Rearranging the Furniture: Toward the
Articulation of a Queer Legal Theory A
Review of Carl F Stychin, Law’s Desire:
Sexuality and the Limits of Justice
Carl F. Stychin, Law’s Desire: Sexuality and the Limits of Justice. New York:
Routledge, 1995. Pp. ix, 185 [Cloth $59.95 (U.S.); paper $16.95 (U.S.)].
Reviewed by Jo-anne Pickel”
[O]ur sexualities and the categories through which we understand
instance, “lesbian”, “gay”, “bisexual”, or “straight” –
them -for
are not part of the furniture of the universe but rather are themselves
produced by systems of regulation including the law.’
Introduction
It is difficult to ignore the increased visibility of gay men, lesbians and even bi-
sexuals in recent years, whether it be in the media, political fora, the academy, or in
different legal contexts. The recent growth in legal scholarship on law, sexuality and
sexual orientation is noteworthy as are the sustained efforts by lesbians and gay men
to seek redress for social inequalities through litigation strategies! The complex array
of political and legal interventions undertaken by gay men and lesbians over recent
years has been aimed not only at seeking redress for perceived injustices, but also at
Candidate in the BCLILL.B.Master’s of Social Work Joint-Degree Programme, McGill Univer-
sity.
McGill Law Journal 1997
Revue de droit de McGill
To be cited as: (1997) 42 McGill L.J. 483
Mode de r6fdrence : (1997) 42 R.D. McGill 483
‘L. Greene, “Introduction” (1995) 8 Can. J. Law & Jur. 3. Greene is describing a constructivist or
postmodern perspective on sexuality. He remarks that this perspective is now the controlling voice in
scholarship in this area.
2 For recent analyses of law and sexual orientation in Canada, see e.g. D.G. Casswell, Lesbians,
Gay Men and Canadian Law (Toronto: Emond Montgomery, 1996); D. Herman, Rights of Passage:
Struggles for Lesbian and Gay Legal Equality (Toronto: University of Toronto Press, 1994)
[hereinafter Rights of Passage]; R. W-mtemute, Sexual Orientation and Human Rights: The United
States Constitution, the European Convention, and the Canadian Charter (New York- Clarendon
Press, 1995); J.A. Yogis, R.R. Duplak & J.R. Trainor, Sexual Orientation and Canadian Law: An As-
sessment of the Law Affecting Lesbian and Gay Persons (Toronto: Emond Montgomery, 1996).
MCGILL LAW JOURNAL!REVUE DE DROITDE MCGILL
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asserting lesbian and gay identities, and at disrupting dominant discourses and prac-
tices relating to issues of sexuality and sexual orientation.
In tandem with this broadening and deepening of analyses that focus on sexuality
and the law, there has been an increased questioning of law itself and of the complex
ways in which law operates both in the regulation and constitution of subjects. Schol-
arship in feminist legal theory, critical race theory, critical legal studies and legal plu-
ralism is well known for its attempts to lay bare the workings of the legal process. In
addition, in recent years, a number of theorists have sought to examine law and legal-
ity through the lens of postmodemism’ Given their concern with the discursive di-
mension of social life, postmodern theorists have attempted to deconstruct universal
ideals in order to reveal their particular and contingent nature. Applied to the study of
law, postmodem theory suggests that presumed legal truths and realities are instead
constructed through the operation of discursive frameworks and practices.
Carl Stychin’s Law’s Desire: Sexuality and the Limits of Justice’ is a welcome
addition to ongoing efforts to break down rigid and reductionist thinking about iden-
tity and to scrutinize law’s complex and at times contradictory relationship to sexual
practices, identities, and representations. It is an audacious attempt to weave together
an analysis that crosses both national and disciplinary boundaries.
Significantly, Law’s Desire is not a systematic overview of legal responses to sex-
ual orientation in different countries. Instead, Stychin seeks to highlight recurring
themes in the legal treatment of sexuality, particularly gay male sexuality, through the
consideration of case studies drawn from Canada, Britain and the United States.
