The “Lesbian Lawyer”: barbara findlay, K.C.

The courtroom is not where one expects to encounter a superhero. Indeed,  lawyers, even the great ones, have yet to inspire such a characterization, in fiction or in fact. Until now! barbara findlay^[1] KC, as this article will demonstrate, has earned the right to be revered as such. After all, a superhero, simply put, is a human being who uses their unique abilities to make the world a more just and humane place. While your average superhero conceals their identity, barbara is the lawyer who wields her pride in her lesbian identity as a superpower to achieve equal rights and justice for the 2SLGBTQ Community.

Illustration by Erika Flores @inkscrpt

Not a “Normal Girl”?

barbara, who describes herself as  “a fat old white cisgender queer lawyer with disabilities”, was raised working class and christian on the prairies. After high school, barbara educated herself at Queen’s University, where she pursued a Bachelor of Arts focusing on sociology. However, her true matriculation was in forbidden love and self discovery. In 1968 barbara met and fell in love with a woman - “the single most important thing” that happened in her life. At that time, Pierre Trudeau, the then Attorney General of Canada, had just passed the Criminal Law Amendment Act, 1968–69, an amendment to the Criminal Code of Canada, that partially decriminalized homosexual acts between consenting adults in private^[2]. While this amendment was lauded as "bringing the laws of the land up to contemporary society,^[3]” same sex attraction was still considered to be a mental illness — The American Psychiatric Association didn’t remove the diagnosis of “homosexuality” from the Diagnostic and Statistical Manual^[4] until 1973. Consequently, lesbian love led to barbara’s committal to a psychiatric hospital where  her psychiatrist told her that his goal was to “turn her into a normal 18 year old girl” and suggested that she change her clothes to be “more attractive.” 

This experience set barbara on a path of self discovery and ultimately self acceptance.

barbara says “I knew there was either something wrong with me, or something wrong with the world.  When I figured out there was nothing wrong with me, I knew I had to change the world.”

This was the moment that ignited the activist within barbara.

The Trilemma: Feminist, Lesbian or Lawyer?

In 1970 barbara travelled to British Columbia to pursue a Masters of Arts in Sociology at the University of British Columbia (UBC).  barbara was introduced to feminism and to the  activist  Dorothy Smith - a British born Canadian sociologist who was instrumental in establishing the Women's Studies program at UBC and barbara’s mentor.

 “It was feminism that taught me that it was possible to change the world,” says Barbara

Feminism inevitably informed barbara’s activism. She was a member of the Vancouver Women’s Health Collective^[5], an Organiser for Vancouver Abortion Rights^[6] and the founder of Alliance of Women against Racism Etc. (A.W.A.R.E.), among many other frontlines for activism.

barbara describes this period in her life as “heady times”. While her feminist identity convinced her that she could change the world and all that was wrong with it. she had to reckon with the fact that feminism didn’t necessarily welcome lesbianism:

“Some feminists worried that if it became known that there were lesbians in the group, people would assume they were all lesbian man haters”.

Therefore even in these progressive spaces barbara found herself concealing her lesbian identity. How then could she reconcile these apparently exclusive identities, to honour her feminist lesbian selves? Her answer:

“I needed some social power in order to enact change, so I decided to go to Law School”.

At that time (1973) women comprised only 4% of the legal profession. UBC’s Law School opened its doors to barbara the woman but not barbara the lesbian.

barbara and her then partner existed entirely in secret throughout her time at law school. When their parents came to visit, she and her partner constructed a second bedroom and pretended to be roommates. barbara attended social gatherings alone and used masculine pronouns when referring to her partner. According to barbara “There was safety in the invisibility” and “danger in being seen”. 

Goodbye Glass Closet!

In 1977 barbara was called to the bar of British Columbia. For the first several years, barbara was a lawyer by day and a lesbian feminist activist by night:

“I wasn’t exactly in the closet. It never occurred to anyone to consider that I might be a lesbian. I didn’t have to worry that I would be outed:  lesbians didn’t like lawyers, and lawyers hardly knew that lesbians existed.  There was essentially no overlap.  I describe that as the glass closet.”

