Fighting the "Incremental" Approach

CAN WE LEAVE LESBIAN & GAY EQUALITY UP TO THE GOVERNMENT?

In the case of Egan v. Canada, five of the nine Supreme Court justices considered that the restriction of spousal allowance benefits to heterosexual couples constituted discrimination on the basis of sexual orientation. These five judges did not constitute the majority in the result, however, since Justice Sopinka accepted the argument under s.1 that the federal government was entitled to take time to recognize incrementally new social policy issues. In particular, Sopinka J. commented:

"The Attorney General of Canada has taken the position in his factum that ‘the means chosen does not have to be necessarily the solution for all time. Rather, there may always be a possibility that more acceptable arrangements can be worked out over time.’

Viewed in this light, the impugned legislation can be regarded as a substantial step in an incremental approach to include all those who are shown to be in serious need of financial assistance ...

It may be suggested that the time has expired for the government to proceed to extend the benefits to same-sex couples and that it cannot justify a delay since 1975 to include same-sex couples....

Given the fact that equating same-sex couples with heterosexual spouses, either married or common law, is still generally regarded as a novel concept, I am not prepared to say that by its inaction to date the government has disentitled itself to rely on s.1 of the Charter."

Since the release of this decision, the federal government has argued on at least two occasions (Rosenberg & CUPE v. Canada; Moore & Akerstrom v. Treasury Board et al.) that notwithstanding discrimination against same-sex couples, the Courts and tribunals should effectively look the other way, leaving it up to the government to redress the situation over time.

EGALE believes that this is not a credible position: after ten years of promises, Parliament cannot even amend the Canadian Human Rights Act to include sexual orientation, and has never given us a commitment to recognize same-sex relationships. It is clear to us that the government is simply trying to avoid for as long as possible its responsibility to provide lesbians and gays with equality.

In Moore & Akerstrom v. Treasury Board et al., EGALE’s Executive Director was called as a witness by the Canadian Human Rights Commission to document the many years of broken promises by the federal government and its lack of commitment to same-sex relationship recognition. We attach a copy of the brief that EGALE submitted in that hearing. We hope you find it useful.

EGALE Brief in Moore & Akerstrom

Egale Canada ©2011

Canada's LGBT human rights organization: advancing equality, diversity, education, and justice.