Heavily influenced by postmodemism and poststructuralism, Stychin generally es-
chews an approach which would seek to make universal claims about life and law.
Through his case studies, he probes the ways in which law both constrains sexual ex-
pression and constitutes sexual identities in particular contexts. Ultimately, he seeks to
explore the gaps and inconsistencies in this process, for it is these gaps, Stychin sug-
gests, which create space for discursive resistance to legal and sexual hegemonies.
Most of the chapters in Law’s Desire appeared as articles in various law journals
between 1992 and 1994. As a collection of previously published articles, there inevi-
tably is some repetition; however, the consolidation of these articles into book form
allows Stychin to sketch some of the similarities and differences between the three
countries (and legal contexts) from which he has chosen his case studies. In addition,
the publication of Laws Desire makes Stychin’s work available to a broader audience,
one that extends beyond those (relatively few) of us who have regular access to law
journals and legal databases.
Stychin’s work is persuasive, insightful and challenging. His analysis is most
compelling when it is carefully circumscribed by one of his case studies. At times,
See e.g. B. De Sousa Santos, Toward a New Common Sense: Law, Science and Politics in the
Paradigmatic Transition (New York: Routledge, 1995); C. Douzinas & R. Warrington, Postmodern
Jurisprudence: The Law of Text in the Texts of Law (New York: Routledge, 1991); MJ. Frug, Post-
modem Legal Feminism (New York: Routledge, 1992).
“(New York: Routledge, 1995) [hereinafter Law’s Desire].
1997] J. PICKEL – LAW’S DESIRE: SEXUALITYAND THE LIMITS OF JUSTICE
485
Stychin’s discursive investigation lingers too long on the gaps and inconsistencies in
legal discourse without examining how actors take advantage of these gaps to effect
social/sexual change. Given his interest in discursive struggle and resistance,
Stychin’s analysis would benefit from additional grounding in the specific experi-
ences of situated political actors. I will elaborate on this critique after canvassing
some of the key themes raised in Stychin’s work.
I. Toward a Queer Legal Theory: Key Themes in Law’s Desire
Several interrelated themes recur in Stychin’s case studies. Since I cannot hope to
map out all of these exhaustively, I will highlight a few that I found significant and
that are woven through several chapters.
The first theme is Stychin’s central claim: law desires “the ‘homosexual’ against
whom a coherent heterosexuality can be promoted through law.”‘ He argues that
“legal discourse is an important site for the constitution, consolidation and regulation
of sexuality and, in particular, the hetero-homo sexual division.”‘ Stychin affirms a
social constructionist view of identity. That is, sexuality and sexual identities, as all
other identities, are socially constructed – they are neither “natural” nor do they pre-
cede their own articulation through a web of discourses including legal discourses.”
This view ties into poststructuralist attempts to show how the rational subject of the
Enlightenment requires the creation of a devalued other against whom the former can
be constructed. Poststructuralist theorists argue that all structured dualities are con-
structs and that they can and should be deconstructed in order to reveal their fragile
and contingent nature. Deconstruction helps us notice the way in which dichotomous
thinking constitutes a powerful strategy for controlling the world by stabilizing con-
tingent hierarchies and promoting them as natural and inevitable.! Applying a post-
structuralist analysis to the legal treatment of sexuality, Stychin argues that the con-
struction of a “normal” sexuality through legal discourse requires an excluded “other”
against whom the former can be consolidated. Homosexuality provides this opposi-
tional “other” against which heterosexuality is normalized.
Stychin provides several examples of how this construction of homosexuality
functions as “other” in order to reinforce the “naturalness” of heterosexuality. In par-
ticular, he discusses attempts in both Britain and the United States to legislate against
the “promotion” of homosexuality. For example, he discusses the adoption of section
5Ibid at 1.
6 lbid at 7.