After almost a decade with Legal Aid and two years as a professor at UBC’s Faculty of Law, barbara found herself standing on “two icebergs that were slowly drifting apart.” Realising that she could no longer live a life that was “structurally bifurcated”; “speaking queer only at night,” she decided that she had to create “a new phenomenon”.

Thus, the lesbian lawyer was activated.

The Poster Child for Queer Legal Change

In 1992 barbara entered into private practice, advertising herself as a lesbian lawyer, with a general practice for the 2SLGBTQ+ communities of British Columbia (BC).

At the same time as making a space for queer clients to have their legal needs met, barbara set out to create safe spaces within the legal community for other queer lawyers to meet (at first in secrecy) to think about queer rights. She was  founding Chair of Lesbian and Gay Rights Section in the BC branch of Canadian Bar Association^[7] (CBA) as well as the Founding Co-Chair for the CBA’s Sexual Orientation and Gender Identity Conference (SOGIC), the first group in the CBA that was not focused on a traditional area of law.

Additionally, barbara joined every one of the CBA’s and the Law Society’s equality committees and vowed to say the word ‘lesbian’, at least once, in every meeting.

In her early practice, barbara often represented lesbians leaving their husbands and lesbians seeking access to non-biological children subsequent to the breakdown of their lesbian relationships. barbara lost every single child access application that she filed on behalf of non-biological lesbian mothers. The law regarded the lesbian co-parent as a legal stranger to her child.

In 1992, recognizing that 2SLGBTQ+ individuals were invisible in the law, barbara organised a national queer rights conference, OutRights. At that conference, a caucus of queer family lawyers met to consider the existential question of whether queers wanted to be included in, what barbara asserts was then “a heterosexist, colonial and patriarchal system of family law.”

“We knew that fighting for inclusion in family law meant that we would be shoehorning ourselves and our relationships into the het-boxes that family law offered; that we would be excluding anyone whose relationships did not directly mimic (marriage excluded, of course) the monogamous model of straight families

But the caucus concluded, reluctantly, that despite its many flaws, they had to argue for the inclusion of queers in the heterosexist patriarchal family law regime, otherwise queer parents would be denied their children and vice versa.

In 1993, the Ontario Superior Court of Justice rendered a disastrous decision in Layland v Ontario (Minister of Consumer and Commercial Relations^[8] where two gay men sought the right to marry. The court held that although sexual orientation was a protected ground of discrimination under section 15 of the Charter^[9], it was not a contravention of section 15 to restrict marriage to heterosexual couples. barbara says

“Had that decision stood, it would have precluded any legal recognition of same sex partnerships or queer families. Effectively, the Court was ruling that same sex families had no protection in the law.”

According to barbara, after this decision, it was not clear whether the Supreme Court of Canada would hold that ‘sexual orientation’ was a protected ground under section 1 of the Charter. Even if it did, it was not clear whether the Court would extend the protection to same-sex relationships or only to individuals facing discrimination.

At a hastily-convened meeting in Ottawa, the then-handful of Canadian legal activists decided that, as a strategy they would not litigate for marriage equality, but instead would argue for “common law” spousal benefits and avoid what barbara describes as the “shibboleth of marriage” that had been conceived in Layland:

“After that, we argued that we had no intention of touching the sacred institution of marriage. Instead we were pointing out that our relationships were “just like” those of common law heterosexual couples and we should therefore be entitled to the benefits – pensions and the like – that common law heterosexual partners were entitled to.”

Finally, in the landmark case, Egan and Nesbitt^[10], the Supreme Court of Canada held that (1) sexual orientation is a deeply personal characteristic protected by section 15 of Charter and (2) that a denial of an Old Age spousal pension was discrimination on the basis of sexual orientation.

