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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. Same-sex sexual activity has been lawful in Canada since June 27, 1969, when the Criminal Law Amendment Act (also known as Bill C-150) came into force upon royal assent.[1]

Canada (orthographic projection).svg
StatusLawful since 1969[1]
Gender identityChange of name and legal sex available in every province and territory, under different rules, and without sex reassignment surgery
MilitaryLGBT people have been authorized to serve openly since 1992.
Discrimination protectionsSexual orientation since 1996 and gender identity or expression since 2017 throughout Canada
Family rights
Recognition of relationshipsSame-sex marriage legally permitted throughout Canada since 2005
AdoptionLegally permitted (particulars may differ within each province and territory)

Canada has frequently been referred to as one of the most gay-friendly countries in the world, with its largest cities often named among the most gay-friendly cities in the world, and featuring their own gay areas and communities such as Toronto's Church and Wellesley neighbourhood, Montreal's Gay Village commercial district, Vancouver's Davie Village and Ottawa's Bank Street Gay Village.[2] Since 1982, the Constitution of Canada has guaranteed fundamental human rights to the LGBT community, as the Canadian Charter of Rights and Freedoms, which applies to all legal instruments, "shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians".[3] Every summer, Canada's LGBT community celebrates gay pride in all major cities, with many political figures from the federal, provincial and municipal scenes.

A global survey conducted in March 2013 showed that 80% of Canada's general population (87% among Canadians aged between 18 and 29) favoured social acceptance of homosexuality, which represented an increase of 10% in public opinion, within six years.[4] Thereafter, polls from June 2013 have shown an increase in the Canadian population's point of view, with a large majority of Canadians supporting same-sex marriage, which has been legally permitted since 2005, and solemnized therewith. The polls also show that 70% of Canada's population agree that "same-sex couples should have the same rights to adopt children as heterosexual couples do", and 76% agreeing that "same-sex couples are just likely as other parents to successfully raise children".[5]

HistoryEdit

Transgender people and cross-dressing practices have been recorded and documented in Canada for centuries. Different indigenous groups have had their own traditions and terms to refer to transgender people, gender variance or sexual identity. These First Nations had perceptions towards gender and sexuality which differed significantly to that of the Western world. Many transgender people in these traditional roles were in positions of reverence, where they acted as caretakers of children who had lost their families, spiritual healers and warriors in battle. The Cree term apêw iskwêwisêhot refers to people who are assigned male at birth but act, dress and behave as female, while the term iskwêw ka napêwayat has the opposite meaning, that being a person assigned female at birth but acts and behaves as male. Similarly, the Kutenai titqattek describes women who take on roles traditionally characterized as masculine, including hunting and warfare. The Blackfoot term aakíí'skassi (meaning "acts like a woman"; also spelt a'yai-kik-ahsi) describes men who dress as women and typically perform chores and activities associated with women, such as basket weaving and pottery making. Many other indigenous groups recognise similar terms: the Inuit sipiniq (ᓯᐱᓂᖅ), the Assiniboine wįktą, the Tlingit gatxan, and the Tsimshian kanâ'ts. Among the Ojibwe, male-to-female individuals are known as ikwekaazo, which literally translates to "men who chose to function as women", whereas female-to-male individuals are known as ininiikaazo. The European colonialists would describe such individuals as "homosexuals", "a curious compound of man and woman" or "berdache", meaning a catamite or a male prostitute. The term is now considered offensive and outdated. Following colonisation and the spread of Christianity by religious missionaries, many of these traditions began to die out. Transgender individuals were furthermore forced and assimilated into Europe-centric culture, and even among the indigenous peoples perceptions began to change. In the early 1990s, indigenous groups sought to reclaim many of their customs and traditions. LGBT indigenous groups proposed the term "two-spirit" to refer to a traditional and cultural "third gender". In modern times, two-spirit is frequently used by First Nations groups to refer to people who embody these gender traits, and is occasionally used to reference the entire indigenous LGBT community. As such, the terms LGBT2S or LGBTQ2S are increasingly used, with the 2S denoting two-spirited people. Records of homosexuality and same-sex relations also exist, notably among the Mi'kmaq, where the common phrase Geenumu Gessalagee, which translates to "he loves men", is used to refer to such individuals.[6]

