August, 2002

The State of the Play

A SUMMARY OF LESBIAN, GAY, BISEXUAL AND TRANSGENDERED RIGHTS IN EACH JURISDICTION OF CANADA

Over the years, there have been increasing changes in the state of lesbian, gay, bisexual, and transgendered equality rights across Canada. The following review provides a brief summary of these various legal and legislative developments in each jurisdiction of the country, and an overview of where things stand today.

Federal

In 1969, following Prime Minister Pierre Trudeau’s famous comment that “there is no place for the State in the bedrooms of the nation,” Bill C-150 was passed which made amendments to the Criminal Code. These changes decriminalised “gross indecency” and “buggery,” if committed in private between two consenting adults over the age of twenty-one. The Criminal Code was further amended in subsequent years.

Currently, s. 159 of the Criminal Code sets the age of consent for anal sex at 18, four years higher than that for other forms of sexual activity. The higher age of consent for anal sex has been recognized as unconstitutional by both the Ontario Court of Appeal in Re Carmen M and the Quebec Court of Appeal in R v. Roy.

In 1952, provisions were added to the Immigration Act, barring “homosexuals” or “persons living on the avails of homosexualism” from immigrating to Canada. Lesbian, gay and bisexual immigrants already living in Canada could be deported. These provisions were repealed in 1977.

In 1992, the federal government removed the prohibition on lesbians, gays and bisexuals serving in the military, as a result of a court challenge in Douglas v. Canada.

In Canada (Attorney General) v. Mossop, a federal public service worker who had been denied bereavement leave under his collective agreement to attend the funeral of his same-sex partner’s father argued that he had been discriminated against on the basis of “family status” under the Canadian Human Rights Act. By a 4-3 majority, the Supreme Court of Canada dismissed Mossop’s claim in 1993, in part because Parliament had not intended that sexual orientation should be encompassed by the term “family status.” The Supreme Court decision did not, however, deal with the question of whether same-sex relationships were protected by the ground “sexual orientation,” which at that time was not included in the Act.

In 1995, the federal government amended the Criminal Code to provide increased penalties for crimes motivated by hatred on certain grounds, including sexual orientation. As a result, hate crimes such as lesbian and gay-bashings will now receive more severe penalties. Transgendered people however, are not explicitly covered by these provisions. These amendments apply only to sentencing; the substantive “hate propaganda” provisions in the Criminal Code prohibit promoting hatred or genocide against certain groups, but the list of groups does not include lesbians, gays, bisexuals or transgendered people.

In May 1995, the Supreme Court of Canada ruled on a case involving Jim Egan and Jack Nesbit, two gay men who sued the federal government for the right to claim a spousal pension under the Old Age Security Act. All nine judges agreed that sexual orientation is a ground of discrimination protected under the s.15 equality guarantees of the Canadian Charter of Rights and Freedoms. A majority of the Court (five judges out of nine) also ruled that it is discriminatory and a breach of the equality guarantees to deny same-sex couples a benefit available to opposite-sex couples. However, the Court ultimately ruled against Egan and Nesbit by a narrow majority, since four judges held that the discrimination was justifiable and a fifth felt that the discrimination was justified for the time being, and that Parliament should be given some time to gradually bring its laws into conformity with the Charter. As a result, the decision represented a significant step forward, but left a number of issues unresolved.

In 1996, the federal government amended the Canadian Human Rights Act to explicitly prohibit discrimination based on sexual orientation. Despite a recommendation by the Canadian Human Rights Act Review Panel in June 2000, no action has been taken to include explicit protection for transgendered people in the Canadian Human Rights Act.

In June of 1996, the federal government complied with a directive from a Human Rights Tribunal in Moore & Akerstrom v. Canada and extended many same-sex benefits to federal employees, including health and relocation benefits.

