There was just one issue: He’s gay.
For many — including several immigration officials who heard his case — that might disqualify the couple from the process. But in a groundbreaking decision on their case late last month, Canada’s federal court ruled that the pair, an unidentified couple known in court documents only as AP and AM, can meet the legal definition of a “conjugal relationship,” a government designation for unmarried couples.
Canadian legal advocates and lawyers are now cheering the ruling as a major victory for the rights of what many have called “mixed-orientation couples,” with some saying it validates experiences that have long been pushed to the margins of the law.
“Societally, we’re so used to sex as the defining aspect of a relationship,” the couple’s lawyer, Athena Portokalidis, told The Washington Post. “But if a definition would fit for an opposite-sex that has been married for 50 years, why can’t a same-sex couple or a mixed-orientation couple have it, too?”
The ruling hinges on a particular part of the Canadian immigration and family law systems, which both tend to be more progressive and inclusive than their U.S. equivalents.
But it nonetheless casts a light on a family arrangement that is present — if equally unacknowledged — south of the border. The Straight Spouse Network, a Chicago-based organization that focuses exclusively on supporting the heterosexual partners in such marriages, estimates that there may be as many as 2 million such couples in the United States, Vice reported in 2014.
Indeed, Portokalidis said the idea of mixed-orientation couples is nothing new: Any bisexual person dating or married to someone who is attracted to only one gender is in a mixed-orientation relationship. So is someone in a heterosexual marriage in which one spouse has just come out.
Yet, the idea of two adults entering into a partnership without some kind of sexual or romantic bond nonetheless challenges many conventional beliefs around what makes a partnership. It is on this logic that a lower court rejected AP and AM’s spousal sponsorship application.
But in her Sept. 17 decision granting them an appeal, Justice Janet M. Fuhrer said Canada’s Immigration Appeal Division had acted with a “reliance on stereotypes” in rejecting their case.
“The IAD’s decision was based on a closed mind or bias,” Fuhrer wrote, “resulting in an unreasonable assessment of the evidence.”
Rather than considering the details at hand about their partnership, she added that the lower court “focused exclusively” on “predetermined conclusions about the ability of mixed-orientation couples to engage in sexual relations.”
According to court documents, AP was granted asylum in Canada because he had been persecuted in his home country because of his sexual orientation. (That country is not specified in court documents, and Portokalidis declined to name it to protect her client’s privacy.)
At that point, he reconnected with AM online. They went on vacation together about seven years ago and engaged in unprotected sex. She told him she was pregnant in January 2014.
From then on, with AP in Canada, they decided to raise the baby together despite the borders separating them. They went on two more trips: once during AM’s pregnancy, and again once their child was 2 years old. The pair talks regularly over Skype, Portokalidis said, and — with AM’s applications for a visa having twice been rejected — AP sends money to support AM and their child.
Under Canadian law, a conjugal relationship is a way of recognizing the bond between unmarried cohabitants, Nicholas Bala, a law professor at Queen’s University in Ontario, told The Post. The concept can be used in the Canadian immigration system to reunite gay couples coming from countries where their sexual orientation is frowned upon or illegal.
Bala said that the ruling does not change or expand the definition. To meet the definition, a couple must prove that they rely on each other and maintain some degree of intimacy but do not necessarily need to be sexually intimate.
Yet in June 2019 when deciding on AP and AM’s case, immigration officials said they were not persuaded “a homosexual man and a heterosexual woman are able to meet the sexual component of conjugal partnership.”
When the pair appealed their case, they were again rejected by the IAD. AM did not know enough about AP’s prior relationships, the court said, and AP did not come out to AM until after their child was born — all signs that they did not maintain the kind of close, intimate communication necessary for a conjugal partnership.
But Portokalidis, who pointed to the Netflix series “Grace and Frankie” as an example of mixed-orientation partnerships, said she hopes the decision can create greater visibility for a group of people who are often unacknowledged.
“Hopefully, it gives couples the support or the affirmation that they might need to see that their form of relationship is recognized in the law,” she said.