This case was a significant victory for queer rights as it set the course for the recognition of same sex relationships and families, including marriage, in Canada.

barbara was proud to be one of the many lawyers who litigated for marriage equality in Canada.

Making Herstory: barbara’s Legal Firsts

In her relentless fight for queer rights in Canada, barbara has achieved world-first results for several of her queer clients. In 2001, in Gill Maher Murray and Popoff v Vital Statistics Agency^[11], the BC Human Rights Tribunal (BCHRT) held that the Vancouver Vital Statistics Agency’s (VSA) practice of denying lesbians the right to be registered as co-parents  on their child’s birth certificate was discriminatory.  barbara exposed the discriminatory nature of the practice by demonstrating in cross examination that the VSA’s registered as parents any two people with apparently male and female names  without inquiry into the genetic or spousal connection between the applicants and the child.

In 2002, in Nixon v. Vancouver Rape Relief Society^[12], barbara acted for a trans woman,  Kimberley Nixon,who had been refused a volunteer opportunity by Rape Relief, a women-serving organization, because of her transgender history.  The BC Human Rights Tribunal held that Rape Relief had discriminated against Nixon on the ground of sex (protections for gender identity and gender expression did not exist until more than a decade later), and awarded her the then-highest damages award in history^[13].

barbara, who is particularly passionate about transgender rights, says that Nixon laid a strong foundation for trans rights litigation in Canada. Since then, barbara has used litigation to make significant strides in the advancement of trans rights. She brought a  human rights complaint on behalf of a trans child, which concluded with a negotiated settlement that resulted in the Vancouver Archdiocese implementing a policy that required Catholic schools to accommodate the gender identity and gender expression of trans children. The Vancouver Archdiocese was the first Catholic school board in North America to implement such a policy.

Then, in A.B. v. C.D. and E.F.,^[14] barbara and Claire Hunter KC successfully defended the right of a trans youth, A.B., to make his  own medical decision in the face of opposition from one of his birth parents. The BC Supreme Court declared that A.B. was exclusively entitled to consent to receiving gender-affirming medical treatment without parental permission.

“This case was hard-fought as a site of transphobic attack on trans youth; it involved more than 30 court appearances.” 

However, ultimately the BC Court of Appeal affirmed the right of A.B. to consent to his own medical treatment.^[15]

In 2020, she executed the first four-person polyamorous agreement, which included a married couple and three prospective parents. Hold your applause, gentle folks, you have not seen the last of barbara’s firsts.

barbara findlay KC, Superhero!

In 2001 barbara was designated King's Counsel (then known as Queen's Counsel during the reign of a female monarch), an honorary title bestowed upon lawyers to recognize superior legal ability. She is the subject of the 2016 documentary, In Particular, barbara findlay for her precedent-setting case work championing queer and trans rights. Also, she was awarded the highest honour of the B.C. Branch of the Canadian Bar Association (2021) and of the Canadian Bar Association itself (2022). 

In 2023, Simon Fraser University awarded barbara its highest honour, an Honourary Degree, in recognition of the fact that she has dedicated her life to advocating for queer and trans people, doing unlearning racism and unlearning oppression work, and community organising.

Despite these accolades, and several other awards, barbara is still in the trenches challenging societal norms in an effort to reveal and repair systemic oppression. findlay has most recently established ‘Lawyers against Transphobia’ to fight against the tsunami of transphobia directed at trans children in schools.

In light of the above, one can reasonably conclude that not all superheros wear capes, barbara findlay KC is living proof that they could also don white bands and  black robes.

That said, barbara maintains that she is not a superhero.  She says the work was there to be done, and she was privileged to be among the many people who did the work to create equality for queer and trans people, and to fight against racism.

About the Author

Tamara J. Sylvester (one/they/them) is a lawyer working in the Human Rights Services Office at Toronto Metropolitan University. In addition to conducting investigations into human rights and sexual violence complaints at the University, in the context of employment and higher education, one consults on human rights issues in the employment. One is also a member of the OBA’s SOGIC Executive.  (tjsylvester@torontomu.ca)