Gay Liberation

28 August 1971

In a CROP poll of Canadians taken in 2017, 74 per cent of respondents were in favour of same-sex marriage, up from 41 per cent twenty years earlier. In its analysis of the results, CROP said “we are witnessing a social phenomenon… of substance – a unique, historical process of social change.” What’s more, the polling company postulated that since younger demographic groups had the highest level of acceptance of same-sex marriage, the “legitimacy of same-sex marriage and consequently, homosexuality will grow” as the weight of these demographic groups increases over time.  Four years earlier, the Washington-based Pew Research Center, found that 80 per cent of Canadians agreed with the statement “Homosexuality should be accepted by society.”  (This compared with roughly 75 per cent or higher in Western Europe countries and Australia, 60 per cent in the United States, but less than 10 per cent in much of Africa and the Middle East.)

Fifty years ago, Canadians were far less tolerant. Up until the late 1960s, sexual relations between men were illegal, punishable by severe penalties. In 1967, Everett Kippert of the North-West Territories was given an indefinite prison sentence as a “dangerous offender” for simply being a homosexual who was unwilling to remain celibate.  His sentence was sustained following a Supreme Court challenge. (He was released in July 1971.) In 1968, only 42 per cent of Canadians agreed in a Gallup poll that homosexual behaviour between two consenting adults aged 21 or older should not be a criminal act. This was just one percentage point more than the 41 per cent of respondents who considered such behaviour as being criminal.

Things slowly changed. In December 1967, then-Justice Minister Pierre Trudeau famously said that the “state had no place in the bedrooms of the nation.” Two years later, the Canadian government, now led by Trudeau, passed Bill C-150, a massive omnibus bill that radically changed the Criminal Code of Canada. The bill touched upon many things, including abortion, contraception, gun control, lotteries, and homosexuality. Sexual relations between two consenting men 21 years of age and older were henceforth legal. Given prevailing public opinion, the change in law was highly controversial. Opposition to legalizing male homosexuality was fierce, especially from socially conservative groups, such as the Roman Catholic Church. Oddly, there had never been a law prohibiting sexual relations between women. There are apocryphal explanations for this omission. One story goes that when introducing legislation against homosexuality in Britain during the nineteenth century, government leaders were unwilling to explain what a lesbian was to Queen Victoria. Consequently, when British laws were introduced into Canada, the same lacuna appeared in Canadian legislation.

While the change in legislation made homosexuality legal, there was a huge panoply of laws, regulations and, of course, public opinion that remained unaffected. Most people, even those sympathetic to homosexuals, viewed homosexuality as a mental disorder. (It wasn’t until 1987 that homosexuality was dropped from the Diagnostic Statistical Manuel used by psychologists and psychiatrists to diagnose mental conditions.) Homosexuals were not protected by Canada’s Bill of Human Rights that had been passed by the Conservative government of John G. Diefenbaker in 1960, or subsequently by the federal Human Rights Act of 1977, or by Canada’s Charter of Rights and Freedoms that came into effect in 1982. Nor were there any changes to provincial laws.  Homosexuals continued to be the subjected to discrimination and abuse, or worse.

Gay Lib Canadian museum of Human rights

The Gay Day Parade on Parliament Hill, 28 August 1971, Canadian Museum for Human Rights

Activists, mostly young university students, began to lobby and protest for change. On 28 August 1971, a wet Saturday afternoon, a small group of men and women numbering anywhere from 80 to 200, accounts vary, marched on Parliament Hill in the first “gay liberation” protest in Canada. The represented a dozen or so mostly university homophile organizations from Guelph University, the University of Western Ontario, the University of Toronto, York University and Waterloo University. Also represented were the Community Homophile Association of Toronto, le Front du Liberation Homosexual of Montreal, the Gay Alliance Towards Equality of Vancouver, the Vancouver Gay Activists Association, the Vancouver Gay Liberation Front, the Gay Sisters, also of Vancouver, and the Toronto Gay Action. Simultaneously, another much smaller group of roughly twenty gay activists demonstrated at Robson Square in Vancouver.

