As our country prepares to head up to the cottage and celebrate the legacy of our colonizing forefathers this Canada Day weekend, why not crack open a cold one, shoot off some fireworks and mull over how the True North treats LGBTQ2S+ communities?
Sure, there are recent achievements to celebrate: Bill C-75, which will decriminalize anal sex and repeal vagrancy offences and bawdy house laws, is now before Senate; LGBTQ2 families and single people are now eligible for the same tax break for reproductive treatments that only people with infertility conditions could previously access; and Canadians can now choose the gender marker “X” on their government IDs.
But guess what? As an LGBTQ2S+ Canadian, you’re still getting royally screwed. Trust us, we’ve got the receipts.
Health Canada needs your blood, but not if you’re a man who has had sex with a man in the past three months. In that case, forget it.
Yes, in June the government dropped the blood donation deferral period for men who have sex with men (MSM) from one year to three months. But queer activists are still frustrated that after all this time, we’re still being squeamish about allowing gay and bisexual men to donate.
In the 1980s, Canada placed a lifetime ban on blood donations from any man who has had sex with a man (even once) since 1977 in an attempt to protect other blood donations from HIV. In 2013, the policy changed to allow MSM to donate, so long as five years had elapsed since their last sexual encounter with a man. In 2016, that deferral period dropped to one year.
The government has promised to address the blood ban for MSM, in part thanks to the advocacy of LGBTQ2S+ activists and patients relying on precious blood donations. In February 2017, the feds announced that it would spend a whopping $3 million to research whether it was safe for MSM and trans people to donate blood. Do we really need to spend all that money to continue justifying a discriminatory deferral period?
Want to donate your gay sperm? Don’t even think about it. While Health Canada dropped the waiting period for MSM to donate blood after three months, there’s been no decision on the little swimmers.
While the government acknowledged last October that its policy was “outdated” and proposed some changes, it didn’t specify if MSM would be allowed to donate. Like blood, Canada put a lifetime ban on sperm donations from MSM in the 1980s.
Since semen is under different regulations than blood, it requires different kinds of testing. A team currently working under the auspices of the Canadian Standards Association, led by Art Leader, professor of obstetrics, gynecology and reproductive medicine at the University of Ottawa, recently recommended a six-month deferral.
Sperm donation is complicated, since technically MSM can still donate to friends under the “donor semen special access program.” This involves applying to Health Canada and a six-month quarantine of frozen sperm. Still, the assumption that all sperm from MSM is at higher risk of carrying HIV is . . . bananas.
Listen, friend, what you’re about to hear is pretty wild.
The Criminal Code of Canada does not have a specific law that requires people to disclose their HIV status to potential sexual partners. However, the Supreme Court of Canada has established that people living with HIV do have a legal duty to disclose; the court’s rationale being that a sexual partner has the right to know whether they might be at risk of HIV transmission.
In fact, based on the current legal approaches regarding HIV non-disclosure, a person’s intent to harm a sexual partner or the actual transmission of the virus is not taken into consideration when convicting someone under the Criminal Code. Under the current legal framework, people with HIV who fail to disclose are charged and prosecuted under several Criminal Code provisions, which vary from criminal negligence causing bodily harm to aggravated assault and even, in extreme cases, murder.
Currently, most of the charges in cases of HIV non-disclosure have been aggravated sexual assault. This means that a person living with HIV who has been convicted of not disclosing their poz status to a sexual partner could receive a life sentence and be required to register as a sex offender on the National Sex Offender Registry.
For years, critics have long argued that this position perpetuates stigma and harm and that it doesn’t acknowledge the advancements of HIV/AIDS research and treatment or the reality that reduced viral loads make the virus undetectable, which also means it’s untransmittable.
In June 2019, the House of Commons released a new report recommending that the federal government limit the laws that are used to criminalize HIV non-disclosure. This report was a result of meetings in which the Standing Committee on Justice and Human Rights heard evidence from scientists, researchers, legal and public health experts as well as people living with HIV.
In an interview with The Canadian Press, Justice Minister David Lametti says the federal government won’t be able to act on the recommendations prior to the October federal election. He says that if re-elected, the Liberal government could explore more options regarding the decriminalization of HIV non-disclosure. Another day in the life of queer folks, where our identities are politicized and we’re on standby ’til after the election to see some ~maybe~ progress.
