Federalism, courts and LGBTQ policy in Canada

Abstract

This chapter explores arguments about the causal relationships between the state architectures of federalism and LGBTQ social movements by focusing on the intersection between federalism and the role of courts in activism and policy-making. I identify three dynamics on the diffusion of LGBTQ rights policies across federal and provincial jurisdictions: 1) cases in which litigation led to the diffusion of common policies across jurisdictions; 2) cases in which the litigation stalled and lack of political will led to policy stagnation; and 3) cases in which litigation outcomes did not produce policy consistency across the provinces because of the way in which provinces exercised their jurisdiction. For each of these dynamics, several illustrative cases are identified. The analysis shows the importance of litigation in conditioning the effect of federalism as well as the importance of the partisan commitments of governments in facilitating policy change.