On Parliament Hill, the activists “presented” a petition to the federal government signed by Brian Waite and Cheri Denovo on behalf of the August 28th Gay Day Committee. (See CBC archival footage of The Gay Day Parade, 28 August 1971.) In truth, there was few witnesses to the event beyond the press and a lone policeman standing in the pouring rain. The petition, which was read out loud, was researched and written in large part by Herb Spiers, an American living in Toronto. Spiers was a founding member of Toronto Gay Action and a member of the Body Politic Collective. Reportedly, he had wanted to be in Ottawa to read out part of the petition but a car accident prevented him from making it to the Capital. The petition titled “We Demand” listed ten demands for ending state-sponsored discrimination against homosexuals.

In the petition’s introduction, it was noted that although the law had changed regarding homosexuality, it did not put homosexuals on an equal footing as heterosexuals. The law did nothing “to alleviate oppression of homosexuals” and that homosexual men and women were still subject to discrimination, police harassment, exploitation and pressure to conform sexually. Moreover, the petition argued that society’s prejudices against homosexuals were due “in no small way” to the practices of the federal government. The petition set out a way for the government to redress the grievances of the homosexual community.

The first three demands were aimed at putting homosexual and heterosexual acts on an equal footing in Canada’s Criminal Code. This included the removal of nebulous terms, such “gross indecency” and “indecent act,” from the Criminal Code and their replacement with a list of clearly defined offences. It also called for penalties for illegal sexual conduct to be equalized for both homosexual and heterosexual acts. In addition, the petition demanded the removal of “gross indecency” and “buggery” as grounds for calling an individual a “dangerous sexual offender,” the section of the Criminal Code under which Everett Kippert had been indefinitely incarcerated. It also sought a uniform age of consent, though something lower than the 21 years of age set for homosexual acts which was deemed as being unrealistically high. The age of consent for heterosexual sex was then 14 years of age. (It was raised to 16 for both heterosexual and homosexual sex in 2008 with a close-in-age exception.)

The fourth demand sought amendments to Canada’s Immigration Act to eliminate references to homosexuality or “homosexualism.” At that time, homosexuals were prohibited from becoming landed immigrants. Homosexuality was even grounds to deny a person entry into Canada as a tourist.

The fifth demand focused on the practices of the federal government which denied equality of opportunity and promotion to homosexuals, especially into the upper ranks of the civil service. The government claimed that homosexuals were at risk to blackmail, and hence were security risks. Homosexuals were in a classic “Catch-22” position. Even though they might be more willing to reveal their sexuality given changing social mores, they couldn’t since their careers would be jeopardized. And since they couldn’t reveal their sexuality because their careers would be compromised, they were deemed a security risk.

The sixth demand focused on amendments to Canada’s Divorce Act which equated homosexual acts to illegal acts. The writers of the petition favoured no fault divorce as had been recently legislated in England. They also wanted homosexuality not to be a bar to child custody in divorce cases.

The seventh demand was for the right of homosexuals to serve in Canada’s armed forces.  As homosexuality between consenting adults was no longer an illegal act under the Criminal Code, a ban on homosexuals serving in the army, navy or air force under the Queen’s Regulations was anomalous and outdated.

The eighth demand was an end to the policy of the RCMP of trying to identify homosexuals anywhere in the government. It also demanded the destruction of all records pertaining to past investigations.

The ninth demand focused on the extension of legal rights to homosexual. At that time, homosexuals could not adopt children, were not eligible for public housing, and could be discriminated in employment, in renting apartments, and in other areas. They were also regularly harassed by police.

Finally, the tenth demand asked for public officials including the police the use their positions to help change society’s negative attitudes towards homosexuals.

