Pioneering gay activist Jim Egan publicly challenged a culture of rampant homophobia in the press starting in the late 1940s, when it was dangerous to speak out. In the late 1980s, Jim Egan challenged the Government of Canada to receive spousal benefits for his life partner, Jack Nesbit. Their case would ensure that sexual orientation is protected under the Charter of Rights and Freedoms – a landmark victory for the LGBTQ2 community. His fight for equality is the subject of a new Heritage Minute.
The following is an excerpt from Tim McCaskell’s Queer Progress: From Homophobia to Homonationalism that delves deeper in to Egan’s legacy.
Egan and Nesbit
Jim Egan may have been Canada’s first gay activist. Born in Toronto in 1921, by 1949 he was writing letters to local papers chastising them for sensationalist anti-gay articles. In 1951, he wrote a parliamentary law reform committee under his own name to argue for the repeal of “gross indecency.” In touch with the Mattachine Society and other homophile groups in the United States, Egan became a mentor to early pioneers such as George Hislop and Sarah Ellen Dunlop, introducing them to the new homophile literature from south of the border. In the mid-1960s, he helped organize political discussion groups in The Music Room, one of the city’s most popular early gay clubs. But his partner, Jack Nesbit, whom Egan met in 1948, was decidedly not political. Nesbit prevailed on him to move to British Columbia in the late ’60s, where the couple lived a quiet life.
By the late ’80s, however, both men were eligible for old age security, and they applied for a spousal allowance. They knew it was a political act. As expected, the application was denied. The Old Age Security Act only recognized opposite-sex spouses. That denial began a new round of activism for Egan, but in 1989, the logical course of action was no longer letter writing or pressing politicians for law change. The couple took the Department of National Health and Welfare to court, alleging discrimination. By October 1994, Egan and Nesbit had made its way to the Supreme Court. Most of the cost was covered by the federal Court Challenges Program.
EGALE was a major intervenor in the case. A normative aging couple, denied benefits despite being together for more than forty years, was about as good as it could get. MCC also intervened. The list of other supporting groups illustrated a broader coalition around the basis of unity of equal rights: the Canadian Human Rights Commission, the Quebec Human Rights Commission, and the Canadian Labour Congress.
Only one intervenor opposed the recognition of same-sex spouses, the Inter-Faith Coalition on Marriage and the Family. That, too, demonstrated a new constellation—of conservative religious groups. The coalition included Focus on the Family, The Evangelical Christian Fellowship, the Ontario Council of Sikhs, the Canadian Conference of Catholic Bishops, the Islamic Society of North America, a Hindu association and two Jewish groups.
Mainstreaming was also having other effects. Tom Warner—the veteran CLGRO activist who had co-chaired the Campaign for Equal Families while arguing for recognition of a broader range of relationships—was approached to speak at the rally the day the Supreme Court decision on Egan was to come out. But someone on the organizing committee apparently had second thoughts. “I got a call just before I was going to go over to Church and Wellesley for the demonstration,” he recalls. “They were really worried that I was going to get into an anti-marriage rant.” Warner assured the organizers that he would not rant but refused to let them vet a copy of his speech.
The May 1995 decision was a mixed bag. The court confirmed that sexual orientation was an analogous ground under the Charter, and that the opposite-sex definition of “spouse” in the Old Age Security Act was in violation. But although several judges wrote dissenting opinions, the majority found that the refusal of a spousal allowance was still “justified.” Although Egan and Nesbit did not get their pension, the case was a watershed that cleared the way for others. It also raised EGALE’s profile. In a further move to mainstream, the group set up the EGALE Human Rights Trust, a registered education-focused charity that could issue charitable tax receipts for donations. Political advocacy work would continue to be the responsibility of EGALE itself.
Hate and Discrimination
The Egan case overshadowed another legislative victory that June. Federal hate crimes legislation, including sexual orientation, was passed. It had been a Liberal campaign promise, and although it had never been a major issue for lesbian and gay activists, hate crimes legislation had been a key demand by Jewish groups and was widely supported by a range of other minorities. Although there was little evidence that harsher penalties ever deterred a hate crime, the legislation allowed for longer sentences if hate could be demonstrated as the motive. Nonetheless, the inclusion of sexual orientation stirred up vocal opposition from several homophobic Liberal backbenchers and the Reform Party, spooking the Liberal government.
So it took another year to convince the Liberals to live up to their second promise—to formally add sexual orientation to the Canadian Human Rights Act. (Sexual orientation had already been “read in” to the act by the 1992 Ontario Court of Appeal decision.) Despite support from Minister of Justice Alan Rock and promises by Prime Minister Chrétien himself, a vocal minority of Liberals again opposed any changes.
When the government appeared to be dragging its feet, EGALE took a leading role in reminding them of the disastrous outcome of Lynn McLeod’s flip-flop over spousal rights in Ontario. Using a backdrop of a huge pair of flip-flop sandals at press conferences, EGALE executive director John Fisher made Chrétien’s “integrity” the issue, backing the notoriously prickly prime minister into a corner.
Luckily, the opposition Reform Party, the social conservative party that had split the conservative vote with disastrous results for Mulroney’s Progressive Conservatives, had become intoxicated by the rhetoric of the U.S. right wing and quickly isolated itself by indulging in strident homophobic language in response. Their remarks were framed in the press as extremist. Media coverage again established “tolerance” as a Canadian value. Nonetheless, Chrétien allowed a free vote on this issue to minimize dissention in his caucus, and Justice Minister Rock repeatedly assured everyone who would listen that the bill would have no bearing on same-sex spousal benefits or marriage. The bill passed easily with the support of the Bloc Québécois and the NDP opposition.
Despite the political timidity, and in the case of the Human Rights Act, the fact that sexual orientation had already been included by the courts, in both cases, the legislation was an assertion that lesbians and gay men were worthy of protection like other minorities, another step towards being embraced by the nation.
Posted June 13th, 2018