LGBTQ rights in Canada

Canada has provided more legal rights for LGBT people than many other liberal nations.

Timeline

The court case of Everett George Klippert caused much discussion of homosexuality among Canadians. In 1965 Everett George Klippert was interrogated by the police as part of an arson investigation in the Northwest Territories. Klippert was arrested after admitting that he had had sex with other men. When psychiatrists determined that he was unlikely to stop having sex with men, he was declared a dangerous offender and sentenced to life in prison. Maclean's, Canada's popular newsweekly, then printed an article sympathetic to homosexuals. This led to increasing calls to reform Canada's law on homosexuality. Klippert was released in 1971.

Homosexuality was decriminalized in Canada as a result of legislation (Bill C-150) introduced in 1967 by then-Justice Minister and Attorney General of Canada, Pierre Trudeau (who later became the 16th Prime Minister of Canada). He famously commented, "There's no place for the state in the bedrooms of the nation."

In 1971 Canada's first gay rights march took place in Ottawa. The Body Politic, Canada's first gay liberation newspaper, was published in Toronto and continued for about 15 years.

In 1975 and 1976, there were large scale protests after the police raided gay establishments in Quebec and in Ottawa in preparation for the 1976 Olympics.

In 1977, Quebec became the first jurisdiction (larger than a city or county) in the world to prohibit discrimination based on "sexual orientation" in the public and private sectors. The Quebec Charter of Human Rights and Freedoms prohibits discrimination in employment, housing and certain services and other activities, but it does not apply to federally regulated activities.

In 1978, the Canadian Immigration Act was amended, removing a ban on homosexuals as immigrants.

In 1981, a major bathhouse raid occurred in Toronto, so outraging the gay community that an estimated 3000 people poured into the streets of Toronto to protest the raid. Infrequent bathhouse raids continue to occur to this day. Laws from the 1800s known as "bawdy house laws" are still listed in the Criminal Code of Canada; police use these laws to lay charges, and use liquor violation laws as grounds to enter the premises.

In 1982, Canada patriated its Constitution, to which it added the Canadian Charter of Rights and Freedoms. Section 15 of the Charter, which guarantees equality "before and under the law" and the "right to the equal protection and equal benefit of the law without discrimination" does not explicitly list sexual orientation, but was designed to permit the addition of new grounds by the courts. In 1995, the Supreme Court of Canada ruled that "sexual orientation" should be 'read in' to Section 15.

In the 1980s, several attempts were made to add "sexual orientation" into the federal government's Human Rights Act, an amendment that did not take place until 1996.

In 1986, sexual orientation was added to the Ontario Human Rights Code as a prohibited ground for discrimination. Like most other human rights acts in Canada, this act prohibits discrimination in employment, housing, services and certain other activities in the public and private sectors, but it does not apply to federally regulated activities.

In 1987, sexual orientation was added to the Manitoba Human Rights Act, and included in the newly adopted Yukon Human Rights Act.

In 1988, New Democratic Party Member of Parliament (MP) Svend Robinson became the first MP to come out, declaring that he is gay to the media outside the House of Commons. In the same year, the United Church of Canada became the first church in Canada to allow the ordination of gays and lesbians.

In 1991, sexual orientation was added to the Nova Scotia Human Rights Act.

In 1992, then-Justice Minister and Attorney General of Canada, Kim Campbell (who later became Canada's first female prime minister) announced that Canada was lifting its ban on homosexuals in the military, allowing them to serve openly and live on-base with their partners. Canada was one of the first countries to allow this. Sexual orientation was added to the human rights laws of New Brunswick and British Columbia.

In 1993, sexual orientation was added to the Saskatchewan Human Rights Act.

In 1994, the Supreme Court ruled that gays and lesbians could apply for refugee status based on their sexual orientation.