On April 23, 1998 in CUPE & Rosenberg v. Canada, the Ontario Court of Appeal ruled unanimously that the definition of “spouse” in the Income Tax Act must be extended to permit the registration of pension plans which extend equal pension benefits to those in same-sex relationships. The Government of Canada did not appeal this decision.

On September 14, 1999 Bill C-78 received Royal Assent. This Bill amended the Public Service Superannuation Act to extend survivor benefits to same-sex couples. Throughout the Act, the term “surviving spouse” was replaced with the gender-neutral term “survivor,” and the words “of the opposite sex” were removed.

On June 29, 2000, Bill C-23, an Act to Modernize Benefits and Obligations, received Royal Assent. This omnibus legislation amended sixty-eight federal statutes to provide common-law relationships—both opposite-sex and same-sex—with nearly all the rights and responsibilities of heterosexual married couples under federal law. An interpretation clause was added by the government, however, which defines marriage as “the lawful union of one man and one woman to the exclusion of all others.” A class action lawsuit has been launched on behalf of lesbians, gays and bisexuals who are being denied survivors’ benefits because their same-sex partner died before the date specified in Bill C-23.

In December 2000, the Supreme Court of Canada issued its decision in the case of Little Sisters Book and Art Emporium v. Canada. The community bookstore Little Sisters had initiated the Court action to challenge the systematic targeting by Canada Customs of lesbian, gay, bisexual and transgendered bookstores and materials. In 1996, as the case came on for hearing before the B.C. Supreme Court, Canada Customs reversed its policy that any depiction of anal sex, even in safe sex materials, was automatically considered “obscene”. The Supreme Court of Canada reaffirmed the lower Court rulings that Canada Customs discriminates against lesbian, gay, bisexual and transgendered bookstores and materials, and held that while Customs is still permitted to seize material at the border, the burden of proving obscenity now rests with the Crown as opposed to the community bookstores or other importers of allegedly obscene material.

In Statistics Canada’s 2001 Census, distributed on May 15, Canadians were asked for the first time whether they were “living with a common-law partner,” which was defined to include both opposite and same-sex partners. The Census further provided that “children of a common-law partner should be considered sons and daughters”. No question was asked about Canadians’ sexual orientation, nor was the opportunity provided for respondents to identify as transgendered.

The same-sex partner of a lesbian, gay, bisexual or transgendered Canadian is now eligible to immigrate to Canada. Until recently, same-sex couples were not recognized under the family class, which provides heterosexuals with an automatic right to sponsor an opposite-sex spouse or fiancé(e) to immigrate to Canada. Instead, same-sex partners could only be admitted on a case-by-case basis on humanitarian and compassionate grounds. This resulted in a lack of transparency and arbitrary decision-making, as well as denying same-sex couples access to a number of rights and protections afforded under the family class, such as a right of appeal and exemption from provisions excluding those whose health status might place excessive demand on Canada’s health care system.

A new Immigration and Refugee Protection Act, Bill C-11, was introduced in February 2001, and received Royal Assent on November 1, 2001. This Bill constituted the first comprehensive reform of immigration and refugee legislation in over twenty years. Section 12(1) of the new Act recognizes “common law partners,” including same-sex partners, as members of the family class for the first time. The definition of “common law partner” is set out in new immigration regulations, which came into effect on June 28, 2002. “Common law partner” is defined in the regulations as someone with whom you have been cohabiting in a conjugal relationship for at least a year. Egale and LEGIT (the Lesbian and Gay Immigration Task Force) made submissions to the government that the cohabitation requirement is unworkable in the immigration context , since couples are often unable to live together precisely because their immigration status has not yet been approved. In the final version of the regulations, an additional definition of “conjugal partner” was added, which requires a conjugal relationship of one year, but without the cohabitation requirement. This definition only applies when the applicant lives outside of Canada.

Lesbians, gays and bisexuals with a well-founded fear of persecution based on sexual orientation have been recognized as eligible to immigrate to Canada as refugees. Measures requiring mandatory HIV testing of prospective immigrants were implemented by the Canadian government in early 2002.