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.[7] The death penalty was eventually repealed and a broader law involving gross indecency between men was often enforced in the late 19th century.[8] 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."[9]

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 and gender identity or expression in employment, housing and public and private accommodations is banned nationwide. Transgender people are allowed to change their legal gender in all provinces and territories under varying rules.

Constitutional frameworkEdit

Enforcement mechanismEdit

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 (French: La Charte canadienne des droits et libertés) 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,[10] 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.[11]

In 2008, within the framework of its constitutional principles,[12] Canada was part of the Joint statement on human rights, sexual orientation and gender identity delivered in the United Nations General Assembly, on behalf of 66 countries. Section 6 reads:

We condemn the human rights violations based on sexual orientation or gender identity wherever they occur, in particular the use of the death penalty on this ground, extrajudicial, summary or arbitrary executions, the practice of torture and other cruel, inhuman and degrading treatment or punishment, arbitrary arrest or detention and deprivation of economic, social and cultural rights, including the right to health.[13]

Thereafter, in 2011, Canada was also part of a joint statement delivered to the United Nations Human Rights Council, on behalf of 85 countries, for "ending acts of violence and related human rights violations based on sexual orientation and gender identity".[14] It recalled the 2008 Joint statement. Section 9 reads:

We recognise our broader responsibility to end human rights violations against all those who are marginalised and take this opportunity to renew our commitment to addressing discrimination in all its forms.

Legal and equality rightsEdit

 
Participants at the 2016 Vancouver Pride parade

The Constitution of Canada does not explicitly grant or deny any right to LGBT people, nor does it charge with, or discharge of, any duty before and under the law, and Section 15 of the Charter prohibits all types of discrimination which LGBT people could be subject to, or might have encountered, but Subsection 15(2) goes even further into promoting equality, adding up to that no one should have ever been fooled anyway, and thus providing for "the amelioration of conditions of disadvantaged individuals or groups". Subsection 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).[15]

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 grant immediate 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, although, ultimately, all court rulings, including judicial reviews and writs, must come up with the Constitution of Canada, and the Charter as part thereof, and thus, supersede any law being inconsistent with the latter.[16]

Where there is no applicable law against harassment, and conversion therapy, one might argue that protections against such behaviours are already entrenched as a matter of personal security, within section 7 of the Charter. It reads:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

In a court decision in 1988 in the case of R v Morgentaler, the Supreme Court of Canada voted that section 7 is a guarantee against threats to health.[17] Furthermore, in 2000 in the case of Blencoe v British Columbia (Human Rights Commission), it was declared that section 7 also applies to protecting psychological integrity.[18] The Charter applies to all matters within the authority of Parliament, and of any legislature, and binds the Government of Canada, including the executive, and that of each province and territory.[19]

ExceptionsEdit

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 provincial 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.[20] 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.[21] 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 a government, former 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.[22] In spite of Stephen Harper's statements, his Government did not attempt to re-open the issue of same-sex marriage. "On December 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."[23]

However, the notwithstanding clause is no gateway for a publicly smeared Cabinet, and Executive Council, to some unjust or oppressive uses of political power. Section 33 of the Charter, as the entire Charter, is also subject to section 1 of the same, and, as it applies only to sections 2 and 7 to 15, is of no force or effect, for overriding section 1, the substance of which only depending upon the general procedure for amending the Constitution of Canada,[24] and all the way through common law, and natural justice.

