EGALE is an organization committed to securing equality rights at the federal level for lesbians, gays and bisexuals.
The purpose of this report is simply to provide a brief overview on some current legal issues of relevance to lesbian, gay and bisexual equality.
In Haig & Birch v Canada, the Ontario Court of Appeal ruled that the Federal Human Rights Act violates the Canadian Charter of Rights and Freedoms since it fails to accord equal protection on the ground of sexual orientation. Rather than strike the legislation down, however, the Court ruled that the Act should be extended to prohibit discrimination on the ground of sexual orientation. The Federal Government has not appealed the ruling, and the appeal period has now expired. What this means is that at long last, lesbians, gays and bisexuals who have been discriminated against by federal actions will be able to lay a complaint with the Canadian Human Rights Commission. This long-awaited victory has been soured for many, however, by the public announcement of the Minister of Justice Kim Campbell that she will not be amending the Human Rights Act to bring it into conformity with the Court ruling. The Minister of Justice’s press releases on this issue are attached as Annex I. Although technically, it is not necessary to amend the Act since the court decision “read in” the ground of sexual orientation, with no amendment it means the Act will be forever silent on the issue of lesbian, gay and bisexual equality.
Moreover, the Court decision is not binding outside of Ontario, and as the Minister of Justice freely acknowledges (see Annex I), this means that the issue may have to be relitigated elsewhere.
Finally, the Minister of Justice has indicated that the Government will not take steps to ensure that lesbian, gay and bisexual relationships and spousal rights will be protected; she has announced that the Government will be leaving this issue up to the Courts. Whether the Courts will accord our relationships equal treatment and respect remains to be seen.
EGALE has written to the Minister of Justice expressing our concern at her position. A copy of that letter is attached as Annex II.
Finally the armed forces have rescinded their homophobic policies. On the morning of trial, the military accepted that its policies discriminate against lesbians, gays and bisexuals, and settled the claim being brought against them by Michelle Douglas. A term of the settlement was that they accept a court order declaring their policies in violation of the Charter. A copy of the court order in the Douglas case is attached as Annex II.
Immigration Canada also appears to accept that its spousal sponsorship provisions violate the equality rights of lesbians, gays and bisexuals, but the policy itself has yet to be changed. A recent court action was brought in Vancouver, but shortly before trial the immigration authorities accorded the non-Canadian lesbian applicant status as an ‘independent’, not as a ‘spouse’. Because she is now able to enter the country, the Court case has been largely undermined. The discriminatory policy remains in effect, and no other couples will be able to claim spousal status until it is amended.
The court case continues, and we have yet to receive further details.
Perhaps the most exciting case currently before the courts, Layland & Beaulne v Canada is set down to be heard at the end of November. When Pierre Beaulne and Todd Layland sought to get married, the Provincial Government refused to accept their application. The only reason was because they are gay. Now Todd and Pierre are going to Court, alleging that this denial constitutes a clear violation of their Charter right to equality on the ground of sexual orientation.
Of course, not all lesbians and gays wish to get married. But many of us feel that whether we choose to get married or not, it should be our choice, not a decision imposed upon us by the State because it views our relationships as inferior.
Marriage represents perhaps the key societal institution which has historically stigmatized lesbian and gay relationships as having lesser social worth. While access to marriage does not automatically mean that we will get all the material benefits associated with marriage, it will be an important step in the right direction.
It is an exciting prospect to think that, if we win this case, children who are being born today will never have known a time when lesbians and gays couldn’t get married. For future generations, the non-recognition of our relationships will be a part of history, similar to the days when women were denied the vote.
Judging by the newspaper report, there is a surprising level of support for lesbian and gay marriage. This is also consistent with trends overseas and the demands of lesbians and gays elsewhere for full social equality, including the right to marry. How can the State even pretend to recognize us as equal unless it also accepts our relationships as equal? Various press comments, articles and overseas statements are attached as Annex IV.
The military and immigration cases illustrate a disturbing trend on the part of the Federal Government to refuse to accord any recognition to lesbian, gay and bisexual equality rights until threatened with court action. They then concede the case at the last instant, in such a way as to allow us the least recognition possible. Even when we are successful, as in Haig & Birch the Government appears to have no commitment to taking action to secure our rights. Moreover, the government is fighting recognition of our spousal rights in such cases as Layland & Beaulne tooth and nail. When will they accept that we are equal citizens and entitled simply to equality? Never, if the Government’s “leave it to the Courts” approach prevails.
Egale Canada ©2007