Currently, there are equal marriage challenges before the Courts in British Columbia, Ontario and Quebec. Although the cases have been initiated in various provinces, the federal government is involved in each case, since it is the federal government which, under the Constitution, has jurisdiction over who can marry.

In B.C., two legal applications for same-sex marriage were joined and heard together—one brought by Egale and five B.C. couples and one brought by a further three B.C. couples. A third legal application had been brought by the B.C. Government, which initially supported the right of same-sex couples to marry. The provincial government withdrew its application on the first day of the hearing, however, having changed its position following a provincial election. In July-August, 2001, the cases were heard by the B.C. Supreme Court. Judge Pitfield issued his decision on October 2, 2001, ruling that the exclusion of same-sex couples from marriage infringes equality rights under section 15 of the Charter, but that this discrimination was justified to preserve the heterosexual definition of marriage. He added that not even Parliament could legislate to recognize same-sex marriage without a constitutional amendment. Judge Pitfield’s decision has been appealed to the B.C. Court of Appeal.

In Ontario, a court application was filed on behalf of eight same-sex couples who were denied the equal right to marry by the Ontario government. The Metropolitan Community Church of Toronto also joined the court challenge, after the province refused to register the marriages of two couples which took place on January 14, 2001, employing the tradition of publication of marriage banns in accordance with Ontario’s Marriage Act. The Ontario cases were heard on November 5-9, 2001. On July 12, 2002, the Court unanimously ruled that denying same-sex couples the equal right to marry is unconstitutional. The federal government has appealed the decision to the Ontario Court of Appeal, while simultaneously referring the question of same-sex marriage to a Parliamentary Committee for public hearings.

In Quebec, a lawsuit, was filed on September 14, 1998 by Michael Hendricks and René LeBoeuf. A decision is pending in the Quebec case, following a hearing by the Cour supérieure du Québec from November 8-16, 2001. A further day of hearing took place on March 22, to discuss the impact on marriage of new Quebec civil union legislation. The Quebec case also challenges Bill S-4, a federal statute which applies only in Quebec, and which defines marriage as the union of a man and a woman. La Coalition québécoise pour la reconnaissance des conjoints et conjointes de même sexe is intervening in support of the case.

Alberta

In 1991, Kings College dismissed gay employee Delwin Vriend, claiming that his continued employment violated their religious policy against homosexuality. Vriend launched a legal challenge to have “sexual orientation” read into the Alberta Individual Rights Protection Act. He was successful before the Alberta Court of Queen’s Bench, but this decision was overturned by the Alberta Court of Appeal in 1996, which ruled that the Alberta government was entitled to exclude lesbians, gays and bisexuals from the scope of human rights protection. On April 2, 1998, the Supreme Court of Canada unanimously overturned the appeal court judgment, ruling that ‘sexual orientation’ must be read into Alberta’s human rights statute. The Alberta government announced that it would abide by the decision, thereby ensuring that discrimination against lesbians, gays and bisexuals is prohibited.

In 1999, the Alberta government amended its legislation to permit lesbians, gays and bisexuals to adopt the child of a same-sex partner (“step-parent” adoption) and a Court affirmed in Re A (Adoption) that same-sex partners are recognized as step-parents under adoption law.

As an Alberta MLA, former leader of the federal Opposition Stockwell Day opposed allowing lesbians, gays and bisexuals to foster children; he opposed a grant for a lesbian, gay and bisexual history exhibit, and he unsuccessfully advocated the use of the constitutional “notwithstanding” clause to deny lesbians, gays and bisexuals human rights protection following the Supreme Court decision in Vriend v. Alberta.

