Sexual orientation and the Charter: the achievement of formal legal equality (1985-2005) and its limits.

• Author: Wintemute, Robert

Canada is one of the leading countries in the world in the strength of its legal protection against sexual orientation discrimination and in the progress it has made toward securing equal rights and opportunities for its lesbian, gay, and bisexual ("LGB") minority. The author details the achievement of formal legal equality through the courts', particularly the Supreme Court of Canada's, Charter decisions since section 15 (the equality provision) of the Charter first became effective. He focuses on the topics of criminal law, employment, unmarried same-sex couples, LGB parenting, and civil marriage for same-sex couples. By canvassing the landmark cases in these areas, he examines the Charter dialogue between the courts and legislatures and the political results of these equality decisions.

The author hypothesizes that future Charter litigation will concern the limits of formal legal equality. This is so because once a group that has historically faced pervasive direct discrimination achieves formal legal equality (based on claims of "sameness"), attention immediately shifts to indirect discrimination (based on claims of "difference"). As in the case of Little Sisters, where the Supreme Court was unwilling to make exceptions to the definition of obscenity for the LGB minority, sexuality is one area that is likely to remain a focus of the struggle for substantive equality.

The article concludes with the reminder that once formal legal equality has been achieved, and proves inadequate, there is a tendency among equality-seeking groups to dismiss it. While the author recognizes that formal legal equality on its own is not enough, he stresses that it has tremendous material and symbolic value. He hopes that Canada's leadership in this area of human rights law will inspire the many countries where formal legal equality for LGB individuals and same-sex couples remains a distant dream.

A cause de ses fortes garanties juridiques contre la discrimination fondee sur l'orientation sexuelle, et a cause de ses avancees vers la recormaissance de l'egalite des droits et des chances pour sa minorite lesbienne, gaie et bisexuelle (LGB), le Canada fait figure de chef de file dans le monde. L'auteur retrace l'histoire de l'atteinte de l'egalite formelle par le biais des tribunaux, et s'attarde plus precisement sur les decisions de la Cour supreme sur la Charte des droits et libertes de la personne depuis l'entree en vigueur de son article 15. Il se concentre sur le droit criminel, l'emploi, les couples de meme sexe non maries, l'homoparentalite et les mariages civils des couples de meme sexe. Dans son examen des arrets marquants dans ces domaines, il examine le dialogue entre les tribunaux et le legislateur, de meme que l'impact politique des decisions pretoriales portant sur la notion d'egalite.

L'auteur conjecture que la prochaine vague de litiges portant sur la Charte portera sur les limites de l'egalite juridique formelle. En effet, un groupe qui a histuriquement subi une discrimination directe considerable et qui finit par obtenir l'egalite formelle (sur la base d'appels a la >) tend alors a s'en prendre a la discrimination indirecte dont il se dit etre l'objet (sur la base d'appels a la >). L'affaire Little Sisters, dans laquelle la Cour supreme n'a pas voulu creer, pour la minorite LGB, d'exception a la definition de l'obscenite, montre que la sexualite sera probablement un lieu d'activite important dans la lutte pour la reconnaissance de l'egalite substantielle.

L'article se termine par un rappel. Si, une fois atteinte, l'egalite formelle se revele inadequate, les groupes militant pour l'egalite auront tendance a la laisser tomber. Bien que l'auteur reconnaisse que l'egalite formelle ne suffise pas en soi, il en souligne l'enorme valeur materielle et symbolique. Il espere que l'exemple du Canada dans ce domaine des droits de la personne inspirera les nombreux pays ou l'egalite formelle des personnes LGB et les conjoints de meme sexe n'est qu'un reve eloigne.

Introduction I. Recognizing Sexual Orientation as an "Analogous Ground" Under Section 15(1) II. Applying Section 15(1) to Specific Forms of Sexual Orientation Discrimination A. Equality in the Criminal Law B. Equal Access to Employment C. Equality for Unmarried Same-Sex Couples D. Equality for Actual and Prospective LGB Parents E. Equal Access to Civil Marriage for Same-Sex Couples III. Indirect Discrimination Claims: From Formal to Substantive Legal Equality? Conclusion Introduction

Canada is one of the leading countries in the world in the strength of its legal protection against sexual orientation discrimination (1) and in the progress it has made toward securing equal rights and opportunities for its lesbian, gay, and bisexual ("LGB") minority. (2) The Canadian Charter of Rights and Freedoms, (3) and the Supreme Court of Canada's Charter decisions, have played an important role in expanding this legal protection since the equality rights provision of the Charter, section 15, came into force on 17 April 1985.

