A day after this publication went off to the printers last month, the historic decision by the House of Commons to pass Bill C-38, The Civil Marriage Act, took place by a vote of 158 to 133.

Despite equal marriage now being law in Canada, the “war” is far from over for the GLBTQ communities in this country. We have only won a battle.

After all the acrimony, all the debate and the warnings of impending doom, all the committee meetings, media coverage, arguments in coffee shops and around dinner tables across Canada, Parliament chose to acknowledge a simple fact: human beings meet, fall in love, and want to form committed relationships and that it is inherently unfair and unconstitutional to have one group benefit from legal definitions and protections of that relationship while another group is excluded.

It is indeed a historic decision -- in some ways perhaps ‘the’ most historic decision made in Canada in our 138 years as a nation (not 148 years as I wrote in a previous column… ‘rithmetic weren’t never my strong point…).

Same-sex marriage has, for better or worse, taken up the lion’s share of the work various activists have engaged in over the last two to three years. It is now time to turn our attention toward other inequalities and needs within our community.

In recent years, the trans-identified community has become increasingly vocal and organized, although it remains fractured. Apart from the Northwest Territories, no jurisdiction in Canada protects on the basis of gender identity or expression. The Canadian Human Rights Act, a cornerstone of Canadian human rights law, fails to recognize gender identity and expression as a right. Health care coverage of genital reassignment surgery (GRS, also known as SRS, or sex reassignment surgery) is still largely unavailable except, interestingly enough, in good ol’ “redneck” Alberta.

Since terminology is important, it is likewise important to understand what is meant by ‘gender identity’ and ‘gender expression’. Admittedly, it is a complex and widely misunderstood area, even within the GLBTTTQ communities.

Gender identity refers to the inner sense each of us have around whether we are male or female. This appears to be inherent and sometimes has little to do with the genitalia a particular body might possess. I “know” I am male, not because I have a penis and testicles – if those had been lost in some horrible accident as a toddler or baby, I believe I’d still “know” I was a male. In short, I am male not because I have a cock and balls but, rather, I have a cock and balls because I am male. That is my gender identity.

Gender expression is the socio-cultural manifestation of one’s gender identity. It is the external expression of maleness or femaleness. A transsexual woman (male-to-female or MtF) starts cultivating a feminine persona to match her emerging femaleness (as opposed to ‘emerging femininity’…femaleness and femininity, while often linked, are two distinct issues). As she begins her transition, she lives her life as a woman and appears to the world as a woman. A similar process occurs for those who are FtM, only in reverse.

While most people understand ‘gender identity’, most have some difficulty with ‘gender expression’ when it doesn’t match what they perceive. An example is the guy you’ve shared an office with for years who ‘suddenly’ starts ‘wanting to wear drag’ to work.

The individual is, of course, not in drag or doing it because of a transvestite fetishism. The person is transsexual and in the process of transitioning. Transsexuals are required, prior to their surgeries, to live their lives as the gender they are about to become so that the social and community transition is as smooth as possible. It really makes little sense to suddenly go from being Sam, have the surgeries, and the next day be expected to successfully live one’s life as Sandra…one needs time to adjust and ‘grow into’ the new being - to say nothing of those involved in one’s life.

Protections around gender expression would help ensure that ‘Sandra’ can’t be fired for expressing who she is or be forced to continue presenting as ‘Sam’. If gender identity was protected and gender expression was not, then we could easily fall into a rather odd situation whereby ‘Sandra’ had protection around her gender status (transsexual) but could not live her life as a woman because gender expression is not protected; the two go hand-in-hand.

Another emerging area of consideration is sexual freedoms. These were a basic tenet of the early Gay Liberation movement that, as homosexuals and bisexuals, we fought for our right to be who we were and to express that. We fought against the criminalization of homosexual acts and, in Canada at least, won. However, vestiges of the old regime still exist. Various ‘sex laws’ are still on the books that target homosexuals, and more specifically gay and bisexual men, and other men who have sex with men.