On March 23, 2000, Alberta enacted Bill 202, which declares that it is designed to maintain marriage “in its purity,” and explicitly restricts marriage to opposite-sex couples only. Bill 202 also invokes the constitutional “notwithstanding” clause, in an effort to block the courts from reviewing its constitutional validity. This is the first time in Canada that the “notwithstanding” clause has been used to restrict the rights of lesbians, gays and bisexuals. It is doubtful, however, that Alberta has authority to enact Bill 202, since questions of who can marry are commonly considered to be matters of federal jurisdiction only.

On April 2, 2001, in the case of Johnson v. Sand, an Edmonton Court declared the Intestate Succession Act—Alberta’s estate law—unconstitutional because it does not give same-sex couples the same right to inherit the estate of a deceased partner as is it gives to heterosexuals.

On May 7, 2002, the Alberta government introduced two Bills, Bill 29 and Bill 30, creating a new category of “adult interdependent relationships”. Bill 29 deals with inheritance rights, and came into effect on May 14, 2002. Bill 30, which has not yet been enacted, would allow any two adults living in an interdependent relationship to register it, and would amend laws relating to a variety of matters such as support, property rights and decision-making.

British Columbia

In 1992, British Columbia amended its human rights legislation to include sexual orientation as a prohibited ground of discrimination.

In 1992, the government of British Columbia extended workplace benefits to same-sex partners of government employees.

In 1996, the new Adoption Act came into force, which enabled same-sex couples to apply to adopt as couples for the first time in Canada. Previously each partner could only apply to adopt as an individual.

In 1997, the B.C. government amended the definition of “spouse” in the Family Relations Act and the Family Maintenance Enforcement Act to accord to same-sex couples the same custody, maintenance and support rights and responsibilities as those accorded to heterosexual couples, and to allow same-sex couples to register agreements relating to cohabitation and property division.

Since 1997, B.C. has been considering adding “gender identity” to its human rights legislation to explicitly protect transgendered people from discrimination, but no action has been taken in this regard.

In 1998, the Medical Services Commission included sex reassignment surgery as an insured service under the provincial health plan, subject to the requirements of the Clark Institute of Psychiatry in Toronto. The Commission subsequently changed its decision to instead require a recommendation from the University of British Columbia Centre for Sexuality, Gender Identity and Reproductive Health. Services that fall into the category of cosmetic surgery are not included in coverage.

In July 1998, British Columbia became the first Canadian jurisdiction to legislate pension benefits for the same-sex partners of the province’s public sector employees, including at the municipal level. Extended medical and dental benefits were already available to same-sex partners of these employees.

As of July 28, 2000 the Health Care (Consent) and Care Facility (Admission) Act enables lesbians, gays and bisexuals to make medical decisions on behalf of a same-sex partner who is incapacitated.

In September 2000, the B.C. Court of Appeal issued its decision in the case of Chamberlain et al v. Surrey School Board. In April 1997, the Surrey School Board passed resolutions banning the use of three otherwise age-appropriate books (Belinda’s Bouquet, Asha’s Mums and One Dad, Two Dads, Brown Dad, Blue Dads), because they depicted same-sex parents. In December 1998, the British Columbia Supreme Court ruled that the anti-gay resolutions were based on religious precepts and therefore violated the provisions of the B.C. Schools Act. The Court of Appeal upheld an appeal by the Surrey School Board—but only because it felt that the School Board resolution did not prevent the use of the books in the classroom if the teacher, in his or her professional judgment, felt that the books advanced the goals of the curriculum. The case is now on appeal to the Supreme Court of Canada.

Under the Definition of Spouse Amendment Act, 1999 and the Definition of Spouse Amendment Act, 2000, twenty-three amendments to various acts came into force on July 31, 2000. The remaining twenty-seven amendments came into effect on November 1, 2000. These amendments standardized the definition of spouse to include a “person who has lived and cohabitated with another person, for a period of at least 2 years before the other person’s death, in a marriage-like relationship, including a marriage-like relationship between persons of the same gender.” The expanded definition of spouse ensures that same-sex couples are treated equally with opposite-sex couples in areas such as wills, estates, inheritance, home owner grants, property transfer tax, conflict of interest provisions, and criminal injury compensation. For example, the amendments cover the right to inherit if a partner dies without a will, the right to sue for wrongful death, and the right to be consulted about disposing of a partner’s body. The amendments also standardize existing provisions that already included same-sex spouses, such as the Medicare Protection Act, the Adult Guardianship Act, and the Health Care (Consent) and Care Facility (Admission) Act.

