By Zena Olijnyk for Canadian Lawyer Magazine
She has been locked up in a mental hospital as a teenager for being a lesbian, began practicing law in the seventies when there were no human rights protections for homosexuals, and has since been a huge part of the movement to eliminate legalized discrimination against the LGBTQ2SI+ community.
Now, as part of her trajectory within the legal world and her fight for queer rights, the Canadian Bar Association’s B.C. branch (CBABC) has named barbara findlay QC as the 2020 recipient of the Georges A. Goyer QC Memorial Award for Distinguished service.
findlay – more on the lack of capitalization in her name below - says she is honoured to receive the award, recognizing it is for individual achievement. “However, to me, the most important part of the award is its recognition that fighting for ostracized or marginalized communities is important to the profession.
“Although awards are individual, the work of bringing equality for lesbians and gay men, and to begin that road for trans folk, was the work of an entire movement,” she says.
“There will always be a need for lawyers who are working for people who are marginalized or excluded from the legal system or access to justice. And I’m really glad that this award signals to lawyers interested in doing that work that it is honored by the profession.”
Jennifer Brun, president of the CBABC, says “there are few lawyers as influential as barbara,” and adds that her “achievements in advancing LGBTQ2SI+ equality rights have made her both a beloved local community leader and a leading activist for social justice across Canada.
“barbara’s entire career has been dedicated to promoting LGBTQ2SI+ equality rights through written advocacy, world-first litigation, education and mentorship,” Brun says, and “is recognized for her tireless and heartfelt contributions in this area to both grassroots and international initiatives alike.
“There are few lawyers as influential as barbara. Her achievements in advancing LGBTQ2SI+ equality rights have made her both a beloved local community leader and a leading activist for social justice across Canada.”
The annual award recognizes exceptional contributions to the legal profession, the law, jurisprudence, or a significant law-related benefit for British Columbians. findlay will receive her award at a virtual ceremony on Feb. 6.
findlay has represented the queer community in several landmark cases. These include same-sex marriage and establishing the right of two lesbian mothers to both be registered on their child’s birth certificate.
She has represented a transgender woman’s right to be considered a woman in Nixon v Rape Relief; a complaint against the Knights of Columbus for refusing to rent a wedding hall to a lesbian couple; and an incarcerated transgender woman’s right to have sex reassignment surgery and to be housed in a facility for women.
The society also notes that findlay founded the CBABC Sexual Orientation and Gender Identity Community (SOGIC) section and co-founded the CBA National SOGIC federation. In BC, SOGIC is now a community of over 215 LGBTQ2SI+ lawyers, law students and judges.
findlay was called to the B.C. Bar in 1977. She worked in the Legal Services Society for over a decade, and then as an Adjunct Professor and tenure-track faculty member at the Allard School of Law at UBC. In 1992, she began work in private practice devoted to queer rights. She worked with Smith and Hughes from 1992 to 1996 and with Dahl findlay Connors from 1996 to 2001, after which she went into sole practice, specializing in LGBTQ2SI+ legal work.
“I have ended up with a very general practice because there has been so much discrimination in so many different areas of the law – real estate law, immigration law, family law, laws related to healthcare, AIDS and substitute decision making.”
It wasn’t always easy being the squeaky wheel on advocating for queer rights, findlay says, However, early on in her career, she had made a vow to herself to bring up the issue at every opportunity. Eventually, she saw that her persistence paid off in growing support.
After co-chairing a national conference on queer rights in 1992, findlay concluded there needed to be very significant reforms, noting that in B.C., a vast number of provincial laws at the time explicitly discriminated against queer partners. She also wanted to ensure that when the Supreme Court of Canada ultimately faced the question of inclusion based on sexual orientation as a protected ground, “that it would include the partnerships and families of queers.”
findlay says that the success of the strategy in Charter challenges to discriminatory practices against lesbians and gay men lay in the decision to “first approach same sex rights first by analogy to common law partners” in areas such as spousal benefits. That provided the groundwork towards more victories such as the legalization of same-sex marriage.
Marriage was considered “such a sacred cow,” findlay says, that there was concern at first in taking on the issue of same-sex marriage head-on so early in the fight for queer rights. “The argument we used was that we had no interest in overturning the institution of marriage, but we think this couple living together and that couple living together should have the same rights and privileges as a common law heterosexual couple.”
There have been victories for the LGBTQ2SI+ community, many of them attributable to findlay’s advocacy. But findlay says there are still many challenges to be dealt with - conversion therapy, the rights of trans people, and issues specifically related to members of indigenous and racialized LGBTQ2SI+ communities. Still, progress there as been progress.
“We haven’t completely succeeded in eliminating homophobia everywhere, but I can’t overstate how in my legal career, we’ve gone from “the legal wilderness to the garden of equality as it were.”
And as to why she spells her name without capital letters, findlay says it’s “not that exciting a story” but it does illustrate a point.
When she took a Master of Law degree in 1990, she had letterhead designed in lower case writing. “I liked it, so I continued to use it after returning to private practice.”
Yet, such a simple change to her name caused an uproar. Lawyers called her to say they had a vote as to why she chose that spelling, a court registry rejected an order because her name was not “properly” spelled. Even a local queer newspaper for years refused to spell her name without capital letters.
It’s not that different from the reaction to the B.C. provincial court's decision to mandate a protocol by which lawyers identify themselves by the pronouns – he/him/his, she/her/hers, or they/ them/theirs. While many B.C. lawyers support the new protocol, which started in mid-December, findlay says there has also been “some backlash from others.”
findlay says that in her simple defiance of conventional spelling, she realized she had “a perfect illustration” of negative reaction when someone moves “even a tiny bit away from a norm of behaviour,” and how many are threatened by any deviation from the ordinary.
So that spelling – barbara findlay – is here to stay.