In 1995, the Supreme Court of Canada ruled in Egan v. Canada that "sexual orientation" should be 'read in' to Section 15 of the Canadian Charter of Rights and Freedoms, a part of the constitution. The ruling had a wide impact since section 15 applies to all laws, including human rights acts that prohibit discrimination by all employers, landlords, service providers and governments. A court in Ontario ruled that gay and lesbian couples wishing to adopt jointly should be allowed to do so, making Ontario the first province to allow this. Currently, nearly all provinces allow gay and lesbian couples (and single gays and lesbians) to adopt children. The Newfoundland Human Rights Act was amended to include sexual orientation.

In 1996, sexual orientation was added to the Canadian Human Rights Act, an anti-discrimination law that applies to federally regulated activities throughout Canada.

In 1998, the Supreme Court of Canada decided in the Vriend v. Alberta case in 1998 that section 15 of the Canadian Charter, as interpreted in Egan v. Canada, required that the Alberta human rights law be read and applied as if the words "sexual orientation" were included. Glen Murray was elected Mayor of Winnipeg becoming the first openly gay Mayor of a large North American city. The Prince Edward Island Human Rights Act was amended to include sexual orientation.

In 1999, gays and lesbians scored a major victory when the Supreme Court of Canada ruled that gay and lesbian couples should have the same rights as heterosexual common-law couples. In June 1999, a 216-55 vote in the House of Commons supported the preserving legal definition of "marriage" as union of a man and a woman. Sexual orientation is included in the newly adopted Nunavut Human Rights Act.

In April 2000, the federal Liberal government responded to the 1999 Supreme Court decision by passing a bill (C-23) which amended 68 federal statutes, including pension benefits, bankruptcy protection, income taxes, old age security, and immigration, among others, to grant equal rights to homosexual common-law couples.

In 2000, the Canadian Supreme Court ruled that gay publications, even those that were sexually explicit were protected by the freedom of speech and expression clauses in the Canadian Charter of Rights and Freedoms. This ended a common police practice of seizing gay publications for being obscene.

In 2001, NDP MP Libby Davies publicly acknowledged she had a female partner, becoming the country's first (and so far only) openly lesbian Member of Parliament.

In 2002, sexual orientation and gender identity were included in the Northwest Territories Human Rights Act.

In 2003, the British Columbia Court of Appeal made a unanimous decision that limiting the definition of marriage to heterosexual couples violated equality rights. The ruling was not effective immediately, but allowed a two year transition period for Ottawa to legally recognize same-sex marriage. In June, the Ontario Court of Appeal upheld the decision of a lower court to allow same-sex marriage.

In May 2004, the House of Commons and the Senate passed Bill C-250, which added "sexual orientation" to the "hate propaganda" section of the Criminal Code, thus making it illegal for people to propagate hate based on sexual orientation. This did not include clergymen however.

In July 2004, Scott Brison, who had previously run for the leadership of the Progressive Conservative Party of Canada was appointed Minister of Public Works and Government Services by Liberal Prime Minister Paul Martin, becoming Canada's first openly gay cabinet member.

In December 2004, the Supreme Court of Canada replied to the federal government's draft legislation that would legalize gay marriage nationwide. The Court ruled that the federal government has the exclusive authority to define marriage, that same-sex marriage was constitutional and was far from violating it, in fact "it flowed from" it, and that religious officials can't be forced to perform gay weddings. The Court refused to answer whether or not the traditional definition of marriage was consistent with the Charter.

On June 28th, 2005, by a vote of 158-133, the House of Commons passed Bill C-38, the Civil Marriage Act and on July 19th, 2005, by a vote of 47-21, the Senate gave its approval to the bill.

On July 20th, 2005, C-38 received royal assent from Chief Justice of The Supreme Court of Canada, Beverley McLachlin, acting in her role as deputy governor general. Canada has become the fourth country to officially sanction gay marriage nationwide, behind Belgium, The Netherlands, and Spain. Same-sex marriages began in Ontario and British Columbia in 2003, with other provinces following via court challenges. The Ontario Court of Appeal ordered a religious same-sex marriage that was performed in 2001, legally valid.