On May 17, 2001, the Supreme Court of Canada released its decision in the case of B.C. College of Teachers v. Trinity Western University. The case concerned a decision by the B.C. College of Teachers not to approve a public school teacher training program by a private Evangelical University which requires students to sign a document condemning homosexual conduct. In upholding an order that Trinity Western’s teaching program be approved, the Supreme Court of Canada ruled that graduates from the University are entitled to hold “sexist, racist or homophobic beliefs”—but are not entitled to act upon them.

On January 17, 2002, in Nixon v. Vancouver Rape Relief Society, the B.C. Human Rights Tribunal held that a women’s shelter had discriminated against a male-to-female transsexual by denying her the opportunity to act as a volunteer counsellor. The Tribunal affirmed that transgendered people are protected from discrimination by the ground “sex” in human rights legislation.

On April 8, 2002, in Jubran v. Board of Trustees, the B.C. Human Rights Tribunal found a school board liable for failing to take adequate steps to protect a student who had been continually harassed because he was perceived to be gay. This decision affirms the responsibility of school boards to ensure that the safety and dignity of lesbian, gay, bisexual and transgendered students are respected.

On May 30, 2002, the Government of British Columbia introduced Bill 53, which would abolish the B.C. Human Rights Commission. Individuals would still be able to bring discrimination complaints directly before the B.C. Human Rights Tribunal, but a number of important functions of the Commission will be lost, including the ability to advance research and education programs and address systemic discrimination.

Manitoba

In 1974, Chris Vogel and Richard North were married in the Unitarian Church in Winnipeg. Though the marriage complied with provincial regulations regarding proclamation of marriage banns, the province refused to register the marriage. Vogel and North took the province to court, but the court ruled that the common law defines marriage as the union of one man and one woman.

Manitoba included “sexual orientation” in its human rights legislation as a prohibited ground of discrimination in 1987.

In 1995, the Manitoba Court of Appeal ruled in Vogel v. Manitoba that it is discriminatory for the government to deny equal workplace benefits to its lesbian, gay and bisexual employees, and sent the case back to a human rights adjudicator for reconsideration. On November 24, 1997, the adjudicator affirmed that equal benefits should be extended to lesbian, gay and bisexual employees, and the Manitoba government announced that it would accept the adjudicator’s ruling.

Ten Manitoba statutes were amended on July 6, 2001, to extend rights and responsibilities to same-sex couples in areas such as superannuation, dependants’ relief, family maintenance, survivor’s benefits, pension benefits, and workers’ compensation. The Manitoba government, however, excluded a number of other statutes, such as those dealing with adoption rights, inheritance, property division and conflict of interest. A Review Panel on Common Law Relationships was set up to hold consultations and to make recommendations regarding what other amendments may be required to bring Manitoba’s laws into conformity with the Charter. Among other things, the Panel recommended in December 2001 that adoption laws be extended to include same-sex couples.

On June 6, 2002, Bill 34, the Charter Compliance Act, was introduced, amending some 56 statutes to provide equal treatment for same-sex partners in a variety of areas. Amongst other things, Bill 34 allows for joint adoption by common law couples, both same-sex and opposite-sex, enables same-sex partners to make health care and medical decisions in the event of incapacity, enables a person in a same-sex relationship to take their partner’s name, and provides for equal responsibilities under conflict of interest legislation. Bill 34 received Royal Assent and came into effect on August 1, 2002.