‘ Stychin draws considerably from the work of Judith Butler and Eve Kosofsky Sedgwick to put
forward a view of both gender and sexual identities as “performative”. That is, rather than being es-
sentially determined, identities come to be naturalized through the repetition of actions and discourses
(see ibid. at 140-51; J. Butler, Gender Trouble: Feminism and the Subversion of Identity (New York:
Routledge, 1990); E. Kosofsky Sedgwick, “Queer Performativity: Henry James’ The Art of the
Nover’ (1993) 1 G.L.Q.: J. Lesbian & Gay Stud. 1).
‘ For a discussion of the merits of a deconstructionist approach for feminist theory, see E. Frazer &
N. Lacey, The Politics of Community: A Feminist Critique of the Liberal-Communitarian Debate
(Toronto: University of Toronto Press, 1993).
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28 of the Local Government Ace in Britain which prevents local authorities from
promoting homosexuality and teaching in school the acceptability of homosexuality
as a “pretended” family relationship. Referring to the debates on the legislation in the
British House of Commons and House of Lords, Stychin argues that the proponents
of section 28 put forward a view of gay and lesbian sexual identities as extremely
dangerous yet also dangerously seductive.” According to this view, any positive por-
trayal of gay and lesbian sexuality risks the proliferation of gay and lesbian identities
in society.
Stychin observes that the proponents of section 28 implicitly view heterosexuality
as a fragile and tenuous identity which is under constant threat from its “other” –
homosexuality – which has the power to cross the border and corrupt the former’s
“natural” unity. Ironically, then, section 28 supporters implicitly accept a view of
sexuality as provisional and dependent on historical and social circumstances.” This
understanding of sexuality accords with the belief commonly held by contemporary
cultural and postmodern theorists that our subjectivities, rather than being stable and
unitary, are positioned or “sutured” at the intersection of a web of discourses which
circulate within societies at given points in time.’2 Meanwhile, opponents of section
28 – who include, but are not limited to, gay men and lesbians –
tend to respond to
fears over the “luring” of children into a homosexual “lifestyle” by advocating a view
of sexuality as innate, immutable, and not susceptible to promotion. In contrast,
Stychin suggests that opponents of section 28 should put forward a more fluid view of
sexuality and sexual identities, one that recognizes that these identities definitely can
be promoted (heterosexuality being the prime example in mainstream culture) and,
moreover, that homosexuality should be promoted as an alternative sexual identity.”
He suggests that rather than resorting to the language of immutability, opponents of
section 28 could instead assert a right to articulate a plurality of sexual identities
within public discourse.”
Despite governments’ attempts to use legal mechanisms to prohibit the promotion
of homosexuality, Stychin maintains that the legal constitution of identities never
achieves complete closure. Legal regulation frequently and inadvertently creates dis-
cursive spaces for the articulation of identity(ies) through the agency of the excluded
“other”. First, because a prohibition must acknowledge the existence of the prohib-
ited, it thereby brings prohibited practices and identities into the realm of public dis-
course. Second, the enactment of laws may be marked by considerable protest which
may in turn provide a point of unity and solidarity among targeted groups. Thus, ac-
9 (U.K.), 1988, c. 9.
” See Law’s Desire, supra note 4 at 43.
“Ibid.
,2 See e.g. S. Hall, “Old and New Identities: Old and New Ethnicities” in A.D. King, ed., Culture,
Globalization and the World System (London: MacMillan, 1991) 41.
” See Law’s Desire, supra note 4 at 43,48-49. Stychin, however, notes that “homosexuality” should
not simply be promoted as a matter of sexual desire but, rather, as a legitimate, desirable and fulfilling
identity. He suggests that this promotion would provide the basis for a more “integrated sense of self
and community” among gay men and lesbians.
“4 See ibid. at 49.
1997] J. PICKEL – LAW’S DESIRE: SEXUALITYAND THE LIMITS OF JUSTICE
487
cording to Stychin, while attempts to constitute and regulate identities through legal
means may be partially successful, they may also serve to facilitate discursive inter-
ventions and the articulation of alternative sexual identities.”
