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	Murdoch University Electronic Journal of Law

Little Sisters: What the Supreme Court of Canada Really Decided

Author:	Christopher N Kendall BA (Hons), LLB, LLM, PhD Associate Professor, Murdoch University School of Law
Issue:	Volume 7, Number 4 (December 2000)

Contents

1. On December 20, 2000, the Supreme Court of Canada ruled unanimously [Little Sisters Book and Art Emporium v. Canada (Minister of Justice)] that gay male and lesbian pornography can violate the equality test for pornographic harm first set down by the Court in its 1992 decision in R v Butler. The Court also held that Canada Customs must not apply this test in a discriminatory manner, such that non-harmful materials are wrongly detained.

2. Pro-porn activists have been quick to applaud the latter finding, one that anti-porn feminists have long supported. But these same activists (including LEAF, EGALE and the other pro-porn Interveners in the Little Sisters case) have been remarkably silent on the central issue on which they appealed and lost: the Court's finding that same-sex pornography can do harm and can therefore, like heterosexual pornography, be excluded from Canada. Despite the best efforts of these groups in their arguments to the Court to justify lesbian and gay pornography as life affirming, liberating etc., Canada's highest court has now made it quite clear these gay and lesbian pornography, simply because it is gay or lesbian, can be anything but life affirming or liberating.

3. So why the silence folks? Could it be because the Court has handed you a blunt reminder that inequality of any sort, (in particular that done in and by pornography, goes against everything in society that values non-discrimination? Could it be because the Court has reaffirmed that all Canadians, including gay and lesbian Canadians, deserve to live in world in which sexuality is not hierarchical and polarized and violating? Could it be because the Court has applauded the efforts of Equality Now, the only Intervener who argued the pro-gay, anti-pornography analysis the court adopted? Or is it just because you lost hands down and are trying to make people believe you won?

4. It would seem to me that gay activists would do well to celebrate the Court's ruling that harm is harm, including harm to gay men and lesbian women. And yet, nothing of the sort has even been mentioned. This troubles me and suggests that LEAF and the others involved in this litigation need to be reminded of what it was they were defending when they took this case to the Supreme Court of Canada. What this analysis reveals is that, while the court's recounting of the trial court's findings that customs discriminated against Little Sisters deserves notice, those findings were not on appeal by anyone. No one questioned that result before, during, or after the case was argued. What was contested in Little Sisters, and Little Sisters lost decisively, were the questions of whether gay and lesbian pornography can do harm to equality rights, whether an equality harm-based test can validly apply to gay and lesbian materials, and also whether customs could stop harmful pornography from entering Canada at all.

5. In Little Sisters, the arguments made by those wanting to throw out Canada's anti-porn laws all relied to some extent on one underlying theme: gay porn is gay identity. This is evident in the arguments of the Appellant Little Sisters Bookstore, for whom, their Factum states, "there is evidence, overwhelmingly and virtually uncontradicted, that gay and lesbian sexual imagery and text, including that which has been denied prohibited entry, is vital to gay and lesbian identity, dignity, self-worth, community formation, health and education." This is a view shared by the Intervener LEAF who argued that the materials in issue affirm same-sex sexuality by "presenting it as healthy, meaningful and empowering."

6. The same position is evident in the words of EGALE Canada in their Factum before the court, in which the group, professing to speak for all lesbians and gay men, explained that "sexually explicit lesbian, gay and bisexual materials challenge the dominant cultural discourse. They resist the enforced invisibility of our marginalized communities and thereby reassure us that we are not alone in the world, despite the apparent hegemony of heterosexuality. They reduce our sense of isolation. They provide affirmation and validation of our sexual identities by normalizing and celebrating homo-and bi-sexual practices, which mainstream culture either ignores or condemns. In short, they help us feel good about ourselves in an otherwise hostile society." Elsewhere, the same group argued that in addition to helping lesbians and gay men, same-sex pornography can be seen to actually help society as a whole: "sexually explicit homo-erotic materials have liberating effects that benefit women as a whole, as well as lesbians and gay men. By subverting dominant constructs of masculinity and femininity, homo-erotic imagery and text challenge the sexism that is believed to be endorsed and reinforced by mainstream heterosexual pornography." This too is a view shared by LEAF who argued that "the equality rights of heterosexual women are also affected by the targeting of LGBT materials. These materials benefit heterosexual women because they may challenge sexism, compulsory heterosexuality and the dominant, heterosexist sexual representations which often portray 'normal' heterosexuality as men dominating women and women enjoying pain and degradation."