A further package of amendments was introduced with Bill 53 on July 17, 2002. This Bill provides for matters such as equal property division upon relationship breakdown and inheritance rights for same-sex partners whose partner dies without a will. It also enables same-sex partners to obtain immediate recognition by registering their relationship, rather than having to wait up to three years, which under many laws in Manitoba is the usual period required in order to be recognized at common law. Bill 53 received Royal Assent on August 9, 2002, but has not yet been proclaimed in force.

New Brunswick

New Brunswick amended its human rights legislation to prohibit sexual orientation discrimination in 1992. The government of New Brunswick has extended workplace benefits to lesbian, gay and bisexual provincial employees.

In November 2000, the government of New Brunswick enacted Bill 26, An Act to Amend the Family Services Act, which amends family law legislation to extend the spousal support provisions of the Act to those in same-sex relationships. No further action has been taken to bring New Brunswick’s laws into conformity with the Charter.

A lesbian couple is currently bringing legal action to challenge New Brunswick adoption laws, which do not yet permit same-sex adoption.

Newfoundland

In 1995, a Newfoundland court ruled in Newfoundland (Human Rights Commission) v. Newfoundland (Minister of Employment and Labour Relations) that “sexual orientation” must be read into the Newfoundland Human Rights Act. On December 9, 1997, the Government of Newfoundland affirmed this decision by amending the legislation to prohibit sexual orientation discrimination.

On December 14, 1999, amendments to Newfoundland’s adoption legislation, enabling same-sex couples to adopt, received Royal Assent—the new law has still not been proclaimed in force, however.

Nova Scotia

Nova Scotia amended its human rights legislation to prohibit sexual orientation discrimination in 1991. The Nova Scotia government has extended workplace benefits to lesbian, gay and bisexual provincial employees.

In 1995, Wilson Hodder filed a complaint with the Nova Scotia Human Rights Commission arguing that the civil service pension plan should provide him with the same pension benefits that a heterosexual widow or widower would expect to receive. In 1998, prior to the Hodder hearing, the government of Nova Scotia announced that it would extend equal pension benefits to those in same-sex relationships.

On November 30, 2000 Bill 75 received Royal Assent. Bill 75 amended pension legislation and the Family Maintenance Act to include a definition of common-law partner that applies regardless of the sex of the partners as long as they have lived together for three years. Bill 75 also made several amendments to the provincial Income Tax Act to ensure that common-law partners are included in the legislation. In addition, Bill 75 created a system of registered domestic partnerships under the Vital Statistics Act, which allows couples to register as domestic partners. As a result, the legal rights and obligations provided under several statutes, including the Intestate Succession Act, the Health Act, the Maintenance and Custody Act and the Matrimonial Property Act, apply to the partners and outline the process for dividing assets should the partnership dissolve. Bill 75 entered into force on June 4, 2001.

On June 28, 2001, Judge Gass of the Supreme Court of Nova Scotia (Family Division) ruled in S.C.M. & N.C.J. that adoption laws must be extended to permit same-sex couples to adopt jointly.

Northwest Territories

Sexual orientation discrimination is not yet prohibited by the Northwest Territories, although proposed human rights legislation (Bill 1) which would include sexual orientation as a prohibited ground is currently under consideration.

The government of the Northwest Territories has extended equal workplace benefits to lesbian, gay and bisexual government employees.

On February 27, 2002, Bill 5, An Act to amend the Adoption Act and the Family Law Act, was introduced in the Legislative Assembly. This Bill extends the definition of “spouse” to include same-sex couples for the purposes of adoption, spousal support, division of property and orders respecting the family home. This Bill received Royal Assent on June 19, 2002.

Nunavut

When Nunavut was formed as a territory in 1999, the laws of the Northwest Territories were adopted. Human rights legislation in Nunavut does not yet prohibit sexual orientation discrimination, although lesbians, gays and bisexuals working in areas of federal jurisdiction are protected by the Canadian Human Rights Act. The government of Nunavut has extended equal workplace benefits to government employees.