A second recurring theme in Laws’Desire concerns the pitfalls inherent in the le-
gal regulation of artistic and pornographic representations. Drawing upon poststruc-
turalism, postmodemism, and critical film and literary theory, Stychin argues that at-
tempts to regulate representations are often based on a misconception of the role of
cultural production and the diverse meanings of cultural texts.” Further, he suggests
that the uncontrollable nature of representations, in terms of the meanings that they
convey, can form the basis upon which marginalized groups may forge new and po-
tentially subversive political identities.”
Stychin examines the possible problems with attempting to regulate pornographic
representations in his analysis of the work of anti-pornography feminists.” He argues
that the view held by feminists such as Catharine MacKinnon and Andrea Dworkin,
and advocated in Canada by the Women’s Legal Education and Action Fund
(L.E.A.F) in R. v. Butler,” is flawed in its application to gay male pornography.” The
feminist anti-pornography position, Stychin argues, fails to take into account the way
representations are invested with different meanings depending on the audience.
Stychin suggests that the meaning of an image cannot be discerned outside the con-
text of its spectatorship. Thus, the dominance and submission depicted in most por-
nography may assume different meanings when these materials are viewed outside a
straight male context.2′ As a result, according to Stychin, the radical anti-pornography
approach fails to capture the ways in which gay male pornography, rather than rein-
forcing images of masculinity, may in fact subvert dominant understandings of mas-
culinity and male power. He suggests a new model for the regulation of pornography,
one that conceives of pornography as political speech and which focuses on the right
of marginalized groups to articulate their identities in the public sphere.’
A third theme taken up by Stychin is directly linked to the postmodern problema-
tization of identity. If identities are partial, contingent, and open to reconfiguration,
“See ibid. at 48-53.
,6See ibid. at 63-64.
7 See ibid. at 12.
‘8See ibid at 55-90.
“[1992] 1 S.C.R. 452, 89 D.L.R. (4th) 449.
20 For an elaboration of this anti-pornography feminist position, see C. MacKinnon, Only Words
(Cambridge, Mass.: Harvard University Press, 1993). This position has been the subject of heated de-
bates both within and outside feminist circles (see e.g. B. Cossman et al., Bad Attitude(s) on Trial:
Pornography, Feminism and the Butler Decision (Toronto: University of Toronto Press, 1996) at 99;
A.C. Hutchinson, “In Other Words: Putting Sex and Pornography in Context’ (1995) 8 Can. L Law &
Jur. 107).
2″ Law’s Desire, supra note 4 at 64.
22According to Stychin, this would be a liberationist conception of rights. The subject of the rights
is not the universal bearer of liberal rights, but a subject with a specific political experience and his-
tory of marginalization within dominant culture. For his discussion of this model of rights, see espe-
cially ibid at 55-75.
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how can they also serve as the basis for assertions of collective identities by particular
groups within society? On what basis do identity-based social movements assert the
coherent identity-categories arguably needed for political and legal reform? Stychin
argues that this tension between deconstruction and assertion of identity is irresolv-
able and best understood as a continuing contestation.’ It arises most clearly in at-
tempts to articulate a queer theory and practice. According to Stychin,
[c]entral to a queer identity … is the problematisation of categories of sexual
identity and boundaries of sexual propriety, as they have been historically
constituted. Queerness in part suggests an unwillingness to fix difference in any
ultimate literality. Rather, queers favour a strategically articulated commonality
forged from differently located subject positions.’
In highlighting the provisional nature of identities, then, queerness as a concept chal-
lenges prevalent modes of thought both in dominant culture and within gay and les-
bian communities, as the latter often have been no less exclusionary and essentialist in
their thinking about identity.’