Anal sex lawEdit

Anal sex was decriminalized in Canada in 1969 when Bill C-150 was passed into law, with an age of consent set at 21 years.[25] In 1985, Section 159 of the Criminal Code legalized more acts of anal intercourse between two people, but provided exceptions for any two persons under 18 years of age who weren't husband and wife.[26] Section 159 also placed bans on a third person being present during the act of anal intercourse and having people, no matter the number, engage in anal intercourse in public places.[26] However, courts in Ontario,[27] Quebec,[28] British Columbia,[29] Nova Scotia,[30] and Alberta[31] had independently declared Section 159 to be unconstitutional as violations of the equality provision of the Canadian Charter of Rights and Freedoms.

Under the Civil Marriage Act, 2005, which provides for same-sex marriage, one must be aged 16 years or older to legally contract marriage. But, in matters of anal intercourse, the Criminal Code had remained unchanged since at least the Revised Statutes of Canada, 1985, thus portraying a constitutional inequality. The age of consent for anal intercourse between a married opposite-sex couple is 16, but for a married same-sex couple it was 18. However, a disparity in semantic meaning between the English and French versions of the Criminal Code existed, as the words "husband and wife" had been rendered by "les époux", which, according to French grammatical gender rules, applies to everyone of either sex, therefore, providing for same-sex married couples to engage in anal intercourse at the age of 16 years. As per subsection 18(1) of the Canadian Charter of Rights and Freedoms, the statutes of Parliament are printed and published in both English and French, and "both language versions are equally authoritative".[32] As for same-sex unmarried couples, one might want to speak in defence at common law, under section 15 of the Canadian Charter of Rights and Freedoms, as subsection 25(c) of the Expungement of Historically Unjust Convictions Act sets forth the age of consent at 16, for convictions prior to the decriminalization of homosexual acts in 1969.

On November 15, 2016, the Liberal Government introduced legislation to repeal Section 159 of the Criminal Code. The bill, C-32, would have ensured that all forms of consensual sexual activity be treated equally under the law, with an equal age of consent for both heterosexual and homosexual acts.[33] The bill, however, stalled despite all political parties agreeing to it. It was later incorporated into a new bill, C-75, which was tabled in late March 2018. C-75 would modernize aspects of the Criminal Code and make dramatic changes to criminal court proceedings, as well as repeal Section 159.[34] The Canadian Government said: "We heard from the community that [Section 159] is a piece of archaic legislation that has continued to affect young men, so it’s important to get this debated and passed through the house".[35] The bill passed third reading in the House on December 3, 2018, and the Senate on June 13, 2019. By the time the House of Commons adjourned for the summer on June 20, 2019, the bill as amended by the Senate was passed by both houses.[36] On June 21, 2019, the bill received royal assent to become law.[37]

Hate propaganda and like mindsEdit

The Canadian Criminal Code explicitly forbids committing hate propaganda against sections of the public distinguished by sexual orientation, gender identity, or gender expression. Identifiable groups are thus protected against hatred, and genocide, namely destruction, or intent to bring about destruction.[38]

In the end, and in accordance with section 15 of the Canadian Charter of Rights and Freedoms, LGBT people are given the same protection under criminal law, and provincial laws, as any other person, whatever motives one perpetrator might have been prompted or incited by.

Apology and expungement schemeEdit

On November 28, 2017, Prime Minister Justin Trudeau issued a formal apology in Parliament to members of the LGBT community:[39]

It is with shame and sorrow and deep regret for the things we have done that I stand here today and say: We were wrong. We apologize. I am sorry. We are sorry... To members of the LGBTQ2 communities, young and old, here in Canada and around the world: You are loved. And we support you. To the trailblazers who have lived and struggled, and to those who have fought so hard to get us to this place: thank you for your courage, and thank you for lending your voices. I hope you look back on all you have done with pride. It is because of your courage that we’re here today, together, and reminding ourselves that we can, and must, do better. For the oppression of the lesbian, gay, bisexual, transgender, queer, and two-spirit communities, we apologize. On behalf of the government, Parliament, and the people of Canada: We were wrong. We are sorry. And we will never let this happen again.

