecution of 2SLGBTQI people.  
  • It also now includes convictions for “indecency” including exhibiting a “disgusting object”, “exhibiting an indecent exhibition in a public place”, and the offences regarding “immoral, indecent or obscene” entertainment. 
  • Finally, the Schedule was expanded to include convictions of medical professionals who provided abortion services before the legalization of abortion, as well as of people who terminated their own pregnancies. 

Calgary city council passes a bylaw to protect 2SLGBTQI community events from hate-fuelled protests: 

  • Calgary’s new Safe and Inclusive Access Bylaw makes it an offence to protest against an idea or action related to human rights – including sexual orientation and gender identity and expression – within 100m of public libraries and recreation facilities.  
  • The background is the disruption of 2SLGBTQI community events like all-ages drag events by transphobic and homophobic protestors.  
  • The City of Calgary says its goal is to ensure that all residents can safely enjoy public spaces and events.  

Concerns rise about the disappearance of 2SLGBTQI community spaces in Canada: 

  • In cities across Canada, historic 2SLGBTQI gathering places like bars and baths are shutting down. 
  • As we reported last month, Toronto’s 2SLGBTQI community successfully blocked the city’s plan to develop Hanlan’s Point.  
  • Meanwhile, historic bars and clubs in Calgary including The Backlot are shutting down. 
  • Reasons for these spaces shutting down include gentrification and development in downtown areas of major cities as well as threats against 2SLGBTQI establishments, according to Global News sources.  

International News 

United States 

Kentucky legislature passes a new bill restricting rights of trans youth: 

  • Members of Kentucky’s legislature, which has a Republican supermajority, overrode the Democratic governor’s veto of a bill that bans gender-affirming care for minors and allows school staff to misgender trans youth. 
  • The American Civil Liberties Union (ACLU) has called the bill “one of the most extreme anti-transgender bills we’ve witnessed,” according to CNN. 

Florida Governor moves to prohibit the teaching of sexual orientation and gender identity across all school grades 

  • Florida’s government is proposing to expand the infamous Don’t Say Gay bill, which restricts the teaching of any concepts related to LGBTQI life, from fourth grade through to the end of high school.  Under the proposed expansion, students would never learn about sexual orientation or gender identity in schools except under narrowly defined circumstances and with parental consent. 
  • The proposal would also force schools and teachers to misgender trans, nonbinary, and gender-nonconforming students, similar to the new legislation in Kentucky (see above).  

American Library Association reports a record number of demands to censor library books and materials in 2022: 

  • According to the American Library Association (ALA), a record of 2571 titles were challenged in 2022, which means that someone attempted to have a book removed from a library’s collection.  
  • The majority of challenged books were by or about 2SLGBTQI people or people of colour.   

Students at Wellesley College vote to admit trans men and nonbinary applicants: 

  • Students at Wellesley College, a private liberal arts women’s college, approved a non-binding referendum to expand the college’s admissions policy to include trans men and nonbinary applicants.  
  • Trans and nonbinary women are already allowed to enrol.  
  • Other women’s colleges in the US have varying policies about trans and nonbinary applicants. Many allow trans women, but not trans men.  
  • The college’s administration has said that despite the referendum, there will be no change to the admissions policy. 

Italy 

Government of Italy limits the parental rights of same-sex couples: 

  • Under Prime Minister Giorgia Meloni, the far-right Italian government has ordered municipal governments to stop recording same-sex parents in city registers. 
  • Parents need to be recorded in the city register for a wide range of everyday situations, such as giving permission for medical treatments or even participating in school field trips with their children.  
  • There is no marriage equality in Italy and same-sex couples cannot access assisted reproductive technologies. Most families affected have birth certificates from other European countries that do allow both parents in same-sex couples to be recorded on their children’s birth certificates. 

India 

India’s Supreme Court set to hear same-sex marriage case in April 2023: 

  • After overturning a colonial law criminalizing same-sex sexual activity in 2018, India’s top court has appointed a five-judge bench to hear final arguments on granting legal recognition to same-sex marriages on April 18, 2023.  

Uganda 

Ugandan Parliament passes brutal Anti-Homosexuality Bill 

  • With a nearly unanimous vote, Ugandan lawmakers passed the Anti-Homosexuality Bill – whose full text remains unpublished – creating a range of new offences that carry brutal punishments. 
  • Some sources, according to the BBC, have called this bill the most far-reaching anti-LGBTQI bill in the world, with offences including merely identifying as LGBTQI.  
  • Same-sex sexual activity is already punishable by life in prison in Uganda under a colonial-era law.