These demands were initially ignored. Few paid attention to what most saw as a bunch of social misfits, or worse. Here in Ottawa, homosexual civil servants continued to work in fear of losing their jobs. It is estimated that between four hundred and eight hundred federal civil servants were fired owing to their sexuality. Still, the capital had long hosted a thriving gay community. A key meeting spot for decades was the Lord Elgin Hotel, sometimes known as the “Lord Organ” to its denizens. There, gays had their choice of two taverns to hang out and meet people—Pick’s Place in the basement, and the more sophisticated Library on the first floor. However, during the late 1970s, hotel management, tired of the Lord Elgin being known as a gay hangout, began to discourage gay men from coming. In 1981, Pick’s Place closed at 3pm, and only opened in the evening for special events. Consequently, its gay patrons decamped to other locales, in particular 166B, Ottawa’s first official gay bar, situated around the corner from the Lord Elgin. But Ottawa gays continued to be harassed. In 1989, Alain Brosseau, a waiter at the Chatêau Laurier Hotel was mugged in Major’s Hill Park while walking home at night by thugs who incorrectly assumed he was a homosexual; the Park was a known gay pick-up area. Robbed and beaten, Brosseau was thrown to his death from the Alexandra Bridge. His assailant was given a life sentence.

On the legal front, nothing materially changed for Canada’s gay citizens until 1978 when homosexuals were finally removed from the group of inadmissible persons under the Immigration Act. In 1980, nine years after that first “gay liberation” demonstration on Parliament Hill, a bill to prohibit discrimination on the basis of sexual orientation came to a vote in the House of Commons. It failed. In 1985, the offence of “gross indecency” was finally repealed. Seven years later, Ontario’s Court of Appeal ruled that the failure of the Human Rights Act to protect homosexuals was discriminatory. This prompted the federal government to promise to amend the law though it took several years owing to elections and a change in the party in power. In 1992, the federal government lifted the prohibition of gays serving in the armed forces. In 1995, the Supreme Court ruled that same-sex couples were protected, and an Ontario court ruled in favour of same-sex couples adopting children. The following year, the federal government finally added sexual orientation to the federal Human Rights Act.

In 1999, the Supreme Court went further, ruling that same-sex partners had the same rights and responsibilities as common law heterosexual couples, including access to social programs. Parliament updated the legislation the following year. Sixty-eight federal laws covering a wide range of subject from pension rights, and income tax to the Criminal Code of Canada were amended. In 2002, the Ontario Superior Court ruled that laws the prohibited same-sex marriages were discriminatory, leading Ontario to become the first province to permit “gay” marriage in 2003. British Columbia followed a few months later. In 2004, Quebec’s Court of Appeal also ruled in favour of same-sex marriages. In 2005, the federal Bill C-38 was passed, according same-sex couples the right to marry across Canada. This made Canada the third country in the world to sanction gay marriage, after the Netherlands in 2000, and Belgium in 2003.

While much has changed over the past fifty years, gay Canadians still face hardships. Although mostly accepted by friends and family, a recent survey of the LGBT (lesbian, gay, bisexual and transgender) community, 75 per cent reported that they had been bullied sometime in the lives. The federal government is currently trying to bring legislation into compliance with court rulings that have rendered a number of laws (so-called ‘zombie’ laws) unconstitutional. Among other things, Bill C-39 would repeal the prohibition against anal sex (Section 159) which bears a penalty of up to ten years in prison. Although the Supreme Court has not ruled on the constitutionality of this section of the Criminal Code, courts in five provinces and the Federal Court of Canada have found that it violates Canadians’ Charter rights.

Sources:

Bank Street Business Improvement Association, 2018. 166-B-The B-La Réception,  The village legacy project, http://www.villagelegacy.ca/items/show/14.

————————, 2018. Ottawa LGBT History: ‘We Demand, The village legacy project, http://www.villagelegacy.ca/items/show/8?tour=1&index=43.

————————-, 2018, Video: ‘Lord Organ’ and the Persecution of Queers, The village legacy project, http://www.villagelegacy.ca/items/show/51.

Body Politic (The), 1971. “We Demand,” Volume 1, November-December, https://ia800708.us.archive.org/30/items/bodypolitic01toro/bodypolitic01toro.pdf.

CBA, 2017. CBA groups urge repeal of Criminal Code section 159 at ‘earliest opportunity,’” 6 April, http://nationalmagazine.ca/Blog/April-2017/CBA-groups-urge-repeal-of-Criminal-Code-section-15.aspx.

CBC, 2012. TIMELINE-Same-sex rights in Canada, 25 May, http://www.cbc.ca/news/canada/timeline-same-sex-rights-in-canada-1.1147516.

