Law as shield: winning fairness for gays and lesbians.

• Author: Lloyd, Julie

In 1969, the Parliament of Canada decriminalized gay sexual activity between consenting adults. Lesbian and gay Canadians have struggled to move from criminals under Canadian law to full and equal citizens. Important advances have been made toward that goal in different jurisdictions. The Province of Alberta has, however, shown a peculiar determination to refuse to recognize its gay and lesbian citizens as persons deserving of dignity and respect and equal treatment under the laws.

The Journey

When Jim Egan reached the age of 65, he became eligible for Old Age Security benefits. Jim's partner Jack Nesbitt had not yet reached the age of 65. The Old Age Security Act provided that if one partner of a couple was entitled to receive the benefit, their partner was between the age of 61 and 65, and their joint income was low, that partner would be entitled to receive a benefit as well. This benefit was available only to opposite sex couples. Mr. Egan challenged the opposite sex definition of spouse in the Old Age Security Act.

The Supreme Court of Canada directed that while sexual orientation was not expressly included as a prohibited ground of discrimination under s. 15 of the Charter, it was analogous to the grounds that were included. Laws in Canada, it was held, cannot, without justification, discriminate against people by reason of their sexual orientation any more than they can discriminate on the basis of race, gender, or religious belief.

The finding by the Court that sexual orientation was an analogous ground under s. 15 of the Charter was tempered by its finding that the Charter rights of Mr. Egan and Mr. Nesbitt had not been violated.

In particular, the Court found that the exclusion of same sex couples from Old Age Security benefits did not contravene the Charter because the Parliament of Canada could properly extend benefits exclusively to heterosexuals.

Heterosexual unions, it found, hold a uniquely important role in Canadian society and singling such unions out for protection was a legitimate governmental objective.

Mr. Egan and Mr. Nesbitt lost their case, but this decision marked a turning point in the advancement of the rights of same sex couples.

When Delwin Vriend was dismissed from his job as a lab instructor with Kings College, Alberta's human rights legislation did not prohibit discrimination of the basis of sexual orientation. Accordingly the Human Rights Commission did not accept Mr. Vriend's complaint.

The Supreme Court of Canada ruled that in excluding sexual orientation as a prohibited ground of discrimination, the human rights legislation in Alberta discriminated against Mr. Vriend on the ground of sexual...