This article was originally published in the December 2002 issue of Girlfriends Magazine.

What kind of country would confiscate lesbian erotica at the border and impound it on obscenity grounds? Some totalitarian regime in Central Africa? A fundamentalist Islamic state? Try Canada - our liberal neighbor to the north, known for welcoming conscientious objectors, providing universal health insurance, passing broad gay rights measures, and a host of other progressive accomplishments. It's strange, but true. The same country that is preparing to equalize its marriage laws within the next two years, lets its customs guards rifle through incoming queer books and videos, on the lookout for any material that meets the department's own interpretation of national obscenity laws.

One recent victim is Cherry, a novel by British author Charlotte Cooper, about the erotic adventures of a London lesbian named Ramona. Cherry is not your run-of-the-mill romantic lesbian love story. Even for an erotic book, writes 'Time Out' reviewer Ottilie Godfrey, "Cherry is chock-a-block with relentless lurid sex."

One of those sex scenes describes a fisting encounter, which reportedly pushed some customs authorities over the edge. Published last summer, the book was impounded on an arbitrary basis as it entered the country. Cherry was delivered without incident to Little Sisters Bookstore in Vancouver, but it never reached the shelves at The Bleeding Rose in Victoria, as customs seized the shipment in late September.

Over roughly the same period the risqué On Our Backs (published by the parent company of Girlfriends) encountered similar difficulties. Two issues, both of which contained references to fisting, were detained at the Canadian border. Headed from the U.S. printer to the Canadian distributor, the magazines were released weeks later, and the publisher was sent a written warning.

On Our Backs came up with a solution that reflects the inconsistency of the Canadian system. The magazine is now printed in Canada. The Canadian copies are distributed throughout the country without a problem, and the rest are exported to the United States. How is this possible? Because the abuse of the obscenity laws is entirely the handiwork of Canadian customs. Once a book or video is inside Canada, it's fine - assuming it's not a grotesque violation of the law. But if a piece of lesbian or gay erotica is on the outside trying to get in, it must pass the higher standards of the Canadian inspectors, running a gauntlet of prudery that appears to violate the national charter, and go beyond both the spirit and the letter of the criminal code.

Unlike the United States, Canada has a statutory definition of obscenity, and a weak version of the First Amendment. These two legal features have combined to support a pattern of LGBT censorship by Canadian customs, despite what many people called a major Canadian Supreme Court victory just two years ago.

In that opinion, the Court appeared to side with the plaintiffs, Little Sisters Bookstore, who had been fighting the customs department since the store opened in 1983. From the earliest days, said Little Sisters in court papers, authorities routinely inspected every international delivery to the LGBT retailer. Books were held for no apparent reason. Magazines were released long after their shelf life. Inventory was returned damaged, and material was categorized as obscene with no explanation.

According to customs procedures, officers have the right to remove "books, printed paper, drawings, paintings, prints, photographs, or representations of any kind that: "are deemed to be obscene under subsection 163(8) of the Criminal Code." The subsection of that federal law, in turn, had been interpreted by the Canadian Supreme Court in a three-part analysis in a 1992 obscenity case:

Explicit sex with violence is almost always obscene, said the Court. Explicit sex which degrades or dehumanizes the actors is obscene if it causes a "substantial risk of harm." And, notably, explicit sexual content among adults without violence or harmful degradation is presumptively not obscene.

But somewhere within these codes, policies, and legal precedents, the customs department still found a way to target lesbian and gay publications. While the most X-rated heterosexual pornography was waved through the borders, anal penetration and other same-sex sexual images were pulled aside, presumably as "degrading" or "harmful." In their lawsuit, Little Sisters argued that the gay community's erotica was being singled out in violation of the equal protection section of the Charter of Rights and Freedoms. And further, that confiscating a vast range of books and magazines breached the charter's guarantee of freedom of expression.

In what seemed like a victory, the Supreme Court rapped customs on the knuckles in its December 2000 opinion. The obscenity laws and the authority of customs were not unconstitutional, said the Court. But they were being implemented in an unconstitutional manner. The Court ruled that customs could no longer hold materials more than thirty days without proving that the materials were obscene. "For our community," said Little Sisters manager Janine Fuller at the time, the ruling "is an incredible indictment against Canadian customs." It means, she continued, "our community is moving away from the marginalization that has been historically a part of who we are, into a center of acceptance."

But that was then, and this is now.

Two years later, although Canadian customs has somewhat slowed the pace of its cat and mouse game, it's clear that the Supreme Court's ruling did not go far enough. Little Sisters was obliged to file another lawsuit last March in British Columbia court, demanding that customs authorities release copies of Meatman gay porn comics seized in July of 2001. "Despite having taken customs all the way to the Supreme Court of Canada," said the plaintiffs, "it's still business as usual at the border."

The problem is, while customs officials rely on the Supreme Court's definition of obscenity, they continue to impose their own interpretation of key terms like "degrading" and "substantial risk of harm." The fisting scene in Cherry is hot, explicit, well-written, and sexy. Is it pornographic? Maybe. Is it degrading or harmful? Not unless lesbian sex itself is seen as such.

Ann Rostow is managing editor of The Texas Triangle.