LGBT rights in Canada

Lesbian, gay, bisexual, and transgender (LGBT) rights in Canada are the most advanced in the Americas. LGBT Canadians have most of the same legal rights as non-LGBT citizens, and are extended more legal rights than many other nations where homosexuality is legal. Since 2005, Canada has offered civil marriage rights nationwide to same-sex couples. Canada was the third nation in the world where same-sex marriages were legally performed (commencing in 2003 in the province of Ontario), the fourth nation in the world to perform same-sex marriages nationwide, and it was the first nation in the Americas to perform such marriages nationwide.

While same-sex sexual activity is not criminalized, the age of consent is 18 for anal sex under section 159, but is 16 for all non-anal sex, regardless of sexuality of the participants, since 1988. Courts in three Canadian provinces have held this difference to be discriminatory under Section 15 of the Canadian Charter of Rights and Freedoms.

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, 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.

Social attitudes towards the LGBT community are highly accepting. Canada's largest city, Toronto, has one of the world's best known gay districts (the area surrounding Wellesley subway station), and Beaudry in Montreal is Quebec's gay capital.

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 trans-sexuality 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 first-appointed Minister of Justice, Vic Toews, publicly stated that he supported the use of the notwithstanding clause in some cases. 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."

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 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." 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. 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.

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 Ontario consider 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. 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. 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.

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 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, 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 : Since the 1985 entrenchment of Section 15 of the Charter, 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, most recently, marriage.

Same-sex marriage : 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.

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.

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.

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 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, 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 five members of the House of Commons and one senator who openly identify as gay or lesbian. There are two former MPs 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 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 provinces of Ontario (Kathleen Wynne, Glen Murray), British Columbia (Tim Stevenson, Lorne Mayencourt), and Manitoba (Jim Rondeau, Jennifer Howard) have had openly gay provincial cabinet ministers.