A tension arises between the view of identity as unstable and open to reconfigu-
ration and the desirability of asserting coherent identity-categories for purposes of
political mobilization; for, as Stychin notes, essentialist arguments continue to have
resonance and to be persuasive within most social and political contexts. This may be
especially so in legal contexts, given that legal discourse proceeds on the basis of
categories in order to characterize and analyze legal problems. Indeed, by relying
upon essentialist claims, gay men and lesbians in countries such as Canada have
achieved significant legal advances. These claims have been especially common, per-
haps necessary, but also somewhat problematic, in the area of equality rights or anti-
discrimination law. Attempts on the part of gay men and lesbians to assert equality
rights under section 15 of the Canadian Charter of Rights and Freedoms” provide
one example. Stychin notes that the language of immutability that has been used by
the courts to add analogous grounds of discrimination under section 15 clashes with
the postmodern view of identities as fluid and contingent.”
See ibid. at 140-56.
241bid. at 141.
2 Many social movements, including the feminist and gay and lesbian movements, have been
called upon to recognize and respond to the diversity within their memberships. By viewing individ-
ual and collective identities as shifting and open to reconfiguration, a postmodern approach to identity
adds an extra wrinkle for these movements. Not only are they called upon to recognize diversity
along racial, (dis)ability, gender or class lines, they are also challenged to recognize the dynamic na-
ture of their members’ self-identification.
2’6 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
[hereinafter Charter].
27 In deciding on the recognition of analogous grounds of discrimination under s. 15 of the Charter,
ibiL, Canadian courts have used the language of “immutability” and “discrete and insular minorities”
(see e.g. Andrews v. Law Society of B.C., [1989] 1 S.C.R. 143 at 152 & 195, 56 D.L.R. (4th) 1
[hereinafter Andrews]). However, since the Supreme Court of Canada’s judgment in Egan v. Canada,
[1995J 2 S.C.R 513, 124 D.L.R. (4th) 609 [hereinafter Egan cited to S.C.R], the courts’ approach to
the recognition of analogous grounds has shifted somewhat. Although Laforest J. in his judgment
1997] J. PICKEL – LAW’S DESIRE: SEXUALITYhAND THE LIMITS OF JUSTICE
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Didi Herman has commented on the way in which, despite its possible benefits,
an approach which represents lesbians and gay men as a discrete and immutable mi-
nority may restrict rather than broaden social understandings of sexuality. Within the
minority-rights paradigm of equality, according to Herman,
[l]esbians and gay men are granted legitimacy, not on the basis that there might
be something problematic with gender roles and sexual hierarchies, but on the
basis that they constitute a fixed group of “others” who need and deserve pro-
tection. Arguably, then, human rights frameworks thus regulate new identities
in ways that contain their challenge to dominant social relations.m ‘
The current test for the addition of analogous grounds of discrimination under section
15, then, may fail to question the naturalness and implied neutrality of the background
norm against which these grounds are constituted.9
Stychin notes, however, that while identity categories may be constraining and
exclusionary, they may also be necessary politically and personally liberating.”
Moreover, the transgression of identity-categories alone will not transform the mean-
ing assigned to social categories in dominant culture. Therefore, in Stychin’s view,
collectivities will have to negotiate strategically the tension between construction and
deconstruction of identity-categories by “assert[ing] categories as meaningful and
strategically important, while avoiding a closure of their definition.”3′
II. The Possibilities and Pitfalls of Postmodern Analysis
While Stychin’s analysis offers considerable possibilities for probing the relation-
ship between law and sexuality, it also presents certain pitfalls by failing adequately to
recognize and validate the impact of political agents in the legal sphere.
On the positive side, Stychin’s discursive approach is a useful tool for unpacking
current and highly-charged debates about the social construction of identities and of
concepts such as “marriage” and “family”. For example, it is significant that, in the
context of section 28 of the Local Government Ac?2 in Britain, not only are gay men
and lesbians positioned as “other”, but same sex relationships and families are viewed
(Lamer CJ.C., Gonthier, Major JJ. concurring) refers to “groups defined by an innate or unchange-
able characteristic” (ibid at 528-529), Cory J. (lacobucci, Sopinka, McLachlin JJ. concurring) fo-
cuses on whether the basis of the impugned distinction serves to deny the essential human dignity of
the Charter claimant (ibid. at 598). Rather than focusing on immutability, he looks at whether the
group in question has suffered discrimination arising from stereotyping, historical disadvantage or
vulnerability to political and social prejudice (ibid. at 598-603). Having occurred since the writing of
Law’s Desire, these shifts in the analysis under s. 15 will no doubt be incorporated into Stychin’s fu-
ture work on this issue.