Although not limited to such situations, section 15(1) has proven most powerful when it is wielded against legislation or other rules that blatantly deny formal legal equality (i.e., involve direct--usually express--discrimination). On 16 April 1985, the age of consent to same-sex sexual activity (4) was twenty-one (versus fourteen for most male-female sexual activity), (5) sexual orientation discrimination in employment and other areas was legal in twelve out of the then thirteen jurisdictions, and unmarried same-sex couples were not recognized by any legislation or case law, especially legislation on joint adoption of children. By invoking section 15 of the Charter, LGB litigants have been able to challenge some of the hundreds of distinctions in legislation that existed in 1985 and persuade judges that they are discriminatory and unjustifiable. Judicial decisions have, in turn, encouraged governments and legislatures to repeal many of these distinctions voluntarily without further litigation.

In this article, I will consider the progress that has been made since 1985, especially in the case law of the Supreme Court, and the areas of Canadian law in which this progress has occurred. In doing so, I will assess the likelihood of the Supreme Court requiring nationwide equal access to civil marriage in 2005, which would represent the remarkable achievement of formal legal equality for LGB individuals and same-sex couples after only twenty years of Charter protection. I will close by examining issues of substantive legal equality that will remain to be addressed in the future. (6)

1. Recognizing Sexual Orientation as an "Analogous Ground" Under Section 15(1)

   The words "sexual orientation" do not appear in section 15(1) of the Charter, alongside "race, national or ethnic origin, colour, religion, sex, age or mental or physical disability." On 29 January 1981, a parliamentary committee had rejected (with twenty-two votes against and two for) an amendment proposed by then MP Svend Robinson (7) that would have added sexual orientation. (8) Then Minister of Justice, Jean Chretien said: "We have explained that there are other grounds of discrimination that will be defined by the courts. We wanted to have an enumeration of grounds and we do not think it should be a list that can go on forever." (9) Thus, in January 1981, less than twelve years after the decriminalization of adult same-sex sexual activity, (10) and at a time when sexual orientation appeared in the anti-discrimination legislation of only one province (Quebec) (11) and in no national-level constitution or legislation anywhere in the world, discrimination against LGB persons was not yet considered sufficiently serious to warrant express inclusion in section 15(1) as an "enumerated ground". In view of the subsequent developments to be discussed below, there can be no doubt that if section 15(1) were to be drafted for the first time today, sexual orientation would be included, as it has been in section 9(3) of the South African Constitution (1996) (12) and article 21(1) of the Charter of Fundamental Rights of the European Union (2000). (13)

   The decision not to mention sexual orientation in section 15(1) in 1982 was clearly not intended to prevent subsequent judicial determinations that it is implicitly included. Indeed, as early as 1986, the federal Department of Justice stated that it was "of the view that the courts will find that sexual orientation is encompassed by the guarantees in section 15." (14) Lower courts could not easily address this question until after the Supreme Court decided, in Andrews v. Law Society of British Columbia, (15) to limit the scope of review under section 15(1) by defining "discrimination" as: (i) a distinction (or a neutral rule with a similar effect); (ii) that is based on a ground "enumerated" in section 15(1) or "analogous" to the enumerated grounds (like "citizenship", the ground in Andrews); and (iii) which is "discriminatory" in some substantive rather than purely formal sense. (16)

   Was sexual orientation an "analogous ground" (i.e., similar to race, religion, and sex)? Most lower courts found that it was, but often did not give any reasons for their conclusion because the respondent government had conceded the point. (17) When the question finally reached the Supreme Court in Egan v. Canada, (18) all nine judges held that sexual orientation is such a ground. However, they gave two different sets of reasons for this conclusion. Justices Cory and Iacobucci, writing for a group of rive judges, found that "homosexuals, whether as individuals or couples, form an identifiable minority who have suffered and continue to surfer serious social, political and economic disadvantage." (19) They did not refer to the cause of an individual's sexual orientation and instead focused on the social, political, economic, and legal status of LGB individuals as a group...