7. Really? I wonder aloud if any of these people actually took the time to examine the materials they defended in court. The Supreme Court of Canada did. Its conclusion? There is nothing about the harm that results from lesbian and gay pornography that distinguishes it from the harms that result from the production and distribution of heterosexual pornography. Rejecting LEAF's position on sadomasochism, for example, the Court notes:

   The intervener LEAF took the position that sado-masochism performs an emancipatory role in gay and lesbian culture and should therefore be judged from a different standard from that applicable to heterosexual culture...The portrayal of a dominatrix engaged in the non-violent degradation of an ostensibly willing sex slave is no less dehumanizing if the victim happens to be of the same sex, and no less (and no more) harmful in its reassurance to the viewer that the victim finds such conduct both normal and pleasurable.

   I too have had an opportunity to review the materials at issue in this case. My conclusion? The Court and Equality Now got it right. If many of the materials defended by Little Sisters embody the identity defended by pro-porn and pro-gay advocates, as these groups say they do, gay porn is made through, expresses, and conditions us to enjoy a sexuality that epitomizes and promotes inequality: exploitation and degradation of others; assertiveness linked with aggression; physical power linked with intimidation; and non-consensual behaviour advanced, and sexually promoted, as liberating. In sum, gay male pornography merges with an identity politics that personifies all that is masculine, hence gender "male", and which rejects all that is non-masculine, feminized, hence gender "female" -- an identity in which, as Andrea Dworkin explains, gay men are not only penetrated like women, but they also lust after pain and degradation like women.

8. By referring to the presentation of gay men as "feminized" and therefore "female," I am not suggesting that gay men and all women are equally oppressed. Nor am I suggesting the harms of gay porn are exactly the same as those that result from the production and sale of heterosexual pornography. As Andrea Dworkin elsewhere explains, "devalued males can always change status; women and girls cannot." What I am saying, however, is that to the extent that some gay men reject socially defined "male" behaviour, and express a sexuality and politic which has the potential to subvert male gender supremacy, their behaviour is deemed unacceptable and is devalued as such. The gay male who does so is, as John Stoltenberg explains, "stigmatized because he is perceived to participate in the degraded status of the female." Once "smeared with female status" the gay male assumes a position inferior to those who, not feminized, reap the benefits of male/female polarity. Feminized men thus assume an inferior position in a gendered power hierarchy. And gay male pornography makes that position sexy.

9. And herein lies one of the very real harms of the gay porn defended in Little Sisters. It tells gay men that in order to become more valued, they must become more "male," less "female." It encourages them to do what they can do: "change status." Note, for example, the all too typical quotation below, taken from an article in Manscape Magazine, not in issue in Little Sisters, but it would have been legal if Little Sisters had its way:

   I pushed him lower so my big dick was against his chest; I pushed his meaty pecs together. They wrapped around my dick perfectly as I started tit-fucking him like a chick. His hard, humpy pecs gripped my meat like a vice. Of all the things I did to him that night I think he hated that the most. It made him feel like a girl. I sighed, "Oh, my bitch got such pretty titties! They was made for tittie fuckin, made to serve a man's dick.

   This passage, like many of the materials outlined above, reminds the reader that to be "male" is to be empowered, but that to be male requires conformity to a clearly defined gender norm -- a gender role according to which some are entitled to sexually abuse and control, while others, because they are descriptively less "male," are socially less relevant, less equal, and not entitled to the respect, compassion, and human dignity that only true equality can provide.

10. In the world of gay male pornography, this quotation is neither extreme nor atypical. In many of the materials that are part of the record in Little Sisters, and defended by Little Sisters and their supporters, we get materials that sexualize racist stereotypes and degrade members of racial minorities for the purpose of sexual arousal. Gay Asian men, for example, are presented as smaller and more feminine than their Caucasian counterparts and thus as willing to be sexually subordinated by a more, dominant, more stereotypical white male. While degrading to Asian gay men, the materials also justify through sex the attitudes and inequalities that make racism and sexism a powerful and interconnected reality. The white male is one who seeks out an inferior Asian other; the young Asian is presented as ready and willing to serve his sexual needs and fantasies. The white male is superior; the Asian male inferior. In a similar vein, the reader is offered materials in which African-American men are presented as violent sexual predators with extremely large sexual organs who care only to emasculate white men through rape or in which the same men are presented as sexually desiring to be the slaves of white men needing to reaffirm a masculinity so very much threatened by the Black male. The result affronts all persons seeking equality and makes that equality less likely.