Ontario

In 1986, “sexual orientation” was added to the Ontario Human Rights Code as a prohibited ground of discrimination, although “sexual orientation” was not added to the provisions prohibiting harassment.

The Human Rights Code contained an “opposite-sex” definition of “marital status,” although this was ruled unconstitutional by a human rights tribunal in the Leshner case in 1992. As a result of the Leshner decision, the Ontario government extended equal workplace benefits to lesbians, gays and bisexuals, including a separate pension plan for same-sex couples.

On May 17, 1994, Ontario Attorney General Marion Boyd introduced Bill 167 that would have provided same-sex couples with rights and obligations equal to opposite-sex common law couples. The proposed legislation would have amended the definition of “spouse” in 79 statutes; however, the Bill was defeated by a vote of 68 to 59 on second reading on June 9, 1994. Two main factors led to the Bill’s defeat: the NDP government allowed a free vote on the legislation and Liberal leader Lyn McLeod, who had previously pledged her support for the legislation in a letter to the Premier, whipped her caucus to vote against the Bill when it was introduced. The defeat resulted in demonstrations outside the legislature and elsewhere. Police and security guards were sent in to contain the demonstrations, wearing rubber gloves.

The Substitute Decisions Act and Consent to Treatment Act were amended on March 26, 1996 to permit lesbians, gays and bisexuals to make medical decisions on behalf of a same-sex partner who is incapacitated.

In M. v. H. & Ontario in May 1999, the Supreme Court of Canada, by an 8-1 majority, declared the opposite-sex definition of “spouse” in Ontario’s Family Law Act unconstitutional under the Canadian Charter of Rights and Freedoms. Prior to this ruling, same-sex partners were precluded from applying for spousal support upon breakdown of a relationship. The M v. H decision was the first time that the Court has found a law to be unconstitutional for failing to recognize same-sex couples equally.

In November 1999, the Ontario Government enacted Bill 5, Amendments Because of the Supreme Court of Canada Decision in M. v. H., 1999. Bill 5 amended a number of provincial statutes to give same-sex couples most of the rights and obligations of opposite-sex common-law couples. Bill 5 did not address laws which apply only to legally married couples, such as inheritance legislation or property division upon breakdown of a spousal relationship. In those laws amended by Bill 5, the Ontario government did not amend the definition of “spouse” but instead created a “separate but equal” category of “same-sex partner.” Bill 5 also makes the distinction between heterosexual “families” and same-sex “households.” Same-sex couples are still not included in the definition of “marital status” in the Human Rights Code, but the new ground of “same-sex partnership status” was instead added to the Code.

Bill 5 does not mention same-sex couples explicitly within adoption legislation, although it allows adoption “by any other individuals that the court may allow, having regard to the best interests of the child.” In 1995, an Ontario Court ruled in Re K that the definition of “spouse” in provincial adoption legislation must be extended to permit same-sex partners to adopt their partner’s children.

A transsexual woman, Michelle Josef, has launched an action against the Ontario Government to challenge its decision to cut funding for sex reassignment surgery. Michelle Josef has been living as a woman for several years, and was half-way through the process of obtaining a series of medical interventions to legally change her sex to female, when, without explanation or warning, the Ontario government withdrew funding for sex reassignment surgery. Unable to complete the process, Michelle’s legal action seeks to have funding for sex reassignment surgery reinstated for all transsexuals.

By a series of policy guidelines, the Ontario Human Rights Commission has affirmed that it considers transgendered people protected from discrimination on the ground “sex”.

On December 5-7, 2001, the Ontario Court of Justice heard the case of Brockie v. Brillinger & the Canadian Lesbian and Gay Archives. The case involves a commercial printer (Brockie and Imaging Excellence) who refused to print business cards and letterhead for the Canadian Lesbian and Gay Archives claiming that he finds homosexuality “detestable” and that providing service to a lesbian and gay organization would offend his religious principles. An Ontario Human Rights tribunal had ruled that Brockie’s actions discriminated on the ground of sexual orientation, and Brockie appealed to the Ontario Court. A decision is awaited.