As of 2005, all provinces (except Alberta) and territories have included "sexual orientation" in their human rights laws, and the Northwest Territories include "gender identity" in theirs. While the Alberta law had still not been amended in 2005, the Supreme Court of Canada had decided in the Vriend v. Alberta case in 1998 that section 15 of the Canadian Charter required that the Alberta law be read and applied as if the words "sexual orientation" were included.

Constitutional framework

File:Charter.jpg

The Charter, signed by Prime Minister Pierre Trudeau in 1981.

Enforcement mechanism

The rights of LGBT Canadians are now nearly as well protected as those of other Canadians largely due to several court decisions decided under Section 15 of the Canadian Charter of Rights and Freedoms that was included in the Constitution of Canada in 1982, with Section 15 coming into effect in 1985.

Some of the cases were funded under the federal government's Court Challenges Program, which in 1985 was expanded to fund test cases challenging federal legislation in relation to the equality rights guaranteed by the Charter. There has also been some funding to challenge provincial laws under a variety of programs, but its availability has varied considerably from province to province.

Equality rights

The Constitution of Canada does not explicitly grant or deny any right to LGBT people, and Section 15 of the Charter prohibits the main types of discrimination to which LGBT Canadians may be subject. Section 15(1) reads:

"Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."

Section 15 was written so as to protect against discrimination generally, with the "enumerated" grounds of prohibited discrimination (race, sex, etc.) being only examples instead of a comprehensive list. In 1995, in Egan v. Canada, the Supreme Court of Canada recognized that sexual orientation was implicitly included in section 15 as an "analogous ground."

The grounds "sex" and "physical disability," have been interpreted to include transsexuality and HIV/AIDS (see discussion below).

Section 15 applies to all laws and law enforcement (including government programs defined by laws) by all governments in Canada, but the Charter does not give rights against the private sector. For example, a discrimination complaint against a restaurant would need to be filed under a human rights act, not the Charter.

Exceptions

The entire Charter is also subject to a general exception in section 1 that allows "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The Oakes Test sets out the Supreme Court of Canada's interpretation of this exception. This analysis may consider conflicting Charter rights. For example, the right to equality based on sexual orientation under section 15 may be limited by the freedom of religion under section 2, and vice versa. It may also be limited by the right to denominational (religious) schools under section 93 of the Constitution.

In addition, section 15 and a few other Charter sections are subject to the "notwithstanding clause" of the Charter that allows governments to declare that a law is exempt from the Charter for up to five years, which exemption may be renewed any number of times. In 2000, Alberta amended its Marriage Act to define marriage as being between a man and a woman. The law included a notwithstanding clause, but the amendment was nevertheless invalid since the capacity to marry is a matter of exclusive federal jurisdiction according to the constitution. The notwithstanding clause can only be used to make exceptions to the Charter; it cannot change the federal division of powers. In any case, the five year exemption period expired in 2005.

The notwithstanding clause has never been used by the federal government; it is generally believed that this is because it would constitute a politically embarrassing admission that the law in question violated human rights. On December 15, 2005, before his party formed the new government, Prime Minister Stephen Harper stated that his government would resubmit the same-sex marriage issue to Parliament without relying on the notwithstanding clause, but his Justice Minister, Vic Toews, has stated in the past that he supported the use of the notwithstanding clause in some cases.

Freedom from discrimination in employment, housing and public services

"March of Hearts" rally for same-sex marriage in Canada on Parliament Hill in Ottawa, March 6, 2004

Enforcement mechanism

The federal government and every province and territory in Canada has a human rights act that prohibits discrimination and harassment on several grounds (e.g. race, sex, religion) in private and public sector employment, housing, public services and publicity. Some acts also apply to additional activities. Human rights acts are quasi-constitutional laws that override ordinary laws as well as regulations, contracts and collective agreements. They are typically enforced by human rights commissions and tribunals through a complaint investigation, conciliation and arbitration process that is slow, but free, and includes protection against retaliation. A lawyer is not required.