————, 2017, For Canada’s LGBT community, acceptance is still a work in progress-survey says,” 9 August, http://www.cbc.ca/news/canada/montreal/canada-lgbt-community-survey-1.4240134.

CBC Digital Archives. 2018. The First Gay March,” http://www.cbc.ca/archives/entry/the-first-gay-march.

Canada, Government of, 1985. “Criminal Code (R.M.C., 1985, c-46), Anal Intercourse, Section 159,) Justice Law Website, http://laws-lois.justice.gc.ca/eng/acts/C-46/section-159.html.

Canada, Government of, Department of Justice, 2017. “Charter Statement –Bill C-39, An Act to amend the Criminal Code (unconstitutional provisions) and to make consequential amendments to other Acts, 6 June, http://nationalmagazine.ca/Blog/April-2017/CBA-groups-urge-repeal-of-Criminal-Code-section-15.aspx.

Canadian Museum for Human Rights, 2015. “The ‘We Demand’ protest held in Ottawa in 1971,” https://humanrights.ca/we-item/we-demand-protest-held-ottawa-1971.

Georgia Straight (The), 2011. ““We Demand”: sex and activist history in Canada gets spotlighted,” 25 August, https://www.straight.com/article-441761/vancouver/we-demand-history-sex-and-activism-canada-gets-examined.

Globe and Mail, (The), 1971. “Equality urged for homosexuals,” 30 August.

HuffPost, 2013. “Canada Accepts Homosexuality, But Global Divide Exists,” 6 October, https://www.huffingtonpost.ca/2013/06/10/canada-homosexuality_n_3412593.html.

Marchand, Blaine, 2013. “View from the Honey Dew,” Xtra, 31 December, https://www.dailyxtra.com/view-from-the-honey-dew-56366.

Newsmax, 2015. First Countries That Legalized Same-Sex Marriage,” https://www.newsmax.com/fastfeatures/same-sex-marriage-legalized-countries/2015/06/15/id/650672/.

Ottawa Journal (The), 1971. “Gay protest marks a first for the hill,” 30 August.

Tatalovich, Raymond, 2003, Morality, Policy and Political Unaccountability: Capital Punishment, Abortion, and Gay Rights in Canada, United Kingdom, France, and Germany, Loyola University, Chicago, Paper presented at the Annual Meeting of the Canadian Political Science Association, Halifax, May 30-June1, 2003, https://www.cpsa-acsp.ca/paper-2003/tatalovich.pdf.

The Inquiry, 2018. “The Ever-Changing Criminal Code of Canada,” https://theinquiry.ca/the-inquiry/order-in-council-the-mandate/the-ever-evolving-criminal-code-of-canada/.

We Demand, 2011. Author of 1971 We Demand Statement Passes Away, http://ocs.sfu.ca/history/index.php/wedemand/2011/announcement/view/3.

Advertisements

Eastview Birth Control Trial

17 March 1937

Birth control is an accepted part of modern life by all except the most religiously conservative. Competing brands of condoms in garish packages jostle for attention on the druggist’s shelves, while contraceptive pills, easily obtained by prescription, are covered by health insurance plans. It might therefore come as a surprise to learn that as recent as 1969 contraceptives were illegal in Canada. Even the dissemination of basic information about birth control was prohibited unless it could be shown to be “in the public good.” One of the big steps along the long road to repealing the law took place in Ottawa in the 1930s. However, the landmark legal decision that set change in motion had little to do with a woman’s right to control her body. Far more important were efforts to control the size of Canada’s poorer classes.

On 14 September 1936, Dorothea Palmer was arrested after visiting a welfare mother in the community of Eastview, now called Vanier. A week before her arrest, Palmer, who had received some training as a nurse in her native Britain before immigrating to Canada in 1928, had taken a part-time job in Ottawa with the Parents’ Information Bureau (PIB). The PIB, started in 1930 by Alvin Ratz Kaufman, a wealthy, Kitchener-based industrialist and philanthropist, provided poor families with pamphlets about birth control, as well as sample contraceptives.  PIB workers would make house calls on poor mothers, typically by referral of a doctor or friend. After a mother filled out an application form, which asked a slew of questions, including her race, the number of pregnancies she had had, her husband’s occupation and salary, she could acquire contraceptives through mail order from the PIB for a small fee, or for free, if she were destitute.