8 Rights of Passage, supra note 2 at 44.
29 See N. Iyer, “Categorical Denials: Equality Rights and the Shaping of Social Identity” (1993) 19
Queen’s L.J. 179. See also UHeureux-Dub6 L’s judgment in Egan, supra note 27 at 540; J. Nedelsky,
“Embodied Diversity and the Challenges to Law” (1997) 42 McGill L.J. 91 at 98-99.
o See Law’s Desire, supra note 4 at 154.
Ibid at 155.
22Supra note 9.
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as “pretended” rather than real.3 Stychin’s analysis, then, easily extends to section
28’s view of same-sex families as posing a constant threat to the “traditional” (and
traditionally-idealized) heterosexual family unit.
Moreover, it seems that this type of analysis is becoming ever more applicable
given recent controversies over the meaning of marriage in both the United States and
Canada.’ The debates over same-sex marriage in Hawaii and the rush by state legisla-
tures in the United States to pass legislation defining marriage as the union of one
man and one woman in the wake of the Baehr” case is remarkable, as is the recent
federal Defense of Marriage Ace’ passed by the United States Congress last January.
Applying Stychin’s poststructuralist analysis, this flurry of opposition to same-sex
marriages and families suggests the possibility that dominant notions of family and
marriage have been significantly disrupted by attempts on the part of gay men and
lesbians to have their unions officially recognized. The excluded “other”, in this case
the spectre of same-sex couples (and even worse, same-sex couples raising children),
is presenting a profound challenge to the socially constructed categories of marriage
and family.
A similar analysis could be used to interpret the spirited defense of the heterosex-
ual family in Egan v. Canada,3″ decided in 1995 by the Supreme Court of Canada.
According to Laforest J., writing for a plurality of the members of the court (Lamer
C.J.C., Gonthier and Major JJ. concurring), the ultimate raison d’etre of marriage is
firmly anchored in the biological and social realities that heterosexual couples
have the unique ability to procreate, that most children are the product of these
relationships, and that they are generally cared for and nurtured by those who
live in that relationship. In this sense, marriage is by nature heterosexual. It
would be possible to legally define marriage to include homosexual couples,
but this would not change the biological and social realities that underlie the
traditional maniage. ‘
The concept of marriage, then, according to Laforest J., is naturally fixed; it is
grounded in biological and social realities which in his view are unchangeable.”
Same-sex unions are thereby pushed outside the biological and natural frame of
analysis but, significantly, are always seeking to intrude back into it. Such an analysis
of the legal construction of the concepts of “marriage” and “family” suggests that
Stychin’s approach to the legal regulation of sexual identities might provide a frame-
33See ibid., s. 28.
TM For an analysis of the ideological construction of the notion of family and the possible implica-
tions of claiming recognition for same-sex families, see D. Herman, “Aren’t We Family? Lesbian
Rights and Women’s Liberation” (1990) 28 Osgoode Hall L.L 789.
35 Baehr v. Miike, 1996 WL 694235 (Haw. Circ. Ct.) (on appeal).
36 Pub. L. No. 104-199, 110 Stat. 2419 (1996).
37Supra note 27.
33Ibid. at 536.
39 The judgments in Egan, ibid., reflect deep divisions within the Supreme Court on the interpreta-
tion of equality rights under the Charter, supra note 26. While Laforest J.’s judgment does not reflect
the majority view on the interpretation of s. 15, it did attract as much support from the Court as any
other judgment in the case (see supra note 27 for description of the two principal opinions).
1997] J. PICKEL – LAW’S DESIRE: SEXUALITYAND THE LIMITS OF JUSTICE
491
work for understanding how other categories and concepts that affect gay men and
lesbians are invested with meaning through legal processes.