Grounds of prohibited discrimination

In 1977, the Quebec Charter of Rights and Freedoms, which is both a charter of rights and a human rights act, was amended to prohibit discrimination based on sexual orientation. Thus, the province of Quebec became the first jurisdiction in the world larger than a city or county to prohibit sexual orientation discrimination in the private and public sectors. Today, "sexual orientation" is explicitly mentioned as a ground of prohibited discrimination in the human rights acts of all jurisdictions except Alberta, where, as a result of the Vriend case, the act must nevertheless be read and applied as if "sexual orientation" were mentioned.

The Yukon Human Rights Act defines "sexual orientation" as "heterosexual, homosexual and bisexual and refers only to consenting adults acting within the law.". Sexual orientation is not defined in any other human rights act, but is widely interpreted as meaning heterosexuality, homosexuality and bisexuality. It does not include transsexuality or transgendered people. The Federal Court of Canada has stated that sexual orientation "is a precise legal concept that deals specifically with an individual's preference in terms of gender" in sexual relationships, and is not vague or overly broad. The Ontario Human Rights Commission has adopted the following definition:

"Sexual orientation is more than simply a 'status' that an individual possesses; it is an immutable personal characteristic that forms part of an individual’s core identity. Sexual orientation encompasses the range of human sexuality from gay and lesbian to bisexual and heterosexual orientations."

All human rights laws in Canada also explicitly prohibit discrimination based on disability, which has been interpreted to include AIDS, ARC and being HIV positive, and membership in a high-risk group for HIV infection.

All Canadian human rights laws probably also prohibit discrimination against pre-operative, transitioning and post-operative transsexual persons, though the protection is explicit only in the Northwest Territories, where "gender identity" is explicitly listed as a ground in the human rights act. In Manitoba, transsexual persons are likely protected by the Human Rights Code under the enumerated grounds "sex" or "gender-determined characteristics" or as an unenumerated ground "gender identity" under section 9(1)(a) of the Code. In addition, human rights commissions consider that sex discrimination includes discrimination based on transsexuality at the federal level and in Quebec, and discrimination based on transgenderism generally (including transsexuality) in British Columbia and Ontario.

"Gender identity" is not defined in any human rights act, but the Ontario Human Rights Commission has defined it as follows:

Gender identity is linked to an individual’s intrinsic sense of self and, particularly the sense of being male or female. Gender identity may or may not conform to a person's birth assigned sex. The personal characteristics that are associated with gender identity include self-image, physical and biological appearance, expression, behaviour and conduct, as they relate to gender.

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Individuals whose birth-assigned sex does not conform to their gender identity include transsexuals, transgenderists, intersexed persons and cross-dressers. A person’s gender identity is fundamentally different from and not determinative of their sexual orientation.

While it is probable that discrimination based on transsexuality is prohibited throughout Canada, it is unclear whether discrimination against other transgendered persons is prohibited. There is no case-law stating that it is a form of sex discrimination (as of February 2006), but there is jurisprudence that it is not a form of "sexual orientation" discrimination. The human rights commissions of British Columbia and Ontarioconsider that sex discrimination includes discrimination against transgendered persons generally.

In 2005, NDP MP Bill Siksay introduced a bill in the House of Commons to explicitly add gender identity and expression as prohibited grounds of discrimination in the Canadian Human Rights Act. He reintroduced the bill in 2006.

Activities where equality guaranteed

Accordingly, discrimination, including harassment, based on real or perceived sexual orientation or HIV/AIDS (and probably transsexuality and possibly transgenderism) is prohibited throughout Canada in private and public sector employment, housing, services provided to the public and publicity. All aspects of employment are covered, including benefits for spouses and long-term partners. Examples of services include credit, insurance, government programs, hotels and schools open to the public. Schools open to the public are liable for anti-gay name-calling and bullying by students or staff. LGB Canadians have been allowed to serve in the military since the Douglas case was settled in 1992.

Prohibited discrimination occurs not only when someone is treated less favorably or is harassed based on a prohibited ground, but also when a uniform policy or practice has a perhaps unintended disproportionately adverse effect based on the ground. This is called "adverse effect discrimination." For example, it might in theory be discriminatory for schools open to the public to require parental consent for student participation in all school clubs, assuming that students are less likely to ask for or get permission to participate in Gay-Straight Alliance clubs.

