A landmark ruling from the Federal Court has unexpectedly caused us to re-evaluate our concept of families, love, and sexuality.
The decision was handed down in a recent spousal immigration case. The facts involve a heterosexual woman and a gay man, who share a child together and who are emotionally committed to one another, despite their respective sexual orientations.
The two met in university. They were close friends and confidants who developed strong romantic feelings for one another. Although he was not normally attracted to women, the couple engaged in unprotected sex on at least one occasion, resulting in the birth of their child.
Any attempt at a traditional, sexual relationship was limited by the fact that the man identifies as gay.
But in spite of their mix-orientation, the pair have conducted themselves as a family unit. They have continued to raise their child together. Even while living in different countries, they communicated regularly and shared in the financial obligations related to their child. Naturally, the man eventually wished to immigrate to Canada in order to be reunited with his loved ones.
However, when the couple applied for a spousal sponsorship, the Immigration Appeal Division rejected them on the basis that they did not meet the definition of a conjugal relationship.
According to our laws, a conjugal partner is a partner who is living outside of Canada, who has been in a conjugal relationship with their sponsor for at least one year and who could not otherwise live with their sponsor as a couple due to reasons beyond their control. Some examples of such reasons include religious beliefs and sexual orientation.
The concept of a conjugal partner has been habitually used to help reunited gay couples through immigration in this country. In countries where gay marriage is not legal, or where gay people are severely stigmatized or prosecuted, it may not be possible to live in a marriage or marriage-like relationship with a same-sex spouse. This is a difficult reality that conjugal sponsorships recognize.
In order to prove a conjugal relationship for immigration purposes, a couple must prove that there are conditions that restrict them from either marrying or living together, and that there is a significant degree of attachment and mutual interdependence between partners.
The Immigration Appeal Division found that there was no conjugal relationship in this case, citing the lack of ongoing sexual relations between the man and woman due to their mixed orientation.
The Federal Court, however, took a different view entirely.
Overturning the IAD’s decision, the court ruled that they were wrong and unreasonable in reaching their conclusion. The judge wrote that their decision was based on a “…closed mind or bias…” as well as stereotypes regarding sexual orientation and partnership.
The Federal Court very reasonably concluded that relationships are nuanced and not without difficulties. It also wrote that a loving relationship can be centered on the concept of a family, regardless of the degree of sexual intimacy—if any. Sexual relations, it wrote, are just one aspect in assessing whether there is an interwoven, meaningful relationship between two people.
This is a radical approach—and one that is long overdue.
All too often erased, it makes room for couples of fluid or mixed-sexual orientation. It validates their experiences and recognizes their legitimacy at law. This is a big step forward for many who have often felt over-looked, discriminated against or undermined altogether.
Mixed-orientation couples are not always obvious and transparent. Some enter into a heterosexual relationship, for it to later change as partners discover themselves and their sexual identities on a deeper, more authentic level.
And although unorthodox, mixed-orientation relationships are becoming more commonplace—or at least more visible. A cultural shift in attitudes towards sexual orientation has been instrumental in allowing many to open up about their nonbinary, single-orientation love lives.
A U.S.-based survey, conducted by Straight Spouse Network, estimates that approximately two million Americans who identify as straight have been or are married to people who identify as LGBT2Q. Here in Canada, public opinion polls suggest that 57 percent of Canadians are accepting towards those in mixed-orientation partnerships—a number that could certainly be improved upon in the future.
But whether you agree with mixed-orientation relationships or not, the fact remains that they exist and they are not going anywhere any time soon.
Just like single-orientation relationships, mixed-orientation relationships are full of potential. They can be diverse, fulfilling, supportive and positive. They can be sexual or sexless, or anything in between. They can develop into family and they can become the very fabric of our society.
Thankfully, our courts have now recognized this.