Dorothea Palmer

Dorothea Palmer, date unknown

Palmer was arrested by Constable Emil Martel and brought to the police station where she was questioned by Chief Richard Mannion. Believing she was not going to be charged, Palmer freely told the police what she was doing in Eastview, adding that “A woman should be master of her own body.” Mannion called the Crown Attorney who charged her with three counts under Section 207(c) of the 1892 Criminal Code for selling, advertising, and disposing of contraceptives. Although Palmer figured she would get in trouble with the Catholic Church, she was surprised to have been arrested. PIB workers had been told that what they were doing was legal as their actions were covered by the “public good” clause of the Act. However, the broad applicability of the clause, which was intended to protect doctors, was untested in court. Eager to set a legal precedent, Kaufman provided the $500 bail for Palmer’s release, and paid $25,000 for a top-rate legal team for her defence.

The trial, one of the longest in Canadian history, lasted six months. Witnesses, included social workers, clergy, and doctors, as well as twenty-one poor, francophone women visited by Palmer in Eastview. Judge Lester Clayton quickly dismissed two charges against Palmer, those of selling and disposing of contraceptives devices, due to lack of evidence, leaving the trial focused on whether or not the distribution of pamphlets on birth control fell under the “public good” clause of the Act.

The prosecution relied on medical opinions to show that birth control was unnatural, or dangerous, and that the distribution of birth control literature by lay people was not in the public interest. One obstetrician-gynaecologist called by the Crown argued that the control of a woman’s organs was above man’s law, and that birth control would lead to a woman experiencing “pathological conditions.” Another, a professor of gynaecology at the University of Montreal, spoke against all forms of birth control other than the rhythm method. On cross examination, he admitted that his objection was religious. Some doctors, while supporting birth control for existing mothers who wanted to space future pregnancies, argued that it should be handled solely by medical professionals. However, the testimony of medical experts was undermined when they acknowledged that they actually knew little about birth control; the subject was not taught in medical school.

Palmer’s defence team focus its arguments on the supposed sociological and economic virtues of birth control rather than human rights. Although the directors, both women, of the Toronto and Hamilton birth control clinics spoke about a woman’s reproductive rights, and the welfare of mothers, as did the Eastview mothers who didn’t want more children, their testimony was overshadowed by eugenic views expressed by male witnesses.

Prior to World War II, eugenics was a respected scientific theory, based on Darwinism, that aimed to improve mankind through selective breeding for beneficial human characteristics (positive eugenics) and the discouragement of negative traits through birth control or sterilization (negative eugenics). The Eugenics Society of Canada, established in the early 1930s, lobbied for the establishment of a national policy of “race betterment” by enacting legislation to “safeguard racial progress.” Many respected progressive Canadians were eugenics supporters, including Tommy Douglas and Nellie McClung.  Both Alberta and British Columbia enacted legislation permitting the sterilization of unfit and feeble-minded individuals that wasn’t repealed until the early 1970s. Unfortunately, the terms “unfit,” and “feeble-minded” were open for interpretation. For many, racial improvement meant advancing the white, Anglo-Saxon, protestant “race” at the expense of others. Eugenics supporters also argued that the upper and middle classes were being outbred by the poor and mentally ill, leading to genetic, social, and economic disaster. To correct the birth differential, birth control should be made available to the masses. The reputation of eugenics crashed during World War II when Nazi Germany used the theory as justification for its racial policies that led to the death of millions in its concentration camps.

A number of prominent Canadian eugenicists testified at Palmer’ trial, including Alvin Kaufman, Treasurer and founding member of the Eugenics Society of Canada, Dr. William Hutton, the Society’s president as well as the Brantford Medical Doctor of Health, and the Reverend Dr. C.E. Silox, the Secretary General of the Social Service Council of Canada. Both Kaufman and Silox testified that since poor, unemployed workers were having large families, the only alternative to birth control was revolution or communism. Silox raised the Malthusian spectre of uncontrolled population growth requiring state intervention, or the “invention of new deadly diseases, more terrible famines, and bigger and better wars” to stop it. If that wasn’t controversial enough, Silox argued that French Canadians were deliberately outbreeding English Canadians while driving down their standard of living. By giving poor francophone families access to birth control, he claimed that Anglo-French tensions would be eliminated, and English dominance maintained. Le Droit, Ottawa’s French language newspaper, angrily retorted that the trial was all about killing French Canadians in the womb.