Exceptions

Human rights acts have no exceptions specifically for sexual orientation or gender identity, except in Saskatchewan, where owners who reside in one unit of a duplex may discriminate on the basis of sex and sexual orientation with respect to the tenants of the other unit, and in the Yukon, where the protection against sexual orientation discrimination only applies to "consenting adults acting within the law.". To the extent that the Yukon wording means that minors are not protected against anti-gay discrimination, its constitutionality is dubious as it appears to be inconsistent with the Vriend case and the prohibition of age discrimination in section 15 of the Charter.

However, human rights acts typically include an exception for "bona fide requirements" or qualifications that applies to most grounds (e.g. sex, sexual orientation, disability), but only when the stringent requirements of the Meiorin Test are met.

Since, human rights acts are quasi-constitutional laws, it is not possible for job applicants or unions, for example, to sign away equality rights. However, other laws may explicitly say that they apply notwithstanding a human rights act.

Results

Despite these protections, discrimination against LGBT people is fairly common in Canada. Yet complaints based on sexual orientation represent a small proportion of the complaints filed under human rights acts. This is believed to be because LGBT Canadians disproportionately avoid filing human rights complaints since the complaint process would tend to further disclose their sexual orientation and thus expose them to further discrimination. Most LGBT Canadians avoid discrimination by remaining entirely or partly closeted.

Schools and other educational institutions

Some schools have Gay-Straight Alliances or similar groups to counter homophobia and bullying and provide support for LGBT students in school.

The rights of LGBT students and staff in an educational institution vary considerably depending on whether the institution is religious and/or open to the public, since human rights acts do not prohibit discrimination against pupils of private schools and the Charter does not prohibit discrimination by churches, associations and businesses, while section 2 of the Charter protects freedom of religion and section 93 of the Constitution recognizes the right to denominational schools in certain cases.

The curricula of public schools, particularly in BC, are now being amended to incorporate LGBT topics.

Religious educational institutions may in many cases discriminate based on sexual orientation against students and staff according to religious doctrine. Nevertheless, if they rent facilities to the general public on a commercial basis without regard to their religion, they may not refuse to rent them to LGBT groups

However, most educational institutions, including privately-owned schools open to the general public, are public services. They are subject to human rights acts and are strictly required to not discriminate against staff or students based on all the prohibited grounds, including sexual orientation, HIV/AIDS (and probably transsexuality and possibly transgenderism, see Grounds of prohibited discrimination above). They are strictly liable for harassment, name-calling and bullying of students and staff by staff on these grounds. In addition, as a result of the Jubran decision, they are liable for most such behaviour by students. They may be liable for anti-gay bullying even if the victim is not gay, nor believed to be (e.g. when a bully knowingly makes a false claim that a girl is a lesbian so that she will be ostracized or bullied by others or pressured to have sex with a boy to prove otherwise).

Furthermore, it may not be enough for schools to progressively discipline bullies when this is ineffective. Schools are responsible for providing an educational environment that is free from discriminatory harassment, and this may require them to provide "resources to adopt a broader, educative approach to deal with the difficult issues of harassment, homophobia and discrimination." The Supreme Court of Canada declined to hear an appeal from the Jubran decision, thus adding to its authoritativeness.

Public education governance bodies may place limits on the freedom of expression and the freedom of religion rights of teachers and school counsellors with respect to statements they may make regarding LGBT issues, both on and off the job. Teachers and school counsellors are considered to hold positions of trust and influence over young people and are required to ensure that their public statements do not impair public confidence in the school system or create an unwelcoming or intolerant school environment .

Exceptions

There are no legal exceptions that limit the rights of LGBT students specifically, except that the Yukon Human Rights Act defines sexual orientation in a way that excludes minors from protection. The constitutionality of this wording is dubious (see discussion above).