— Prime Minister Justin Trudeau, 28 November 2017

On June 21, 2018,[40] the Governor General granted royal assent to the Expungement of Historically Unjust Convictions Act (French: Loi sur la radiation de condamnations constituant des injustices historiques),[41] which allows a person who was convicted of homosexual acts prior to their being lawful in 1969 to have the RCMP, and federal departments or agencies, "destroy or remove any judicial record of the conviction".[42] This act does not in any manner preclude Her Majesty's royal prerogative of mercy, nor that of the Crown in Right of a province.

Recognition of same-sex relationshipsEdit

Long before 2005, when Parliament enacted a statutory law recognizing same-sex marriage on the federal level, same-sex relationships were already recognized by many provinces, as some provincial administrative acts were already assigning the same rights and obligations to same-sex and opposite-sex couples living together, or de facto spouses in Quebec.

As early as 2002, the Civil Code of Quebec was amended to provide same-sex couples with an all-encompassing solution, and the most extensive possible within provincial jurisdiction, insofar as it created then a status of civil unions that nowadays still allows for couples who choose to form such a union, regardless of gender or sexual orientation, to benefit from the same effects as those of marriage, "as regards the direction of the family, the exercise of parental authority, contribution towards expenses, the family residence, the family patrimony and the compensatory allowance".[43] Since then, in addition to being bound to share a community of life, and owing each other respect, fidelity, succour and assistance, civil union spouses have the same rights, duties and obligations as married couples, but unlike marriage, which is under federal jurisdiction, and by that time had to be awaited another three years before the Parliament act stating its definition came into force on account of same-sex couples, a civil union is valid only in Quebec, and may not be recognized outside of its jurisdiction, or may be faced with unexpected problems.[44]

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, the 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, and in December of the same year, declared the proposed definition of "marriage" as being consistent with respect to all matters referred to in the Canadian Charter of Rights and Freedoms, and as falling within the exclusive legislative authority of the Parliament of Canada.[45]

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.[46]

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.[47]

Adoption and family planningEdit

The first province to allow adoption of children by same-sex couples in Canada was British Columbia in 1996.[48] Since then, adoption by same-sex couples has been legalized in Ontario (1999),[49] Saskatchewan (2001),[50] Nova Scotia (2001),[51] Newfoundland and Labrador (2002),[52] Quebec (2002),[53] Manitoba (2002),[54] the Northwest Territories (2002)[55] and Yukon (2003).[56][57] In Alberta, stepchild adoption was legalized in 1999 and eight years later, in 2007, joint adoption became legal.[58][59] New Brunswick legalized joint adoption in 2008,[58][60] while Prince Edward Island did so in 2009.[61][62] Nunavut legalized it in 2011, and thus became the last province or territory in Canada to do so.[63][64]

Discrimination and harassment protectionsEdit

 
"March of Hearts" rally for same-sex marriage in Canada on Parliament Hill in Ottawa, March 6, 2004.

Enforcement mechanismEdit

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, gender identity or expression, marital status, religion, disability, age and sexual orientation) 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.[65] They stand by the rule that every person has the right to the equal benefit of the law. 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 and harassmentEdit

