LGBT rights in Canada

Lesbian, gay, bisexual, and transgender (LGBT) rights in Canada are some of the most advanced in the Americas and in the world. During the British North American era, same-sex sexual activity between men was a capital crime and resulted in the death penalty, however, there is no surviving record of any executions and political figures were reluctant to enforce the law.^[1] The death penalty was eventually repealed and a broader law involving gross indecency between men was often enforced in the late-19th century.^[2] During the early to mid 20th-century, the law often portrayed homosexual men as sex offenders until the infamous court case of Everett George Klippert, who admitted to having sex with multiple men, resulted in his life imprisonment. Same-sex sexual activity between consenting adults was soon decriminalized in 1969 as a result of legislation introduced in 1967, with then-Justice Minister and Attorney General of Canada Pierre Trudeau (who eventually became the 15th Prime Minister of Canada) famously commenting, "There's no place for the state in the bedrooms of the nation."^[3]

Although same-sex couples began being granted domestic partnerships similar to that of married opposite-sex couples, same-sex marriage was already legalized in eight of ten provinces and one of three territories beginning in 2003. On July 20, 2005, Canada became the first country outside Europe and the fourth country in the world to legalize same-sex marriage nationwide after the enactment of the Civil Marriage Act. Same-sex adoption has also been legal in all provinces and territories under varying rules. Discrimination on the basis of sexual orientation in employment, housing, and public and private accommodations is banned nationwide whilst discrimination on the basis of gender identity and expression vary by province and territory. Transgender people are allowed to change their legal gender in all provinces and territories under varying rules. The age of consent for anal sex is currently unequal at 18 for both homosexuals and heterosexuals whilst oral sex remains at 16, which has been found discriminatory by many political figures and publications.^[4]

Canada has frequently been referred to as one of the most gay-friendly countries in the world, with Canada's largest cities Toronto, Montreal, Vancouver and Ottawa featuring their own gay villages and being named among the most gay-friendly cities in the world.^[5] Recent polls have indicated that a large majority of Canadians support same-sex marriage.^[6]

Timeline

Constitutional framework

Enforcement mechanism

The rights of LGBT Canadians are now 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,^[7] 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.^[8]

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 a landmark ruling in 1995 in the case of Egan v. Canada, the Supreme Court of Canada recognized that sexual orientation was implicitly included in section 15 as an "analogous ground" and is therefore a prohibited ground of discrimination.

The grounds "sex" and "physical disability," have been interpreted to include transsexuality^[9] 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 federal or provincial anti-discrimination legislation and 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^[10] 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.^[11] 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 first-appointed Minister of Justice, Vic Toews, publicly stated that he supported the use of the notwithstanding clause in some cases.^[12] In spite of Stephen Harper's statements, his government has not attempted to re-open the issue of same-sex marriage. "On Dec. 7, 2006, members of the House of Commons voted down a Conservative motion to reopen the debate on the definition of marriage. The motion called on the government "to introduce legislation to restore the traditional definition of marriage without affecting civil unions and while respecting existing same-sex marriages."^[13]

Section 159 of the Criminal Code criminalizes every act of anal intercourse, but provides exceptions for a husband and wife, and any two persons 18 years of age or older. These exceptions do not apply if a third person is present, or if the anal intercourse takes place anywhere but in private.^[14] However, courts in Ontario,^[15] Quebec,^[16] and Alberta^[17] have independently declared s. 159 to be unconstitutional as violations of the equality provision of the Canadian Charter of Rights and Freedoms.

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 enacted human rights acts that prohibit 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. These acts are quasi-constitutional laws that override ordinary laws as well as regulations, contracts and collective agreements.^[18] 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 for prohibiting 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 in Canada.