Dr. William Hutton presented dubious statistics purporting to show that the average intelligence of Canadians was declining due to a higher fertility rate of the less intelligent, a view supported by a University of Toronto psychiatrist who argued that Canada faced a biological crisis as a consequence. Further testimony by a Toronto economist underscored the burden to society of supporting the unemployed of Eastview, noting that the community’s unemployment rate was more than double the national average, and that births in the town outnumbered deaths by more than 150 per year. Similarly, the Secretary of the Toronto District Labour Council argued that birth control should be used to “govern the level of the nation’s population” until surplus workers were absorbed, or the economic system changed.

On 17 March 1937, Judge Clayton, swayed by the economic and social arguments made by the defence, ruled that Dorothea Palmer’s actions were indeed in the public interest. In his summing up, there was no mention of women’s rights. With the subsequent appeal by the Crown dismissed, Clayton’s ruling opened the door a crack for birth control in Canada.

Sadly, for all her courage, Palmer received little support from her husband, relatives and Church who disapproved of her stand. During her trial, a stranger, passing on the street, slapped her face. Palmer received obscene phone calls at all hours, and was sexually assaulted by a man who told her “I’ll show you what it’s like without any birth control.” Fortunately, a knee in the groin and a punch in the face stopped her assailant.  After the trial, she quit the PIB, saying her work was done, and faded into obscurity. Palmer, a pioneer for women’s rights, died in 1992.

Sources:

Annau, Catherine, 1994. “Eager Eugenicists: A Reprisal of the Birth Control Society of Hamilton,” Social History, Volume XXVII, Number 53, p. 111-133, http://pi.library.yorku.ca/ojs/index.php/hssh/article/viewFile/16541/15400.

Bonikowsky, Laura, 2011, “It’s About Control: Dorothea Palmer and Contraception,” Historica Canada Blog, 13 September, http://blog.thecanadianencyclopedia.com/blog/posts/it%E2%80%99s-about-control-dorothea-palmer-and-contraception/.

Dodd, Dianne, 1983, “The Canadian Birth Control Movement on Trial, 1936-37,” Social History, Volume XVI, Number 32, p. 411-28, http://pi.library.yorku.ca/ojs/index.php/hssh/article/viewFile/38282/34685.

Jasmin, Olivier, 2012. Eugenics in Canada, http://rimstead-cours.espaceweb.usherbrooke.ca/IntercultH2012/eugenics.html.

Martel, Marcel, 2014, Canada The Good, A Short History of Vice since 1500, Wilfrid Laurier University Press, Waterloo.

National Post, 2012. “Canadians airbrush the truth Tommy Douglas’s enthusiasm for eugenics: MD,” 14 March.

Revie, Linda, 2006. “More Than Just Boots! The Eugenic and Commercial Concerns behind A. R. Kaufman’s Birth Controlling Activities,” Canadian Bulletin of Mental Health, Volume 23:1, p. 119-143, file:///C:/Users/User/Downloads/1269-1271-1-PB.pdf.

The Globe, 1936. “Palmer acquitted on one birth control count,” 21 October.

—————, 1936. “Public Good, Is Defense Point in Palmer Case,” 2 November.

—————, 1936. “Birth Control or Red Regime, Pastor States,” 3 November.

—————, 1936. “Rabbi, Pastors, Doctor Defend Birth Control,” 6 November.

—————, 1937. “Deny Charge of Obscenity,” 2 February.

The Globe and Mail, 1937. “Birth Control Case Dismissed,” 18 March.

———————–, 1978. “Did Dirty Work for men at trial, pioneer of birth control says,” 30 November.

Image: http://www.intlawgrrls.com/2010/09/on-september-14.html.