In 1977, the Quebec Charter of Human Rights and Freedoms, which is both a charter of rights and a human and youth rights act, was amended to prohibit discrimination based on sexual orientation, and likewise harassment, in 1982. Thus, the province of Quebec became the first jurisdiction in the world larger than a city or county to prohibit sexual orientation discrimination, and harassment (including but not limited to mockery, insult, bullying, and intimidation at school, or at work), in the private and public sectors. Quebec's provincial law thus states that "no one may harass a person on the basis of any grounds" relating to sexual orientation, or gender identity or expression.[66] The rule applies to everyone in the areas of employment, housing, public services, public transport, public places (including businesses, restaurants, hotels, schools, churches, parks, and camp sites), and juridical acts (including insurance policies, and contracts). As regards private and family matters, the Charter goes along with all Quebec civil laws (see preliminary provision of the Civil Code of Quebec 1994, and including the former Civil Code of Lower Canada),[67] and the Youth Protection Act (French: Loi sur la protection de la jeunesse), which dates back to 1977, and whose purpose "is to protect children whose security or development is or may be considered to be in danger", namely "if the child is abandoned, neglected, subjected to psychological ill-treatment or sexual or physical abuse".[68] Quebec's Commission des droits de la personne et des droits de la jeunesse, established in 1976, would then investigate and enforce the law against anyone who had committed discrimination, or harassment, "based on one of the prohibited grounds and on one of the protected areas",[69] or against anyone who had endangered a child.[70] Since 2008, Quebec's Ministry of Justice has specifically been assigned for the fight against homophobia, so as to perform full social acceptance among and within Quebec's population. "The mandate of the Bureau de lutte contre l'homophobie is to oversee the implementation, monitoring and assessment of the Government Action Plan against Homophobia", which "promotes respect for the rights of sexual minority members", and sets down "the creation of safe, inclusive environments", as one of its five priorities. Quebec Premier Philippe Couillard has thereby declared and signed: "Today, we can make Québec rich in its diversity".[71][72]

In 1984, in Manitoba, LGBT activists pushed for inclusion of protection from discrimination on the grounds of sexual orientation with tactics including a 59-day hunger strike by Richard North.[73] In 1987, Manitoba passed the Human Rights Code which included protections from discrimination based on sexual orientation.[74] Today, sexual orientation is explicitly mentioned as a ground of prohibited discrimination in the human rights acts of all jurisdictions in Canada.

On June 20, 1996, the Canadian Human Rights Act (CHRA; French: Loi canadienne sur les droits de la personne) was amended to include sexual orientation as a protected ground. The CHRA guarantees the right to equality, equal opportunity, fair treatment and an environment free from discrimination in employment and the provision of goods, services, facilities or accommodation within federal jurisdiction.[75] Relations between individual human beings falling within provincial jurisdiction, the CHRA applies only to institution-based activities, or corporations, that falls within federal jurisdiction, namely, it forbids discrimination, and harassment, by, or from, federal departments, and agencies, banks, radio, and television stations, airlines, and ship-owners, towards their employees, or sections of the general public.

Sexual orientation is not defined in any human rights act, but is widely interpreted as meaning heterosexuality, homosexuality and bisexuality. It does not include transsexuality or transgender people.[76] 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.[77] 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.[78]

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.[15]

Since June 2017, all provinces and territories of Canada explicitly prohibits within their human rights, equal opportunity and/or anti-discrimination legislation discrimination based on gender identity or gender identity or expression.[79] Previously, human rights commissions considered that sex discrimination includes discrimination based on gender identity.[80][81][82]

The Ontario Human Rights Commission defines gender identity 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.[82]

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.[83] 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 were 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.[84] However, the bill again died on the Senate order paper when the 2015 federal election was called. In May 2016, An Act to amend the Canadian Human Rights Act and the Criminal Code (French: Loi modifiant la Loi canadienne sur les droits de la personne) was introduced to the House of Commons of Canada, to add and include "gender identity or expression" in the Canadian Human Rights Act.[85] In June 2017, the Canadian Parliament passed the bill and it received royal assent a week later. The law went into effect immediately.[86][87] The bill was approved 67-11 in the Senate and 248-40 in the House of Commons.