Results

As of 2006, few schools in Canada have implemented the Jubran requirements, and anti-gay bullying and name-calling by students is very common. Anti-gay insults such as "faggot," "queer", "homo" and "gay" are generally considered to be the most offensive and hurtful of all insults. Among youths, the use of the word "gay" has been extended so that it means inferior, worthless, effeminate or stupid in general; it does not necessarily mean homosexual. The rate of suicide and depression among LGBT youths is exceptionally high, especially when they first come out to themselves, have little support or are subject to bullying and ostracism. To counter homophobia and bullying in school and to provide support to LGBT students, students in some schools have set up Gay-Straight Alliance or similar groups, sometimes with support from teachers associations.

Same-sex marriage

Michael Hendricks (right) and René Leboeuf were married in Montreal in 2004

Main article: Same-sex marriage in Canada

Between 2002 and 2005, courts in several provinces and one territory ruled that restricting marriage to opposite-sex couples constitutes a form of discrimination that is prohibited by Section 15 of the Charter of Rights and Freedoms, and struck down the federal definition, requiring that those jurisdictions register same-sex marriages. The first ruling required the federal government to draft legislation recognizing same-sex marriage, but later rulings brought the new definition into effect immediately in the jurisdictions concerned. Canadian jurisdictions thereby became the third in the world to allow same-sex marriage, after the Netherlands and Belgium.

By July 2005, same-sex marriages were legally recognized in all provinces and territories except Alberta, Prince Edward Island, Northwest Territories and Nunavut, encompassing over 85% of Canada's population of roughly 29 million people. (See Same-sex marriage in Canada.)

The federal government announced in the summer of 2003 that it would not appeal the decisions, and would draft legislation to allow same-sex marriages across the country. The bill was put before the Supreme Court of Canada to ensure that it would withstand a Charter challenge by those who oppose same-sex marriage. The Supreme Court heard arguments on the draft legislation in October of 2004. The bill was passed by Parliament in July 2005 making Canada the fourth country to legalize same-sex marriage nationwide, and the first to do so without a residency requirement. (See Civil Marriage Act)

LGBT influence on national politics

In the House of Commons, three parties support LGBT rights with varying degrees. The New Democratic Party and Bloc Québécois are the most vocal supporters of these rights, and the Liberal Party of Canada is divided in its approach to the issue, but it mainly advocates equal rights for LGBT citizens. The Conservative Party of Canada is largely opposed to LGBT rights, although some members, typically former members of the Progressive Conservative Party, have supported LGBT rights, including same-sex marriage. Former members of the Canadian Alliance have generally opposed expanded LGBT rights, and some former CA MPs who are now Conservative MPs have been rebuked for calls to re-criminalize homosexuality.

Svend Robinson is notable for having been the first MP to come out as a homosexual, in spring 1988. He has since been followed by other gay and lesbian politicians in Parliament: fellow New Democrats Libby Davies and Bill Siksay, Bloc Québécois MPs Réal Ménard and Raymond Gravel, and Liberal Party of Canada MPs Scott Brison and Mario Silva, as well as Senators Laurier LaPierre and Nancy Ruth. The New Democratic Party's shadow cabinet contains a critic for LGBT rights, the only spokesperson so designated in the House; this position is currently held by Bill Siksay.

There are currently five members of the House of Commons and one senator who openly identify as gay or lesbian. There is one former MP and one retired senator who openly identify as such.

Chris Lea, leader of the Green Party of Canada from 1990 to 1996, was the first openly gay political party leader in Canada. Svend Robinson became in 1995 the first out gay candidate for the leadership of a political party with representation in the House of Commons, although he was not successful. André Boisclair, the leader of the Parti Québécois, became the first openly gay leader of a party with parliamentary representation in North America; Allison Brewer, former leader of the New Brunswick New Democratic Party, was also elected leader as an out lesbian.

The provinces of Ontario (George Smitherman), British Columbia (Tim Stevenson, Lorne Mayencourt), and Manitoba (Jim Rondeau) have had openly gay provincial cabinet ministers.

See also

• Same-sex marriage in Canada
• Canadian Lesbian and Gay Archives
• Egale Canada
• Fruit machine
• Changing legal gender assignment in Canada

External links

• Gay and Lesbian Emergence: Out in Canada - CBC Archives