The Yukon Human Rights Act defines sexual orientation as "heterosexual, homosexual and bisexual and refers only to consenting adults acting within the law."^[19] 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 transgender people.^[20] 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.^[21] 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.^[22]

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.^[9]

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, Ontario, Manitoba, Nova Scotia, Newfoundland and Labrador, Saskatchewan,^[23] Prince Edward Island and Alberta where "gender identity" is explicitly listed as a ground in their human rights acts.^{[24][25][26][27][28][29]}

In addition, human rights commissions consider that sex discrimination includes discrimination based on transsexuality at the federal level^[30] and in Quebec,^[31] Also, discrimination based on transgenderism generally (including transsexuality) is covered in British Columbia^[32][33]

"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. … 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.^[33]

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. In May 2009 he introduced it again, with additional provisions to add gender identity and expression to the hate crimes provisions of the Criminal Code.^[34] In February 2011, it passed third reading in the House of Commons with support from all parties, but was not considered in the Senate before Parliament was dissolved for the 41st Canadian federal election. Two bills—C-276 and C-279—on the subject have been introduced in the 41st Canadian Parliament, by the Liberals and the NDP respectively. The NDP's Bill C-279 passed second reading on June 6, 2012.^[35]

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.^[36] LGB Canadians have been allowed to serve in the military since the Douglas case was settled in 1992.^[37]

Prohibited discrimination occurs not only when someone is treated less favourably 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,^[38] and in the Yukon, where the protection against sexual orientation discrimination only applies to "consenting adults acting within the law.".^[19] 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.^[18] However, other laws may explicitly say that they apply notwithstanding a human rights act.

Results

Since the 1985 entrenchment of Section 15 of the Charter, Canadian gays and lesbians have achieved an astonishing range of judicially made rights gains in most policy areas, including immigration, housing, employment, health benefits, adoption, pensions, finances, hate crimes and marriage.^[39]

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 only partially prohibit discrimination against pupils of private schools and the Charter only partly prohibits 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 some provinces.

The curriculum of public schools, particularly in British Columbia, are now being amended to incorporate LGBT topics. In reality, implementation of curriculum varies from school division to school division and often from teacher to teacher.

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^[40]

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 transsexuality and 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^[36] 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."^[36] 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.^[41][42]

Exceptions

There are no legal exceptions that limit the rights of LGBT students specifically, except that the Yukon Human Rights Act^[19] 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. The rate of suicide and depression among LGBT youths is higher than non-LGBT students and so to counter homophobia and bullying in school and to provide support to LGBT students, students in some schools have set up gay–straight alliances or similar groups,^[43] sometimes with support from teachers associations.^[44]

Same-sex marriage

Same-sex marriage in Canada
Legal
Civil Marriage Act Reference re Same-Sex Marriage
Parliament
38th House · 38th Senate 39th House · 39th Senate
Same-sex marriage by province
BC AB SK MB ON QC NB PE NS NL YT NT NU
Related
Civil unions in Quebec Adult interdependent relationship in Alberta Domestic partnership in Nova Scotia Common-law relationships in Manitoba

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 31 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 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)

One recent study by Mark W. Lehman suggests that between 1997 and 2004, Canadian public opinion on legalizing same-sex marriage underwent a dramatic shift: moving from minority-support to majority support and that this support was the result of a significant shift in positive feelings towards gays and lesbians.^[45]

LGBT influence on national politics

In the House of Commons, four parties support LGBT rights with varying degrees. The New Democratic Party, Green Party, Bloc Québécois, and Liberal Party of Canada are the most vocal supporters of these rights. At its founding, the Conservative Party of Canada was 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 a former CA MP was rebuked for calls to re-criminalize homosexuality.^[46] Since 2006, the Conservative Party has become a stronger advocate for LGBT rights, in Canada and abroad.^[47]

Svend Robinson is notable for having been the first MP to come out as gay, in spring 1988. He has since been followed by other gay and lesbian politicians in Parliament: fellow New Democrats Libby Davies, Bill Siksay, Philip Toone, Craig Scott, and Dany Morin; Bloc Québécois MPs Réal Ménard and Raymond Gravel; and Liberal Party of Canada MPs Scott Brison, Mario Silva, and Rob Oliphant, 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.

There are currently six members of the House of Commons and one senator who openly identify as gay or lesbian.