LGBT discrimination tableEdit

Territory/Province of Canada Sexual orientation Gender identity Gender expression Conversion therapy ban
Canada (federal)   (Since 1996)[75]   (Since 2017)[86]   (Since 2017)[86]  
Northwest Territories   (Since 2002)   (Since 2002)    
Nunavut   (Since 1999)   (Since 2017)[88]   (Since 2017)  
Yukon   (Since 1987)   (Since 2017)[89][90]   (Since 2017)[90]  
British Columbia   (Since 1992)   (Since 2016)[91][92]   (Since 2016)  /  (Banned in Vancouver only since 2018)[93]
Newfoundland and Labrador   (Since 1995)   (Since 2013)[91]   (Since 2013)  
Alberta   (Since 2009)[94]   (Since 2015)[91]   (Since 2015)  
Quebec   (Since 1977)   (Since 2016)[95]   (Since 2016)  
Prince Edward Island   (Since 1998)   (Since 2013)[96]   (Since 2013)  
Manitoba   (Since 1987)   (Since 2012)[97]  /  (Not explicitly included but implicitly included since at least 2016)[98]   (Since 2015)[99]
New Brunswick   (Since 1992)[91]   (Since 2017)[100]   (Since 2017)[100]  
Nova Scotia   (Since 1991)   (Since 2012)[101]   (Since 2012)   (Since 2018, but allows "mature minors" between the ages of 16 and 18 to consent)[102]
Saskatchewan   (Since 1993)   (Since 2014)[103]  [104]  
Ontario   (Since 1986)[75]   (Since 2012)[105][106]   (Since 2012)   (Since 2015)[107]

Activities where equality guaranteedEdit

Accordingly, discrimination, including harassment, based on real or perceived sexual orientation, gender identity, or HIV/AIDS status 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.[108] LGBT Canadians have been allowed to serve in the military since the Douglas case was settled in 1992.[109]

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."[110] 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.

ExceptionsEdit

Human rights acts have no exceptions specifically for sexual orientation or gender identity, 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.[65] However, other laws may explicitly say that they apply notwithstanding a human rights act. Furthermore, some collective agreements include broad non-discrimination provisions that actually expand upon the rights listed in human rights acts.

ResultsEdit

Since the 1985 entrenchment of Section 15 of the Charter, Canadian LGBT people 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.

Schools and other educational institutionsEdit

 
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.[111] Controversially, the Canadian Supreme Court ruled in favour of denying accreditation to a religious university in 2018 due to its policies banning students who have had sex outside of marriage or gay sex.[112]

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 gender identity, 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,[108] 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."[108] 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.[113][114]

In 2012, Ontario passed the Accepting Schools Act, which was enacted after growing concern regarding bullying behaviours and several tragic suicides of bullied students. The legislation is intended to identity and prevent bullying, which includes LGBT students, and provide resources and support for educators and students as they deal with bullying incidents.[115][116] Under the act, bullying is defined as repeated and aggressive behaviour by a pupil where, 1) the behaviour is intended by the pupil to cause, or the pupil ought to know that the behaviour would be likely to cause, harm, fear or distress to another individual, including psychological harm or harm to the individual's reputation and 2) the behaviour occurs in a context where there is a real or perceived power imbalance between the pupil and the individual based on factors such as size, strength, age, intelligence, peer group power, economic status, social status, religion, ethnic origin, sexual orientation, family circumstances, gender, race, disability or the receipt of special education. Quebec, Manitoba, New Brunswick, Nova Scotia, Alberta, Newfoundland and Labrador, the Northwest Territories and Yukon have also enacted similar anti-bullying laws. Other provinces, including British Columbia and Saskatchewan, have established policies and action plans regarding bullying in schools.

ResultsEdit

As of 2006, few schools in Canada have implemented the Jubran requirements, and anti-gay bullying and name-calling by students.[117] 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,[118] sometimes with support from teachers associations.[119]

As of 2019, most provinces and territories have enacted specific anti-bullying legislation designed to identity and prevent bullying of students in schools, which includes LGBT students.