Indeed, the greatest strength of Stychin’s work lies in his analysis of cultural and
legal texts. His work is most persuasive when he engages in carefully delineated case
studies rather than making more general claims. For example, his study of an Ameri-
can case concerning gay men and lesbians in the military’ provides compelling in-
sights into the unarticulated assumptions embedded in the court’s reasoning on this is-
sue. ‘
In contrast, his chapter entitled “Equality Rights, Identity Politics, and the Cana-
dian National Imagination'”‘ tends to be rather utopian and highly general in both its
approach and conclusions. In this chapter, Stychin suggests that Canada could be seen
as the first postmodem state. 3 In his view, this is because the Canadian national iden-
tity is signified by an absence of essential definition, which effectively creates space
for the articulation of group identities using the language of nationalism. Thus, ac-
cording to Stychin, “‘Canadian’ becomes an identity open to resignification and inter-
section through an ever-increasing variety of perspectives engaged in a dialogue
guaranteed by the Canadian Charter of Rights and Freedoms.”” Later, he argues that
[tihe general approach adopted by the courts and its specific application to dis-
crimination on the basis of sexual orientation suggests a willingness to recog-
nize emergent identifies within constitutional discourse and to protect those
who so identify themselves through the equality guarantees of the Charter.”
Stychin’s analysis of the Charter in this chapter seems idealistic at best and dan-
gerously naive at worst. First, if the Canadian national identity is as open to resignifi-
cation as Stychin suggests, I am not sure why members of marginalized groups need
the courts to protect them. That is, if Canadian nationalism were truly open to the ar-
ticulation of diverse counter-narratives which ultimately inspire a reconceptualization
of Canadian citizenship, recourse to the courts for the protection of emergent identi-
ties would not be necessary. While Stychin’s effort to reconceptualize equality rights
as the contestation of identities is compelling, a greater elaboration of the role of state
political and legal institutions in this process would assist in clarifying and grounding
his analysis.
Second, there is a difference between articulating identity claims and having them
widely recognized and respected. It took ten years for the Supreme Court to recognize
sexual orientation as a prohibited ground of discrimination under the Charter.” Par-
Steffan v. Cheney, 780
. Supp. 1 (D.C. Cir. 1991). The case dealt with a challenge to armed-
at 102-116.
forces regulations that attempt to prevent gay men and lesbians from serving in the military.
4, See Law’s Desire, supra note 4, c. 5.
4 See ib
43 See ibid at 104.
44 Ibid. at 103.
41 Ibid. at 109 [emphasis added].
46In Egan, supra note 27, the Supreme Court held unanimously that sexual orientation is an analo-
gous ground of discrimination under s. 15(1) of the Charter (see ibid. at 528, 566, 572 and 603).
However, the legislation denying benefits to same-sex couples was upheld by the majority of the
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liament resisted including sexual orientation as a prohibited ground of discrimination
in the Canadian Human Rights Act’ for many years as well. These facts speak vol-
umes about the closure of social, political and legal institutions to providing even
minimal protections for gay men and lesbians in Canada. Thus, while Stychin’s
analysis may point to a more open Canada of the future, his optimism must be applied
with caution to current social and legal realities.
Overall, Stychin’s analysis would benefit from a stronger grounding in the con-
crete and situated experiences of political agents. Despite frequent references to the
need for agency and resistance, Stychin is more successful at highlighting the incon-
sistencies in legal discourse than at articulating how particular subjects take advantage
of these inconsistencies in their struggle to effect change. His analysis at times spirals
off into abstract claims –
about the openness of cultural and legal texts to discursive
resistance – without attending to the concrete experiences of political agents under-
taking this resistance. While Stychin does offer the examples of gay camp and the
production of gay pornography,” a greater range of efforts at political resistance could
be explored through the case studies that Stychin presents.
