A woman launched a legal challenge to Canadian immigration laws that excluded gays and lesbians from family sponsorship rules, thereby sparking reforms that would eventually allow same-gender partners some of the same immigration rights as heterosexual couples.
In 1991, Canadian immigration laws allowed only heterosexual Canadians to sponsor their spouses as immigrants. Definitions of conjugal relationships, such as “spouse,” “fiancee” or “marriage,” referred only to opposite-gender couples. Binational same-gender partners were left with few options. In order to stay together with their Canadian partners, lesbians and gays were forced to rely on student visas, marriages of convenience, or no legal status at all.
Christine Morrissey, a Canadian citizen, and Bridget Coll, an Irish and American citizen, had been in a committed relationship for more than fourteen years despite being separated by international borders. When Morrissey filed an application to sponsor Coll for permanent residency as her life companion in 1991, immigration authorities refused to process the application because the women did not fit the definition of “family” under Canadian immigration law.
On January 14, 1992, Morrissey filed a court challenge in the Federal Court of Canada, arguing that the government’s refusal constituted discrimination on the basis of sexual orientation. Morrissey was a founder of a newly formed national lobby group, the Lesbian and Gay Immigration Task Force. She argued that the Canadian Charter of Rights and Freedoms,
The exclusion of gays and lesbians from the family class of immigration laws was also brought to the attention of the Canadian public in another highly publicized case that same year. For more than one year, Canadian citizen Andrea Underwood had been seeking to sponsor her British partner Anna Carrott. When immigration officials refused to consider Underwood’s application, she also launched legal action, in March, 1992. Underwood claimed that she was being discriminated against on the basis of her sexual orientation, in violation of the charter.
Soon after the Morrissey lawsuit was filed, immigration officials asked Coll to fill out an application under the independent immigrant class, ostensibly for the purposes of the lawsuit. However, that form was then quickly processed to grant her residency status in October, 1992, not as a sponsored family class member but as an independent immigrant. Morrissey and Coll were the first to benefit from a new policy adopted by the Canadian government to respond to gay and lesbian sponsorship applications. Although Coll was granted the right to stay in Canada, the couple was denied the opportunity to challenge the law.
All subsequent challenges to the immigration laws were processed quickly before the courts had an opportunity to decide. Carrott was allowed to stay as a permanent resident as of October, 1994. The government was thus able to avoid successive legal challenges that could have required a formal rewriting of the family reunification provisions.
The Morrissey case, along with the other legal challenges, forced the Canadian government to admit that it was unlikely to win a constitutional challenge to immigration laws that excluded gays and lesbians from family class sponsorship provisions. Thus, in June, 1994, the minister of employment and immigration devised a plan that would unite binational same-gender couples without formally enshrining equality in the immigration laws. The policy officially recognized that the separation of binational same-gender couples may cause “undue hardship,” and the minister delegated the authority to grant same-gender partner applications to program officers in visa offices abroad.
The new policy directed immigration officers to process all lesbian and gay sponsorships as independent applications. If the same-gender partner did not meet the requirement for landing as a member of the independent class, officials were to then determine whether separation created undue hardship and was grounds for exercising humanitarian and compassionate discretion. In June, 1995, it was reported that more than sixty couples had successfully used these criteria to obtain residency for a gay or lesbian partner.
However, the adoption of a discretionary mechanism to deal with gay and lesbian family sponsorship was viewed as a half measure by lesbian and gay rights activists, immigration advocates, and lawyers. There was concern about the absence of clear and transparent rules, the unavailability of appeals, and the lack of consistency of decision making by visa officers in various embassies and consulates.
In response, the immigration minister announced in January, 1999, proposed changes to the immigration law and regulations to include lesbian and gay partners in the family class provisions. On June 28, 2002, the Immigration and Refugee Protection Act and Immigration and Refugee Protection Regulations came into effect. The new law and regulations expanded the family class to include gay and lesbian couples. For the first time in Canadian immigration history, lesbians and gays were now able to sponsor their partners formally.
In changing its immigration policy toward same-gender couples, Canada joined several other countries in extending rights to prospective gay and lesbian immigrants. In addition to Canada, many other countries recognize same-gender couples for immigration purposes, including Australia, Belgium, Denmark, Finland, France, Iceland, the Netherlands, New Zealand, Norway, South Africa, Sweden, and the United Kingdom. A decade after Christine Morrissey launched her constitutional challenge, same-gender partners were officially recognized as family under Canadian immigration laws.
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Duenas, Christopher. “Coming to America: The Immigration Obstacle Facing Binational Same-Sex Couples.” Southern California Law Review 73 (2000): 811. -
Epps, Brad, Keja Valens, and Bill Johnson Gonzalez, eds. Passing Lines: Sexuality and Immigration. Cambridge, Mass.: Harvard University Press, 2005. -
Green, Richard. “’Give Me Your Tired, Your Poor, Your Huddled Masses’ (Of Heterosexuals): An Analysis of American and Canadian Immigration Policy.” Anglo-American Law Review 16 (1987): 139. -
Hart, John. Stories of Gay and Lesbian Immigration: Together Forever. New York: Harrington Park Press, 2002. -
LaViolette, Nicole. “Coming Out in Canada: The Immigration of Same-Sex Couples Under the Immigration and Refugee Protection Act.” McGill Law Journal/Revue de droit de McGill 49 (2004): 3. -
McGloin, Brian. “Diverse Families with Parallel Needs: A Proposal for Same-Sex Immigration Benefits.” California Western International Law Journal 30 (1999): 159. -
Walker, Kristen. “New Uses of the Refugees Convention: Sexuality and Refugee Status.” In The Refugees Convention Fifty Years On: Globalisation and International Law, edited by Susan Kneebone. Burlington, Vt.: Ashgate, 2003.
1972-1973: Local Governments Pass Antidiscrimination Laws
December 19, 1977: Quebec Includes Lesbians and Gays in Its Charter of Human Rights and Freedoms
June 2, 1980: Canadian Gay Postal Workers Secure Union Protections
January 1, 1988: Canada Decriminalizes Sex Practices Between Consenting Adults
December 30, 1991-February 22, 1993: Canada Grants Asylum Based on Sexual Orientation
April 27, 1992: Canadian Government Antigay Campaign Is Revealed
October, 1992: Canadian Military Lifts Its Ban on Gays and Lesbians
April 2, 1998: Canadian Supreme Court Reverses Gay Academic’s Firing
June 17, 2003, and July 19, 2005: Canada Legalizes Same-Gender Marriage