As Prime Minister Justin Trudeau this fall contemplates lowering the age of consent for anal sex (read: gay sex) from 18 to 16, matching that of heterosexuals, it is timely to reflect on where we have come from, to get here.
Calgarian, Everett Klippert‘s sensational Supreme Court case in 1967, paved the way for decriminalizing homosexuality for two consenting adults aged 21 years or older. The law came into effect in the summer of 1969.
On January 15th, 1981 the Calgary Herald reported on then Federal Justice Minister Jean Chretien’s bill to reduce the age of consent for homosexual acts from 21 to 18, as well as make legal “daisy chain”sex, or sex with more than one consenting adult.
The Body Politic, Canada’s gay liberation newspaper soon cheekily reported: “Gay sex, orgies to be legal at 18 if Criminal Code changes pass.” Unfortunately the Bill never makes it through and was withdrawn by Chretien in 1982 due to organized pressure from police chiefs, social conservatives and an organized letter writing campaign from the 10,000-member strong, US-based, Family and Freedom Foundation.
The age of consent for gay sex was eventually dropped to 18 in 1987, and came into effect in 1988 as did sex with more than one consenting adult (not in public). Several legal minds noted that the difference in ages of consent between anal and vaginal sex (then aged 14) was discriminatory. The Justice Minister at the time, Raymond Hnatyshyn, argued AIDS prevention was one of the justifications for the age difference in consent.
In 1995, the Ontario Court of Appeal upheld a lower court ruling that Canada’s higher age of consent for anal sex unconstitutionally discriminated against gay men and violated the Canadian Charter of Rights. Quebec, then Alberta, then BC, then Nova Scotia courts made similar rulings; the Federal Government contemplated appealing those decisions but never did. Consequently, although it is a theoretical crime for two 17-year olds to engage in anal sex, law enforcement currently chooses not to police it.
Trudeau’s lowering the age of consent for gay sex is part of a larger apology to the LGBTQ community for historic wrongs that Canada’s state institutions inflicted upon us in previous decades. It also aligns the Federal criminal code with the Provincial Court rulings of the past 20 years. Although changing the law to match the enforcement does not seem very dramatic, a new generation of social conservatives are sounding the alarm and using an old trope – gay panic – as a fundraising tool.
Decidedly not panicked here, we at the Calgary Gay History Project are looking forward to the changes.