Conversion therapyEdit

 
The 2014 edition of Pride Toronto

So-called "conversion therapy", sometimes known as "reparative therapy", is a range of practices that falsely claim to change, or to have power to change, a person's sexual orientation or gender identity or expression. Such practices have been rejected by every mainstream medical and mental health organization.[120][121][122]

Federal levelEdit

In September 2018, the Lethbridge Public Interest Research Group (LPIRG) and YQueerL launched a petition to ban conversion therapy nationwide.[123] However, in March 2019, the Government of Canada rejected the petition after it received more than 18,000 signatures and was presented in the House of Commons on 1 February by NDP MP Sheri Benson. The government response argued that conversion therapy is "immoral", "does not reflect the values of Canadians", and has been identified as "unethical". However, it refused to take action against the practice, claiming it falls under the scope of regulation of health professionals (on the basis that some conversion therapy is practised by regulated medical professionals such as registered psychiatrists or psychotherapists), which according to the division of powers between the federal and provincial governments in Canada's Constitution is a provincial and territorial responsibility. LGBT activists who support the petition announced they plan to continue to calling for a nationwide ban.[124][125]

In April 2019, Liberal Senator Serge Joyal tabled Bill S-260 which aims to amend the Criminal Code of Canada and make it an offence to advertise conversion therapy to anyone under the age of 18, punishable by up to five years' imprisonment.[126][127]

In May 2019, members of the Canadian Bar Association called on the Government of Canada to examine whether it has the legal power to ban conversion therapy and stop tax benefits for groups that carry out conversion therapy, either within Canada or abroad.[128]

Provincial and territorial levelEdit

In 2012, in accordance with the American Psychological Association, the professional order for Quebec psychologists (l'Ordre des psychologues du Québec) reaffirmed "its position that homosexuality per se is not a mental disorder", and that it "opposes portrayals of sexual minority youths and adults as mentally ill due to their sexual orientation".[129] Furthermore, underlining that aversive therapies (or "conversion therapies") are inappropriate, unethical, and inhumane, the Order has advised the members of the profession in Quebec that psychotherapy, due to legal considerations, is all-indicated for the purpose of treating depression or anxiety, to relieve distress, to support self-esteem, and to help people to cope with the difficulties they may encounter and thus, to ensure their well-being, regardless of sexual orientation. Besides, in May 2018, the professional order for Quebec sexologists (l'Ordre professionnel des sexologues du Québec) also issued a public notice reiterating the position of the Quebec psychologists, to inform the people about the risks of online, or phone, counseling, and that those practices are strictly forbidden by all the professional orders and associations in Quebec (including medicine and psychiatry), as it could have harmful effects on one's mental health.[130] Any complaints concerning aversive therapies, whether it be conducted by religious, professional or other practitioners, would be filed with either one of the Orders, or associations, and/or Quebec's Commission des droits de la personne et des droits de la jeunesse, under the harassment clause, section 10.1 of the Quebec Charter of Human Rights and Freedoms,[131] or under the psychological ill-treatment clause, section 38 of the Youth Protection Act.[132]

On May 22, 2015, Manitoban Health Minister Sharon Blady announced measures to stop conversion therapy in Manitoba. Blady said the province's Human Rights Code prohibits discrimination based on sexual orientation – including how health care services are provided.[133] Blady also stated that "it is the position of the Manitoba Government that conversion therapy can have no place in the province's public health-care system."[134]

In June 2015, the Affirming Sexual Orientation and Gender Identity Act (Bill 77) was made law in the province of Ontario. The act bans conversion therapy on minors and forbids it from being funded under the Ontario Health Insurance Plan public health care for anyone, of any age. The bill was introduced by Cheri DiNovo, a member of the Ontario New Democratic Party, and passed the Legislative Assembly with the support of all three major political parties.[135]

On June 6, 2018, the city councillors of Vancouver unanimously voted to prohibit conversion therapy by businesses, regardless of age. The business licence bylaw applies to all licence holders, including religious groups.[136][93]

