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This article explores feminism's relationship to the legal regulation of pornography. Of particular interest to the author is how the defining moment of the Butler decision has been opened up to contestation and complication by Little Sisters Book and Art Emporium et. al. v. Minister of Justice et al., a recent Supreme Court of Canada decision regarding Canada Customs violations of the free expression and equality rights of a Vancouver-based gay and lesbian bookstore. The focus of the article is on the role that the Women's Legal Education and Action Fund (LEAF) played in both Butler and Little Sisters. The author contends that while much has changed for the better since Butler, problematic legal strategies continue to be reproduced by LEAF. While LEAF has to some extent nuanced its arguments with regard to pornography's relationship to harm, the author argues that neither LEAF's Butler nor its Little Sisters facta work to destabilize the relationship of sex, gender, and sexual orientation identity and their complicated relationship with pornography.
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Le prsent article analyse la relation entre le fminisme et les dispositions juridiques rglementant la pornographie. L'auteure s'intresse particulirement au point tournant survenu lorsque l'arrt Butler a t contest et complexifi par l'arrt Little Sisters Book and Art Emporium et. al. c. Ministre de la Justice et al., dcision rendue par la Cour suprme du Canada. Ce dernier arrt porte sur des atteintes par Douanes Canada la libert d'expression et au droit l'galit d'une librairie s'adressant particulirement une clientle gaie et lesbienne, librairie situe Vancouver. L'article s'attarde au rle jou par le Fonds d'action et d'ducation juridiques pour les femmes (le FAEJ ) dans les deux causes Butler et Little Sisters. L'auteure affirme que le FAEJ continue adopter des stratgies juridiques problmatiques, bien qu'il y ait eu des amliorations sensibles depuis l'affaire Butler. Le FAEJ a nuanc, dans une certaine mesure, ses arguments touchant la relation entre la pornographie et le prjudice, mais l'auteure soutient nanmoins que les mmoires du FAEJ dans [End Page 117] les affaires Butler et Little Sisters n'ont pas russi dstabiliser les liens entre le sexe, le genre et l'identit fonde sur la prfrence sexuelle, ni leur relation complexe avec la pornographie.
Feminism's relationship to the legal regulation of pornography represents one of the most recognizable moments of second wave feminism's engagement with the law. In Butler v. The Queen, the Supreme Court of Canada adopted the radical feminist equation of pornography with harm.2 Recently, anti-censorship feminists along with gay and lesbian advocates have argued that the Butler decision has brought about some of the most restrictive obscenity laws in the Western world.3 Others, however, have argued that "obscenity law has become more enlightened in the past decade compared to the pre-Butler situation."4 Whether or not this moment constitutes a positive engagement of feminism with the law continues to be widely debated. The answer is dependent on one's feminist perspective, one's interpretation of pornography, and one's view of the most effective legal responses to it.5
The aim of this article is to provide a brief comment on how the defining moment of the Butler decision has been opened up to contestation and complication by Little Sisters Book and Art Emporium et al. v. Canada Minister of Justice, et al.6 The owners of Little Sisters Book and Art Emporium claim that in a context of pervasive homophobia, the Butler decision has had the effect of increased targeting of marginal sexual voices by [End Page 118] police, courts, and customs officials who too quickly equate homosexuality with obscenity.7 The end result has been that access to gay and lesbian pornographic material has been limited. This targeting has led to a revisiting of the relationship between feminism, law, and pornography.
Feminist involvement in this highly publicized case about pornography and the state's relationship to it has, to some extent, been a positive moment in feminism's use of the law to further equality struggles. However, while feminist interveners have used the Little Sisters case as a site in which to dispute meanings of categories, by incorporating a more complicated and nuanced understanding of sexual identity and pornography, they have not circumvented the simultaneous reproduction of, and reliance on, an essentialist understanding of both the queer and heterosexual communities and "their" respective pornography.