11. In the name of identity, we are also offered materials by Little Sisters, defended as different from straight pornography hence harmless in the gay community's special world, in which gay men sexualize incest and sex with children, reinforcing the stereotype that gay men "recruit" by preying sexually on boys. Gay men are purported to reveal their "initiations" into sexuality as children through graphically presented sexual assaults by fathers, uncles and older siblings, with these assaults in turn presented as pleasurable for both the abuser and the child involved. From these and other materials, we are told to glorify masculinity and men who meet a hyper-masculine, muscular ideal. The result is such that men who are more stereotypically feminine are degraded as "queer" and "faggots" and are subjected to degrading and dehumanizing epithets usually used against women, such as "bitch", "cunt" and "whore." These men are in turn presented as enjoying this degradation.

12. In these materials, violence by one man against another man or men is presented as sexual for the persons involved and for the consumer of these materials. For example, in the magazine, Entertainment for a Master, one of the exhibits Little Sisters defended in the case, reciprocal battery, pain and abuse are promoted as a form of equality:

    Then I struck out at him. The leather was longer than a belt would have been. It allowed me to use it on the whole of both his cheeks. It left one broad stripe of red across the white expanse of muscle. He reared up. No amount of preparation would have steeled him so well that he wouldn't scream at the shock of the whipping. When, he moved, he jerked the rawhide holding his balls to Glen and the chains that joined the nipple, forcing his lover to experience a jolt of pain himself.

    Similarly, the magazine Dungeon Master - The Male S/M Publication, which would also have been freely imported if Little Sisters had its way, presents men torturing other men in sexually explicit ways with hot wax, heat and fire, while sexualizing this abuse as sexually arousing for the abusers, the persons injured, and, again, for the consumer. Similarly, the magazine Mr. S/M 65 presents photographs of men being defecated on and who derive pleasure from eating and drinking excrement. The film Headlights and Hard Bodies includes footage of men sexually using other men who are being pulled by neck chains, hit and whipped while tied to poles, penetrated by large objects and/or subjected to clamping, biting and pulling of their nipples and genitals. The men presented as "slaves" are shown in considerable pain but finding sexual enjoyment from the abuse inflicted on them by others. Those released from bondage kiss the man or men who beat them and thank them for putting them in their place with whips and verbal degradation. Mach magazine, in turn, glorifies sexually explicit torture in a military setting, while detailing the kidnapping, torture and sexual mutilation of prisoners of war. In a photograph in the same magazine, two very young men are shown confined to a cage. One, face down and bent over, is being slapped by an older man in a Nazi military uniform. Another is chained and hung in stirrups with a hand shoved down his throat.

13. As in a great deal of written or pictorial gay male pornographic presentations, what one gets from the above materials at issue in Little Sisters is a "source of affirmation" in which the physically more powerful, ostensibly straight male is frequently glorified. What the materials examined thus far provide is a sexualized identity politic which relies on the inequality found between those with power and those without it; between those who are dominant and those who are submissive; between those who are top and those who are bottom; between straight men and gay men; between men and women. In sum, they reinforce a system in which, as Catharine MacKinnon explains, "a victim, usually female, always feminized" is actualized. In so far as sex equality is concerned, the result is the promotion and maintenance of those gendered power inequalities that reject a non-assimilated gay male sexuality and ensure that homophobia, sexism and racism remain sexualized and intact.

14. What one sees in gay male pornography more generally, defended against any restriction by Little Sisters and their supporters, is an almost pervasive glorification of the idealized masculine/male icon. Cops, truckers, cowboys, bikers and Nazis are eroticized, racial stereotypes are sexualized and perpetuated, muscle, "good-looks" and youth are glorified, and ostensibly straight (or at least "straight acting") men beat, rape and/or humiliate descriptively (frequently stereotypical) gay men. Sadism, bondage, watersports, fisting, bootlicking, piercing, bestiality, slapping, whipping, incest, branding, burning with cigarettes, torture (of the genitals and nipples, with hot wax, clamps and the like), child sexual abuse, rape, and prison rape, are presented as erotic, stimulating and pleasurable. In most, if not all of these materials, it is the white, physically more powerful, more dominant male who is romanticized and afforded role model status. In those scenarios where male sexual partners "take turns" being the "top," the characteristics of dominance and non-mutuality remain central to the sexual act. The result is a sexuality which is hierarchical and rarely (if ever) compassionate or mutual -- in other words, equal.

15. This is gay male pornography. This is what Little Sisters appealed to the Supreme Court of Canada to defend as harmless and to place beyond the reach of equality law. While content and presentation vary in degree and explicitness from one medium to another, what one gets from the above is an overview of what gay male pornography is. If you defend gay male pornography, you defend this, and you defend it as gay male identity -- an identity which equals, promotes, encourages, hence is violence, cruelty, degradation, exploitation, assertiveness linked with aggression, strength equated with violence, physical power and the right to overpower, intimidation, control of others, lack of mutuality and disrespect, being hurt presented as pleasurable, violating and being violated presented as identity politics, and aggressive, non-consensual behaviour advanced as normal, liberating and sexually promoted as such. In sum, gay male pornography encourages all that is masculinity ("male") socially defined and rejects that which is non-masculine, gender "female." Like heterosexual pornography, it thus glorifies those in our society who have always had the most power and who have always benefited from dominance and social inequality -- white, able-bodied, middle-class, straight men. The result for society, once accepted, is a sexual politic based on a male/female dichotomy -- in essence, a remarkably accurate description of what it takes to get and maintain male power.

