KANADIAN

LGBT rights in Canada

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 sodomites being executed and political figures were reluctant to enforce the law. The death penalty was eventually repealed for sodomites and a broader law involving gross indecency between men was often enforced in the late-19th century. 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 resulted in his life imprisonment, who admitted to having sex with multiple men. 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.^"
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 in the Americas 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. Transsexuals 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.
Canada has frequently been referred to 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 one of the most gay friendly cities in the world Recent polls have indicated that a majority of Canadians support same-sex marriage,with the most support stemming from Ontario, Quebec and British Columbia, with the lowest support in Alberta.

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.

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 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.

Schools and other educational institutions

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 do not prohibit discrimination against pupils of private schools and the Charter does not prohibit 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 certain cases.
The curriculum of public schools, particularly in British Columbia, are now being amended to incorporate LGBT topics.
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
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 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." 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.