GATE vs The Vancouver Sun 

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The legal parameters of our oppression have placed us in the courts. This has become one form of struggle among many. We seek to utilize this limited forum to our best advantage. However, we are fully conscious that it is only by organizing ourselves into a political force to take what is ours that we will ever be free.¹ – GATE

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Overview

GATE filed a human rights complaint against the Vancouver Sun for refusing to publish an advertisement for GATE’s newspaper, Gay Tide.² The advertisement was for a subscription to GATE’s newspaper and read: “Subs. TO GAY TIDE. gay lib. Paper. $1.00 for 6 issues. 2146 Yew St. Vancouver.”³  The Sun claimed that the ad offended public decency and would prove to be offensive for its readers. During this time, there had been the passage of the new human rights legislation under the recently-elected NDP government, which had promised that the section outlining ‘reasonable cause’ would cover sexual orientation.⁴ GATE decided to resubmit its ad to the
Vancouver Sun, and once again, the ad was rejected, “providing the grounds for GATE’s deliberate test of the provisions of the new code.”⁵ 
During the court case, the Sun appealed to the British Columbia Supreme Court unsuccessfully, but upon appealing to the BC Court of Appeal, the original decision was overturned, claiming that the Sun had reasonable cause not to print the advertisement, on the grounds that “homosexuality was offensive to most people.”⁶ In turn, GATE appealed to the Supreme Court of Canada. “In a 6 to 3 judgment issued on 22 May 1979, that court found the Sun had reasonable cause to control the content of its advertisements, stating that the guarantee of freedom of the press in the Canadian Bill of Rights ensured a newspaper’s right not to print material it wished to exclude.”⁷

Reasons for Failure

The outcome of the case can be attributed to the pervasiveness of heterosexism in the system of law. This prevalence of heterosexism can be drawn to the 19th century when “British laws governing sexual practices were eventually incorporated into the Criminal Code of Canada.”⁸ A great number of these laws are explicitly homophobic. As Warner illustrates “the Consolidated Statutes of Canada, 1859 included buggery as an offence punishable by death.”⁹ In 1892 this perceived offence was reclassified as one of the ‘Offences Against Morality,’ remaining such an offence even for consenting adults until 1969.¹⁰ W The Sun’s reason not to publish GATE’s ad is based on the perceived offensiveness of homosexuality to most people. That the BC Court of Appeal sided with the Sun suggests two things: it agrees that homosexuality is offensive and it places the interests of the Sun to avoid offending its readers above the rights of a minority group. The source of this offensiveness can again be attributed to heterosexism, which constructs alternate expressions of sexuality as dirty, deviant, and abnormal, and the Court’s decisions only serve to perpetuate heterosexist interests through refusing GATE the right to publish an advertisement.

Significance

Despite GATE’s lack of success, the Gay Tide case marked the first time in Canadian history that a human rights board of inquiry investigated a complaint of sexual orientation discrimination, leading to the first gay rights case heard by the Supreme Court of Canada.”¹¹ In this way, the Gay Tide Case was a landmark event in the Gay and Lesbian Liberation movement. The Gay Tide case was high-profile and was seen by gay rights activists as a legal test of the state of the law and the attitudes of the courts.¹² 

The GATE Vancouver case was the fruit of a deliberate strategy by a gay liberation group to provoke discrimination in order to fight it. As GATE later editorialized, “In part it was the conscious political intention of GATE that the case should strip away any illusions about our status,” ¹³ and “what was ‘on trial’ was the very social legitimacy of same-sex love and its physical expression and by extension, the right of those of us who define ourselves as lesbians and gay men, to enjoy full equality before the law.”¹⁴

This case also served to highlight a paradox of rights claims. Those against including sexual orientation in the Canadian human rights code argued that the lack of documented cases disproved the presence of discrimination, when in fact it was the very presence of discrimination that meant gays and lesbians were afraid more discrimination would result should they come forward publicly.”¹⁵ Ultimately, cases such as the Gay Tide case served to rally gay and lesbian activists, who were aware that the few cases of discrimination brought forward in the court were a fraction of the instances of discrimination within their communities.¹⁶

 

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Footnotes

¹ ‘Gate vs. Sun,’ 2.

² Warner, Tom. Never Going Back: A History of Queer Activism in Canada. (Toronto: University of Toronto Press, 2002), 146.

³ Smith, Miriam Catherine. Lesbian and Gay Rights in Canada: Social Movements and Equality-seeking: 1971-1995. (Toronto: University of Toronto Press, 1999), 54.

⁴ Ibid.

⁵ Ibid.

⁶ Robert Cook, ‘Gays Win Protection under BC Rights Code,’ TBP, April 1976, 1. ‘Supreme Court to Hear First Gay Rights Case,’ TBP, May 1978.

⁷ Paul Trollope, ‘Supreme Court Dumps Gay Tide,’ TBP, July 1979.

⁸ ‘Warner, Never Going Back, 18-9.

⁹ Ibid, 19.

¹⁰ Kinsman, Gary The Regulation of Desire: Homo and Hetero Sexualities, 2nd ed. (Montreal: Black Rose Books, 1996), 128-9.

¹¹ Warner, Never Going Back, 146.

¹² Smith, Lesbian and Gay Rights in Canada, 49.

¹³ ‘Gate vs. Sun: A Chronology of the Case,’ Gay Tide 17 (September 1977), 2-3; ‘Supreme Court to hear first gay rights case,’ The Body Politic (May 1978), 7.

¹⁴ ‘On to the Supreme Court,’ Gay Tide 17 (September 1977), 2-3.

¹⁵ Smith, Lesbian and Gay Rights in Canada, 49.

¹⁶ Ibid, 50.