16. The purpose of homophobia is to ensure that gay men are bullied into rejecting any sexual expression that undermines male power. To the extent that male supremacy depends on gender inequality, gay men, because they have the potential to develop relationships that do not depend on a male/female hierarchy, threaten male supremacy. As Suzanne Pharr explains, "misogyny gets transferred to gay men with a vengeance and is increased by the fear that their sexual identity will bring down the entire system of male dominance and compulsory heterosexuality." Homophobia, which finds expression in gay bashing, employment discrimination, and familial and social ostracization, reminds all men that if they "break ranks with males through bonding and affection outside the arenas of war and sports" they will be "perceived as not being 'real men,'" that is, as being identified with women, "the weaker sex that must be dominated and that over the years has been the subject of male hatred and abuse." The gay male, socially feminized, internalizes this misogyny and seeks to mimic those behaviours and characteristics that will, he hopes, allow him to "pass" for the "male" he is supposed to be. Gay male pornography presents this sexuality as the sexuality, hence identity, of gay men.

17. Given this, it is clear that when looking at gay pornography, it too is an issue of homophobia and as such, an issue of sexism. In particular, it is the reality of gay men's lives generally (in particular their social marginalization) that makes gay male pornography the homophobic threat that it is. Masculinity, for those gay men who have been penalized for failing to meet its criteria and who are told that they are "weak, effeminate and maladjusted," promises privilege and a safety net with which to find social acceptance, rather than a means by which to really parody and subvert oppressive gender categories. This assumed safety net is exactly what makes gay pornography a serious threat to the equality of gay men and all women. It tells the gay male that every sexual relationship must be hierarchical and that male power is at the top of that hierarchy. It promises the gay male a false security that he too can gain more power if he can become that which epitomizes male power -- masculinity taken to its extreme. Unfortunately, the power promised is a facade and does a great deal to further maintain male dominance -- the source of all that is anti-gay and anti-woman.

18. Gay male pornography does what the homophobe has done quite successfully for some time now. Specifically, it works to maintain gender roles by encouraging gay men to adopt an identity that valorizes male dominance and by stating unequivocally that those who choose not to adopt this identity have no value, no power. It embodies the very essence of sexual inequality by promoting all that is pro-male dominance, hence anti-woman and of necessity anti-gay. Gay male pornography is thus homophobic and, as such, a form of sex discrimination. It ensures that those models of sexual behaviour which might undermine sex inequality are suppressed and that women and those men who do fail to conform remain unequal. Ultimately, this does nothing to affirm personal liberties and freedoms. It does, however, do a great deal to ensure the survival of a system of gender inequality that is degrading and dehumanizing and which reinforces, by sexualizing, the very power dynamics that ensure systematic inequality.

19. LEAF, battered for nine years by those quick to label the group homophobic, argued in the Little Sisters appeal to the Supreme Court of Canada that lesbians and gay men need sexual expression because they are a socially disenfranchised group in need of expression. So far so good. But what, I wonder, do the materials defended in Little Sisters, including by LEAF, have to do with justice and empowerment? In Butler, the Supreme Court of Canada did much to recognise the threat to systemic equality caused by materials which sexualize inequality. LEAF developed the analysis that encouraged this finding. In Little Sisters, it asked the Court to simply ignore materials which present men violating men, and women violating women, rather than those which present men violating women. To my mind, such a distinction is both regressive and anti-egalitarian -- and oddly homophobic. Why should harms done to gay men and lesbian women not be seen as harmful? Biological sex switches do not eradicate the harms of those gender hierarchies which result in real abuse against real people. Fortunately, the Supreme Court of Canada has now agreed, specifically rejecting LEAF's assertions both in substance and by name, while strengthening the analysis of social harm it made in Butler.

20. Lesbians and gay men want equality. Pornography, defended in Little Sisters by the very group that once advocated its elimination, will not help us get it. Equality Now, the group that successfully convinced the Court to recognize the real harms done by gay and lesbian pornography that were first glimpsed in Butler, and which argued that not to do so would be homophobic, is well named. Those celebrating the Little Sisters ruling would do well to emulate and applaud their efforts.