Expungement and criminal records
Remember when Prime Minister Justin Trudeau apologized for the country’s horrendous criminalization of LGBTQ2S+ people — including those purged from their jobs in the military and the civil service between the 1950s and 1990s? That was nice — at least someone in a position of authority called the treatment of our communities what it was: “state-sponsored, systematic oppression and rejection.”
As part of the apology, the feds introduced Bill C-66, the Expungement of Historically Unjust Convictions Act, in November 2017. The bill would allow those convicted as a result of anti-queer persecution to apply to have their criminal records expunged and removed from the public record. It passed through the House easily.
But (because nothing is as glorious as it seems) the bill had some serious faults. For starters, it only allowed those convicted under buggery, gross indecency and anal intercourse laws to apply for expungement — ignoring a number of other crimes that have historically targeted LGBTQ2 Canadians, including indecent acts, vagrancy and the bawdy house laws.
To make matters worse, the actual application process for expungement is . . . the worst. As activist Gary Kinsman told CBC, many folks are struggling to gain access to the police and court documents needed to proceed. As a result, few have applied — and still remain criminals in the eyes of the Canadian government today.
Deportation of LGBTQ2 refugees
If you’re seeking asylum, you’re not queer until Canada decides you are. Despite expanding funding for privately sponsored LGBTQ2 refugees, immigration officials continue to make the final call on whether refugees are queer enough to recieve ayslum.
The United Nations High Commissioner for Refugees has guidelines for how front-line workers should try to determine the sexual orientation of refugee claimants. These include suggestions like asking claimants about their romantic, familial and community relationships, their experiences of “difference, stigma or shame,” as well as their childhood.
However a look at some of the judgements in Canada show that some immigration officials don’t understand how sexual orientation works, and the procedure can get really ridiculous: from asking a claimant if they’ve ever had straight sex, to denying them status for not having enough involvement in Canada’s LGBTQ2S+ community, to officials not understanding that the reason a claimant may have had a secret gay partner back home was because if people found outy, they’d be, well, dead.
What’s more, LGBTQ2 refugees are often given lower priority in times of crisis. Canada’s federal immigration department has admitted to resettling fewer LGBT Iranians from Turkey in order to make space for the late-2015 Syrian airlift. It’s worth noting that during the same period gay men from Syria were also settled in lower numbers to create more spaces for heterosexual Syrians. Meanwhile, Canada has deported, or tried to deport, refugees from several countries including St Kitts and Nevis, St Vincent and the Grenadines, and Honduras for not being queer enough, or because officials didn’t believe they were in enough danger despite being presented with proof.
When it was announced in 2016 that PrEP was approved in Canada, it seemed like a significant step toward a new era of HIV prevention in the country. But actual access to Truvada (the brand name of the treatment used to prevent HIV transmission) is still a major issue.
Health Canada’s approval doesn’t do much about the huge cost of Truvada, nor does it force insurance companies or provincial pharmacare plans to pick up the tab. Canadians who wanted PrEP only had access to the brand-name drugs, produced by Gilead Sciences, which cost nearly $1,000 a month. In July 2017, generic versions produced by Teva, Mylan and Apotex cut the costs in Canada by more than half.
Most provinces and territories cover PrEP if you have a private drug plan, but it’s universally covered in Alberta and British Columbia. (Since making PrEP free, Vancouver has had the lowest rates of new HIV infections since the mid-1990s.) It’s also federally covered for qualifying groups under the Non-Insured Health Benefits Program. Still, access in other parts of Canada, including rural areas and within marginalized communities, is still difficult and can force some users to have to either buy online or cross the border to get the medication.
We don’t even know why this is still on the list. Conversion therapy claims to change the sexual orientation of LGBTQ2S+ people through prayer and talk therapy. However, there’s no scientific research that supports this practice at all. Instead, Canadian Psychological Association denounced the practice and said that it can result in damaging outcomes for individuals such as depression, negative self-image and a feeling of personal failure.
While the federal government called conversion therapy “immoral,” it says it’s a provincial and terriorial issue, meaning it could be addressed through existing sections of the Criminal Code. So when a person is forced to undergo conversion therapy, criminal charges like kidnapping, assault and forcible confinement may apply.
Liberal senator Serge Joyal tabled federal Bill S-260, which was introduced into the Senate in April that, if passed, would make it illegal to advertise conversion therapy to anyone under the age of 18, and make it illegal to accept compensation for conversion therapy provided to those under 18.
But what about just . . . banning conversion therapy completely?