Across time and culture, gender and sexual diversity have been important features of many societies and cultures. History, anthropology, natural science and legal theory remind us that sex, sexual orientation, gender identity and gender expression are not limited to oppositional binaries. The purpose of the first two days of this seminar was to explore how family law, criminal law, civil law, and the administration of justice have developed – and may need to develop further – to reflect sex, gender identity and expression, sexual orientation, and the lives of people beyond the binary. The third day of the program was a criminal law seminar focussing on current important developments in criminal law.
The objectives of this seminar were to improve the participants’ awareness of key developments in civil, criminal and family law matters before the Court and to better develop their understanding of the social context relating to issues of gender identity, gender expression and sexual orientation.
History of the Law’s Regulation of Sex, Sexual Orientation, Gender Identity and Gender Expression
This session provided a historical overview of the law’s regulation of sex, sexual orientation, gender identity and gender expression. Historically, there has been a tendency to medicalize or draw presumptions of abnormality about certain classes of persons, without evidence and based on religious dogma. This presentation debunked the myth that there has been an “unbroken and continuous rejection of same-sex relationships throughout history” or a consistent moral response, as well as the myth that these rights have been achieved and are now secure.
Quick Overview of Key Terminology and Concepts
In this session, the difference between biological sex, gender identity, gender expression, sexual orientation was explained and the LGBTQ and other acronyms (LBGTQA2S+) unpacked. The session also provided a quick overview of key terminology, explaining concepts like intersex, transgender, cisgender and two-spirit.
Trinity Western University: Current and Emerging Rights Clashes
The Trinity Western University case is the most current high-profile case addressing the collision between freedom of religion and the right to be free from discrimination. Speakers addressed the TWU case, including the Supreme Court of Canada decision, in addition to other contexts in which these kinds of issues and conflicts arise and are currently seen by SCJO judges.
Transforming Justice: Trans Legal Needs Assessment Ontario
The key findings from the Transforming Justice: Trans Legal Needs Assessment project, a province-wide study of the access to justice needs of trans people in Ontario, was reviewed and explained, with particular emphasis on issues that can arise in Court.
The Law’s Response to Substantive Issues Involving LGBTQ Parents
This interactive session examines law’s response to substantive issues involving LGBTQ parents (surrogacy agreements; assisted reproduction, with known and anonymous donors; alternative parenting structures in multiple-parent families; possible custody issues) and secondarily trans or gender-questioning children and youth. Emphasis on the Children’s Law Reform Act as amended by the All Families Are Equal Act, 2016.
LGBTQ Children and Teens in Court: Where Do They Come from and What Do We Need to Know to Help Them?
With a focus on practical issues and tips for judges, this session focussed on the context and realities of LGBTQ youth and will consider what resources are available that can create better outcomes.
LGBTQ Families and Parents: The Decision to Parent and Ramifications Upon the Break-Down of Relationships
Presenters touched on the myriad legal issues that may arise when LGBTQ individuals decide to parent and establish a family and how these decisions inform positions they take when there is a break-down of the parental relationships.
Criminal Law and the LGBTQ Community: Current and Emerging Issues
This session moved through the various stages of the criminal process, touching on unreasonable search and seizure (strip search procedures for trans people), sentencing under Bill C-16, and trans corrections policies at the federal and provincial levels.
Keynote Address: Taking an International Lens – The Rainbow Railroad
This session discussed the state-sponsored violence facing LGBTQ people around the world, and the measures taken by individuals in countries where LGBTQ individuals are open targets of violence.
Overview of Bill C-75
Bill C-75, recently introduced in Parliament, contains a number of Criminal Code amendments aimed at getting criminal cases to and through the trial more quickly. Some of these changes could significantly impact the nature of the criminal cases that find their way to the Superior Court for trial, and the manner in which those trials are conducted. This panel highlighted the proposed legislative changes and their potential impact on the Court’s work.
Non-Disclosure of HIV Status
This session reviewed the issue of non-disclosure of HIV from Cuerrier to Mabior to C.B., 2017 ONCJ 545. Experienced counsel provided an overview of the science of HIV transmission, including new treatments and viral loads, and discussed unresolved issues such as how the law will respond to advances in the science and treatment of HIV, the role of expert witnesses, and the possibility of prosecutions based on psychological harm instead of risk of transmission, from both Crown and defence perspectives.
Review of Top Recent Criminal Law Cases
This session reviewed of some of the most significant Supreme Court and appellate level criminal law decisions of the past year, from Crown and defence perspectives.