Equity & Diversity
Clients in the lesbian, gay, bisexual and transgendered communities: a checklist for lawyers
by barbara findlay
Lesbian, gay, bisexual and transgendered legal issues are very much in the news of late, with major decisions and new legislative amendments coming down almost weekly. If you think these issues do not apply to your practice, you may want to think again. Approximately 25% of B.C. statutes contain a reference to family relationships. The number that have been amended to include same-sex partnerships is growing. Federally, Bill C-23 is designed to amend 68 federal statutes to extend the benefits and obligations of married people to common-law relationships, including same-sex partnerships.
Vancouver lawyer barbara findlay (email@example.com) of Dahl findlay Connors brought these issues to the Benchers in an educational presentation at their December 3 meeting, noting that sexual orientation and identity issues impact on a wide range of practice areas — including family, immigration, human rights, and wills and estates — of importance to any law firm.
In her materials Ms. findlay included a practice checklist intended to highlight the issues that practitioners might face in dealing with lesbian, gay, bisexual or transgendered clients, and the contents are summarized below for assistance to lawyers. The checklist is not intended to be definitive or exhaustive or to substitute for the research necessary to explore these issues in depth.
Because your approach to a legal problem will be impacted throughout by the answers to the following, you should, as a routine part of every interview establish whether your client is lesbian, gay or bisexual and/or transgendered (LGBT). If your client is LGBT, find out whether she or he is "out" in the context of the legal problem (as spouse, employee, etc.) and consider what impact that will have on the conduct of the case. If you have two people of the same gender as clients, establish if they are life partners. Establish whether your client is an Indian within the meaning of the Indian Act and establish your client’s status under the Immigration Act.
If your client’s problem is governed by any provincial statute that contains a definition of the words "spouse" or "domestic partner," or any federal legislation of a similar nature, ensure that your client’s situation is not affected by the statutory differences in treatment between heterosexuals (or heterosexual couples or families) and lesbians and gay men (or same-gender couples or families).
If your client’s situation is disadvantageously affected by the differential treatment in the statute, consider remedies under the Human Rights Code, through the Ombudsman, or under the Canadian Charter of Rights and Freedoms. Advise the client of her or his remedies against discriminatory legislation. If your client’s situation is advantageously affected by the differential treatment in the statute, advise the client of the probability that such advantageous treatment is not likely to persist and to be aware of legislative developments.
Note: B.C. has amended some legislation — most notably the Adoption Act and the Family Relations Act and pension benefits legislation. Because the definition of "spouse" is amended whenever a piece of legislation is up for change for another reason, it is essential to check every statute every time one is acting for an LGBT client. (Yet to be proclaimed are amendments to the Estate Administration Act, Family Compensation Act and Wills Variation Act.)
Expert advice — If your client needs an expert opinion, ensure that the expert is not homophobic and/or has experience with cases involving lesbians, gay men, bisexuals or transgendered people, as the case requires.
Mediation/family court counsellors and others — Confirm that the mediator/counsellor understands the impact of homophobia on the situation under consideration. Confirm that the mediator/counsellor has experience with and knowledge of issues in the context of LGBTs.
Civil litigation — Explore whether your LGBT client is out and discuss the issues of "outing" in the context of the litigation.
Corporate — If life partners are associating for business purposes, recommend a cohabitation agreement as well as standard shareholders’ agreements.
Criminal law — Consider special risk for gay men and transgendered people in jails and prisons. Consider impact of homophobia / transphobia in sentencing submissions. (Crown) Consider unconstitutionality and inappropriateness of homosexual panic defence.
Employment law — Being LGBT is not grounds for dismissal. Harassment policies should include LGBTs and should also take into account the dynamics of homophobia and transphobia.
Employment insurance — Insist that same-gender partners be treated the same as opposite-gender partners for any rules, including justification for moving and childbirth leave provisions.
Family law — Approach same-sex relationships on the same basis as common law heterosexual relationships. If the client is Indian within the meaning of the Indian Act and/or living on reserve, confirm appropriate legal regime (it may be band-specific) and consider equality issues in relation to LGBTs. Step-parent adoptions are available only after six months from the birth of a child, so if a child is being conceived by donor insemination, prepare a donor insemination agreement. Carefully check current law on pensions. In same-sex step-parent adoptions, include affidavits from birth mother and co-mother. If the child was conceived by anonymous sperm donation, get letter from sperm clinic; if conceived with sperm from known donor, get consent to adoption from him. If client is transgendered, consult specialist in transgendered issues before launching on a course of action, particularly if children are involved. If client is "in the closet," discuss the pros and cons of staying in the closet through the litigation process, especially if custody or access issues are involved.
Gender/name change — Confirm status of transgendered person in terms of identity documentation.
Health law — Confirm funding rules and explore discriminatory aspects of MSP funding for sex reassignment surgery. Recommend health care directives for LGBT clients if anyone in the family is homophobic or transphobic; have client confirm directions with physicians.
Human rights — Consider combined grounds (e.g., race and sexual orientation). Consider unlisted grounds (e.g., gender identity).
Immigration — The non-Canadian partner of a Canadian is eligible to immigrate through use of "humanitarian and compassionate grounds." Consult an LGBT or immigration expert. If client is HIV positive or has AIDS, consult expert about immigration rules governing admissibility of people with "expensive" diseases.
Income tax — Consult a knowledgeable lawyer in LGBT law or in tax law for the most current rules applicable to LGBTs.
Libel — Old case law says it is libellous per se to call someone a homosexual.
Pensions — Consult a knowledgeable lawyer in LGBT law or in tax law for the most current rules applicable to LGBTs.
Real estate — Same-sex partners do not have to pay property transfer tax on transfers between them.
Trusts — The law of constructive trusts applies to same-gender relationships.
Wills and estates — Recommend a health care directive for same-gender or trans-partners, particularly if they are not out to their family members. Carefully check current law on pension and RRSP designations. File for survivor’s benefits on all public and private pension plans, including CPP. Check status of proclamation of Definition of Spouse Amendment Act on same-sex partners on intestacy and changes to Cemetery and Funeral Services Act, Coroners Act, Family Compensation Act and Wills Variation Act.