Before I begin my analysis, a brief digest of a partial history of Butler and its relationship to Little Sisters is in order. In 1992, the Supreme Court of Canada rendered a decision in the Butler case. This decision dealt with whether Canadian criminal laws against obscenity were constitutional or whether they infringed upon the section 2(b) freedom of expression guarantee in the Canadian Charter of Rights and Freedoms.8 In Butler, the Women's Legal Education and Action Fund (LEAF)9 intervened on behalf of the Canadian federal government and endorsed state censorship of pornography. LEAF argued that pornography is a form of sex discrimination and that it should not be protected by section 2(b) of the Charter because it is a violent form of expression that poses a danger to all women and their equality.10 LEAF also put forth a request for the Court to abandon the conservative moral discourse that at the time framed the definition of obscenity. In its place, it proposed the adoption of a definition of obscenity that was understood to mean "harmful."11
In 2000, some eight years after the Butler decision was rendered, the Supreme Court of Canada revisited the pornography debate when it heard the Little Sisters case. Little Sisters is a Vancouver-based gay and lesbian bookstore that continues to be at the heart of a debate on the censorship [End Page 119] of its sexually explicit materials.12 At the time, nearly 90 per cent of its stock had been imported from the United States and was allegedly unduly scrutinized, detained, damaged, destroyed, lost, and prohibited en route to its destination. LEAF was once again an intervener at the Supreme Court of Canada, only this time it argued against state censorship and on behalf of the bookstore whose porn was being targeted by government customs agents. LEAF contended that "no other bookstores have been subjected to this heightened scrutiny." Moreover, it noted that the same materials were claimed to have cleared Canadian Customs, even if inspected, when they were destined for other bookstores.13 In its factum to the court, LEAF submitted that "lesbian materials, including sexually explicit materials, are important to all women and are essential to the emotional, social, sexual and political lives of lesbians."14 LEAF accused Canada's Customs Tariff15 of denying the constitutional equality and expression rights of lesbians and other disadvantaged groups.
Here, the court was asked to consider the constitutionality of a customs regime that has deemed a disproportionate amount of gay and lesbian pornography in and of itself harmful. It was requested that the court reconsider its harm based analysis of porn, as derived from Butler, in light of a social context of homophobia where the expression of gays and lesbians is suppressed in discriminatory ways. Part of the argument put forth to the court was that access to gay and lesbian pornography, unlike its heterosexual counterpart, is important because it contributes to a sense of community and identity.16
LEAF played a major role in both Butler and Little Sisters. Much has been made of this dual involvement, particularly the belief by some that LEAF was committing a so-called "about-face" in their more recent position on pornography.23 Those who believed that the success of LEAF's anti-pornography arguments in Butler were to be blamed for customs agents' disproportionate targeting of sexual minority materials felt that LEAF's position in Little Sisters was a "make-good project to lesbians and gay men."24 Nevertheless, a deconstruction of LEAF's reconstruction of porn in Little Sisters reveals that while much has changed since Butler, other more problematic legal strategies continue to be reproduced. When it comes to feminists' engagement with pornography specifically and anti-discrimination argumentation more generally, the strategy by which LEAF chose to make its arguments in Little Sisters, while acknowledging a plurality of experiences and the complexity and diversity of porn and its effects, simultaneously depends on essentialist understandings of lesbians and queer pornography that are similar in form, if not content, to its earlier position about women and heterosexual pornography in Butler.25 [End Page 121]
While both of LEAF's interventions in the pornography debate revolve around obscenity legislation they do so in different ways. The arguments posed in Butler dealt specifically with the constitutionality of obscenity laws as they existed in the Criminal Code26 as well as with the test by which "obscene" should be defined. Little Sisters, by contrast, did not ask the Court to decide on whether any specific materials are obscene, instead it asked whether the Canadian Customs regime is constitutional. LEAF did not argue that lesbian and gay materials should be exempt from the operation of obscenity law, as was argued by the appellants.27 Rather, LEAF argued that sexual orientation is a relevant factor to be considered in the harms-based analysis.28 be457b7860
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