In February, 2002, Ontario judge Peter Hryn excluded evidence obtained by police during a raid on a lesbian bathhouse night, saying that the intrusion into an intimate women’s space of uniformed male police officers violated the women’s right to privacy. The judge likened the raid to a strip search, denouncing the police actions as humiliating and degrading, and calling the violation of the women’s Charter rights flagrant and outrageous. With the evidence excluded, the charges against the organizers were withdrawn by the Crown.

On April 8, 2002, the Durham Catholic School Board, which is publicly-funded, rejected the appeal of gay student Marc Hall that he be permitted to attend his high school prom with his same-sex partner. Supported by a coalition of organizations, Marc Hall has initiated legal action seeking the right to be treated equally with heterosexual students.

In response to an Ontario court decision in favour of same-sex marriage on July 12, 2002, Premier Ernie Eves expressed a willingness to recognize same-sex marriage, although the Court decision has now been appealed by the federal government.

Prince Edward Island

The human rights legislation of Prince Edward Island was amended to prohibit sexual orientation discrimination in 1998. At the same time, however, the government of PEI introduced an “opposite sex” definition of “marital status” into the legislation.

Quebec

Quebec was the first jurisdiction in Canada to prohibit sexual orientation discrimination in 1977.

Until 1996, article 137 of the Quebec Charte des droits permitted discrimination on the ground of sexual orientation in certain areas such as insurance and pension plans. This provision was repealed by Bill 133 in June of 1996.

In June 1999, Bill 32, la Loi modifiant diverses dispositions legislatives concernant les conjoints de fait was passed and the definition of “spouse” was changed in 39 laws and regulations to treat same-sex spouses equally with opposite-sex common law-spouses. Bill 32 amended laws including those relating to workers’ compensation, insurance, occupational health and safety and social assistance. The legislation did not amend the Code civil du Québec, which governs family-related matters such as spousal support and adoption.

Until recently, article 365 of the Quebec Civil Code explicitly restricted marriage to opposite-sex couples only. The constitutionality of this provision was challenged in the case of Hendricks & LeBoeuf v. Quebec. The Hendricks case also challenges Bill S-4, a federal statute which applies only in Quebec, and which defines marriage as the union of a man and a woman.

Following extensive public consultations, the Quebec National Assembly introduced Bill 84 on April 25, 2002. This far-reaching Bill accords the rights and responsibilities of married couples to same-sex and opposite-sex unmarried couples who enter into a civil union. Rights extended include parental rights, adoption, spousal support and inheritance. The Bill also repeals the opposite-sex definition of marriage in art. 365 of the Civil Code (although same-sex marriage remains prohibited by federal law). On June 7, 2002, Bill 84 was unanimously adopted by the Quebec National Assembly.

Saskatchewan

Saskatchewan included “sexual orientation” in its human rights legislation as a prohibited ground on discrimination in 1993. The government of Saskatchewan extended equal workplace benefits to lesbian, gay and bisexual government employees in 1998.

Saskatchewan’s Health Plan provides limited coverage for sex reassignment surgery.

On July 6, 2001, omnibus Saskatchewan legislation to extend marital rights and responsibilities to same-sex couples received Royal Assent. The Miscellaneous Statutes (Domestic Relations) Amendment Acts amended the definition of “spouse” in some 24 provincial statutes to treat same-sex couples equally with opposite-sex married couples, in areas including adoption, spousal support, inheritance rights, pensions, survivor benefits, and matrimonial property.

Yukon Territory

The Yukon Territory amended its human rights legislation to prohibit sexual orientation discrimination in 1987. The government of the Yukon Territory has extended equal workplace benefits to lesbian, gay and bisexual government employees. Other Yukon legislation does not yet accord equal family law rights and responsibilities to lesbians, gays, bisexuals and transgendered people.

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