For example, in the chapter on Canadian equality rights and identity politics dis-
cussed above, Stychin advances the claim that “Canada may be particularly well
situated to further the postmodem political agenda of facilitating democratic dialogue
over an ever-expanding range of identities.”‘9 In particular, Stychin argues that the
Charter and its equality provision “ensures” the protection and development of newly
emerging identities.’ In his view, it is significant that the wording of section 15 allows
for the extension of the grounds upon which individual members of groups may claim
rights to equality before and under the law and to equal protection and benefit of the
law.’ He notes that the Supreme Court of Canada has undertaken an open-ended ap-
proach to equality rights and that it has held that the grounds listed in section 15 are
not exhaustive. 2 Stychin concludes that the political conditions of postmodernity
provide the “political and cultural explanation for why Canadian equality rights are
interpreted in an open-ended fashion” as well as “the basis for a broader understand-
ing of equality in terms of the contestation of identities.””
Stychin seems to be suggesting first, that the political and social conditions of
postmodemity explain why the Supreme Court of Canada has adopted an open-ended
court, with Lamer CJ.C., LaForest, Gonthier and Major JJ. finding no infringement of s. 15(l) (see
ibid at 539) and Sopinka J. finding that there was infringement, but that it was justified under s. 1 of
the Charter (see ibid at 572-77). The dissenting judges held that the legislation infringed s. 15(1) and
that the infringement was not justifiable under s. I (Cory and Iacobucci JJ. at 608, McLachlin J. con-
curring; L’Heureux-Dub6 J. at 568).
,7R.S.C. 1985, c. H-6.
” See Law’s Desire, supra note 4 at 33-35 and 61-66.
491bid at 103.
See ibid at 102.
‘ See ibid at 108.
5’ See ibid, referring to Andrews, supra note 27.
53Law’s Desire, ibid at 107.
1997] J. PICKEL – LAW’S DESIRE: SEXUALITYAND THE LIMITS OF JUSTICE
493
especially women’s groups –
approach to section 15 and, second, that the text of the equality guarantee “has facili-
tated”‘ this flexible interpretation. Nowhere does Stychin mention the massive lobby-
ing efforts of equality-seeking groups –
aimed at ex-
panding the wording of section 15 in order to avoid the narrow formalistic interpreta-
tion given to the equality provision in the Canadian Bill of Rights.5 To say that the
wording of section 15 “ensures” the protection of newly emerging identities obscures
the key role played by equality-seeking groups in this process. Stychin fails to ac-
knowledge the political struggles which took place over the meaning of equality –
in Canada and over the appropriate scope of con-
that is, the discourse of equality –
stitutional equality guarantees. Significantly, these political struggles had both discur-
sive and broader political dimensions. Specifically, they managed to mobilize people
not only to pressure legislators to expand the wording in section 15 but to press for a
more substantive approach to equality rights within Canada’s legal and political sys-
tems.’
My reading of the shaping of equality rights in Canada represents an alternative
reading or “truth” to Stychin’s. It seems, however, that an analysis of the struggles for
social/sexual change and of the potential for resistance and agency in bringing about a
newly-envisioned set of societal possibilities should recognize these instances of re-
sistance and agency when they occur. Instead, Stychin speaks of the “relative open-
ness” of the Canadian government and courts to the recognition of emergent identities
and of their willingness to “protect” these identities. Where are the political agents in
this scenario? In the end, one is left with the impression that this “openness” arises on
its own rather than as a result of the particular struggles of a multiplicity of political
actors and social movements.
Conclusion
Despite the critiques outlined above, Stychin’s book represents a significant contri-
bution to current literature on law and sexuality. Law’s Desire is ambitious in scope and
breaks new ground in understanding the law’s complex relationship to sexual identities
and their expression in a variety of contexts. Even if readers may not necessarily agree
with Stychin’s approach or conclusions, they will have difficulty ignoring his challenges
to commonly held understandings of law, sexuality and sexual orientation.
Ibid. at 108.
55R.S.C. 1970, App. Im. See e.g. L. Gotell, The Canadian Women’s Movement, Equality Rights and
56 See e.g. Andrews, supra note 27.
the Charter (Ottawa: Canadian Research Institute for the Advancement of Women, 1990).