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 openly gay candidate for the leadership of a political party with representation in the House of Commons, although he was not successful. André Boisclair, the former 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 following provinces have had openly gay provincial cabinet ministers^[48] Ontario (Kathleen Wynne, George Smitherman, Glen Murray), British Columbia (Tim Stevenson, Lorne Mayencourt, Ted Nebbeling), and Manitoba (Jim Rondeau, Jennifer Howard}. On January 26, 2013, Kathleen Wynne became the leader of the Liberal party of Ontario and premier of that province (the largest of the country's thirteen provinces and territories, with approximately 39% of the country's population). Following the Ontario provincial election in 2014 , Kathleen Wynne became the first openly gay leader to be elected with a majority mandate in all the commonwealth jurisdictions.^[49]

In 2013, the organization Proud Politics, dedicated to providing networking and fundraising assistance to LGBT people in politics, launched in Toronto as a parallel to the American Gay & Lesbian Victory Fund.^[50]

Summary table

Right	Yes/No	Note
Same-sex sexual activity legal		Since 1969
Equal age of consent	/	Unequal age of consent for anal sex (regardless of sexual orientation)
Anti-discrimination laws in employment
Anti-discrimination laws in the provision of goods and services		Since 1998
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech)		Since 1998
Same-sex marriages		Nationwide since 2005; already previously legalized by 8 out of 10 provinces and 1 out of 3 territories
Recognition of same-sex couples		Common law same-sex couples have been granted financial and immigration benefits since 2000.
Step-child adoption by same-sex couples		Legal in all provinces and territories under varying rules
Joint adoption by same-sex couples
All LGBT people allowed to serve openly in the military		An order which had excluded homosexual persons from military services for 25 years was repealed in 1992, thus allowing LGBT people to serve openly in the Canadian Forces free from discrimination and harassment.
Right to change legal gender		More precise regulations vary by province and territory, respectively.
Coverage for sex reassignment surgery	/	Except New Brunswick [51]
Transexuality/transness declassified as an illness		All Canadian Provinces still using DSM 4 (Diagnostic and Statistical Manual) DSM 5 Unapproved
Sexual orientation conversion therapy banned on minors	/	Since 2015, in Manitoba and Ontario only, other jurisdictions proposed.
Access to IVF for lesbians
Equal access to surrogacy for all couples		Since 2004, the Assisted Human Reproduction Act has prohibited commercial surrogacy for all couples (regardless of sexual orientation).[52] However, altruistic surrogacy is permitted and surrogate mothers may be reimbursed for some expenses. Quebec law allows neither altruistic nor commercial surrogacy (but doesn't explicitly forbid it, and Quebec has reimbursed gay men for surrogacy costs).[53]
Commercial surrogacy for gay male couples
MSM allowed to donate blood	/	Since 2013, subject to 5 years deferral from sexual activities [54]

See also

• Canadian Lesbian and Gay Archives
• Egale Canada
• Fruit machine (homosexuality test)
• Changing legal gender assignment in Canada
• Human rights in Canada
• LGBT policy in the Canadian military
• LGBT rights in the Commonwealth of Nations
• LGBT rights in La Francophonie
• LGBT rights in the Americas

References

Further reading

• Haussman, Melissa; Marian Sawer; Jill Vickers (2010), Federalism, Feminism and Multilevel Governance - Chapter 7: Federalism and LGBT Rights in the US and Canada: A Comparative Policy Analysis, Ashgate, pp. 96–104, ISBN 978-0-7546-7717-8  Cite uses deprecated parameter |coauthor= (help)
• McLeod, Donald (1996-03-01). Lesbian and Gay Liberation in Canada. Toronto: ECW Press. p. 302 pages. ISBN 1-55022-273-2. 

External links

Wikimedia Commons has media related to LGBT in Canada.

• Gay and Lesbian Emergence: Out in Canada – CBC Archives
• 1965 Everett George Klippert: A Fight for Justice NWT Historical Timeline, Prince of Wales Northern Heritage Centre

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