This is a familiar issue in Calgary, as the community here experienced the first raid against a gay bathhouse in over twenty-three years when Goliath’s Sauna-tel was raided in December 2002. Criminal charges of ‘indecency’ were laid along with charges of operating a ‘common bawdyhouse’ and charges against 13 patrons for being ‘found-ins’. The Crown eventually stayed those charges against the owner, management and staff in February 2005 and the charges against the one individual who continued to fight his charges a couple of months later.

But there are other Criminal Code statutes seen by many as discriminatory. For instance, the age of consent laws, while an emotional and ethical minefield, discriminate against gay male youth.

The legal age of consent in Canada is 14 years of age for all acts except anal intercourse, which is 18 years of age. Tiffany and her boyfriend can fuck like bunnies from age 14 on, assuming the boyfriend is not significantly older than she and in a position of authority over her. Jason and his boyfriend can’t…they have to be 18.

While there are valid, or at least understandable, arguments for and against raising the age of consent – and the Board of Egale had some very emotional discussions on that very issue – whatever the age of consent ends up being in Canada, it needs to be the same for both heterosexual and homosexual people. To effectively enshrine different ages of consent because of moral concerns around anal sex is discriminatory and, while it is often couched in terms of health and sexual safety, counterproductive.

If it is illegal for youth of a particular age to have anal sex (whether its two gay teens or two heterosexual teens) and following from that it is therefore illegal to ‘counsel’ them to engage in it, then we get into a situation where youth, especially gay youth, are denied crucial information upon which to base informed consent.

If we can’t talk about anal sex with a queer youth, he is not going to know anything about it except what he might happen to glean from porn media, and he’s not going to know how to protect himself or his partners. Sexually active queer youth are going to fuck. We know that. Just as sexually active straight youth are going to. Yet some would criminalize one while educating the other.

That many of those involved with law-making cringe at the whole idea of buggery/sodomy/ass-fucking, and are squeamish talking about it, does not deny the reality that for many gay men fucking ass is as an important part of their sexual expression as vaginal intercourse is to heterosexuals.

Then there are three-ways: Who hasn’t had a couple of those at one time? They can be fun, sexy, hot, and affirming. They can also land you in jail and slap a criminal record on you. While ‘only’ a summary offence, the fact a couple decides to invite a third (or fourth, or fifth) person to have sex with them should be of no concern to anyone but those involved. The State needs to stay out of the bedroom, or dungeon, backroom, or the bushes at 2am when nobody but those interested in sex are around.

Many of the sex laws currently on the books are based on moral concerns and frequently date from the Edwardian era. In most areas of Canadian jurisprudence, the system has moved from a morals-based analysis to a harm-based analysis. Does a certain act create demonstrable harm, either to another individual or to ‘society’? The legal system needs to be consistent and, as many rights organizations argue, move to the harm/lack of harm model.

Of course, conservatives will, and have, decried such a move as ‘moral relativism’ and evidence of the insinuation of ‘secular humanism’ into civic life: The Godless society is upon us and we will pay the price of an angry God.

I think God is a bit more intelligent than that, and likely has a broader grasp of rights, human dignity, and free will. God would certainly have a better idea than your average evangelical fundamentalist throwing conniption fits about the moral decay of Canadian society while trying to impose his or her brand of religion and morality on the rest of us. We live in a democracy, not a theocracy. If what I do brings no harm to others, then room needs to be made for that.

Will those we stood beside in the fight for equal marriage now stand beside us in our fight for trans-identified rights and sexual freedom?


Stephen Lock is the Regional Director for Egale Canada and the Calgary Representative for The Canadians For Equal Marriage Coalition. He is also the producer and host of a semi-monthly glbt radio show, Speak Sebastian, airing at 9pm on the 1st and 3rd Wednesday of the month on CJSW FM 90.9.

We are still looking for contributions to the Goliath’s Defence Fund. Donations can be made by cheque or money order, payable to “Stephen Lock (trustee).” In the memo section write “to be held in trust for the Goliath’s Defence Fund” and mail to: The Goliath’s Defence Fund, c/o The Calgary Eagle, 424-a 8th Ave SE, Calgary AB T2G 0L7. All proceeds go to defray the legal costs of the man charged as a found-in.