Three bills (one each from the Nova Scotia Liberal Party, the Progressive Conservative Association of Nova Scotia and the Nova Scotia New Democratic Party) to ban the pseudoscientific and abusive practice were introduced in Nova Scotia.[137][138] On September 25, 2018, the Nova Scotia House of Assembly passed the Sexual Orientation and Gender Identity Protection Act, the Liberal Party bill, with the unanimous support of all parties. The legislation received royal assent on 11 October and went into effect immediately. The act provides measures similar to Ontario's legislation, both in terms of prohibiting professionals from performing the therapy on minors, and prohibiting public funds from paying for the procedures for everyone regardless of age. However, Nova Scotia's age limit is set at 19 instead of 18, and its exception for competent consenting individuals has a minimum age limit of 16, whereas Ontario's act doesn't set any specific minimum limit with respect to competent consenting individuals. Nova Scotia's legislation also prohibits persons in a position of trust or authority (such as a religious leader) from making efforts aimed at changing the orientation or gender identity of a person under 19 years of age.[139]

In Novembre 2018, Prince Edward Island MLAs unanimously passed a motion expressing support for a conversion therapy ban. The non-binding motion was brought to the floor by Green Party MP Peter Bevan-Baker. Health Minister Robert Mitchell argued to the best of his knowledge that conversion therapy is not practiced in the province. A representative of the PEERS Alliance said the group would like to see the province take the next step and introduce legislation.[140]

In December 2018, advocates in Saskatchewan called on the province to ban conversion therapy. A government spokesperson said that these "therapies" do not have official support, but the province has not decided on whether to put that into legislation.[141]

In February 2019, it was reported that a working group co-chaired by Alberta New Democratic Party MLA Nicole Goehring would look at ways to ban conversion therapy in Alberta. The working group would meet over the next five months to develop ways to ban the practice in the province. Recommendations would then be made to the Minister of Health.[142] Goehring, the MLA for Edmonton-Castle Downs, had been working on a private member's bill to ban the discredited practice. Both the Alberta New Democratic Party and the Alberta Liberal Party support banning conversion therapy. The United Conservative Party, which won a majority of legislative seats at the 2019 general election, cancelled the working group in May 2019.[143]

In March 2019, it was reported that a group of students in Whitehorse, Yukon were preparing a petition that would call on the Yukon Government to ban conversion therapy for minors.[144]

In May 2019, the Green Party of British Columbia introduced a bill to ban conversion therapy for minors under 19 years old; seeking partisan support from the British Columbia New Democratic Party and the British Columbia Liberal Party.[145][146]

Intersex rightsEdit

For Intersex Awareness Day in October 2018, Egale Canada published a statement calling on the Canadian Government to protect the rights of intersex persons, fulfilling "treaty body obligations under international law," and accompanied by a submission to the UN Committee Against Torture. The statement referred to Criminal Code [s. 268(3)], stating that it "allows for parents and medical practitioners to undertake nonconsensual, cosmetic surgeries on intersex infants".[147][148] In May 2019, the Canadian Bar Association made a similar call.[149]

Since 2017, besides male and female, Canadian passports have been available with an "X" sex descriptor.[150] In June 2019, Canadian authorities announced that non-binary people may also apply to have an "X" gender marker.[151]

Birth certificates in Canada are issued by state and territory officials. As of 2019, Alberta, British Columbia,[152] New Brunswick,[153] Newfoundland and Labrador, the Northwest Territories,[154] Nova Scotia,[155] Ontario, and Yukon allow for a "third gender" option ("X"). Some provinces, namely Ontario and Saskatchewan, also offer citizens the option of not displaying the sex field at all.

Blood donationEdit

In 1977, at the height of the HIV/AIDS pandemic, a ban on gay and bisexual men donating blood was enacted.[156]

In 2013, this ban was partially lifted and allowed for men who have sexual contact with another man to donate blood after a five-year deferral period.[156] In June 2016, Health Canada announced that the blood donation deferral period would be reduced to one year. The new criterion took effect on August 15, 2016.[156][157]

On August 15, 2016, Canadian Blood Services' new eligibility criteria for transgender people came into effect. This criteria states that transgender donors who have not had sex reassignment surgery will be asked questions based on their sex assigned at birth. They will be eligible to donate or be deferred based on these criteria. For example, trans women will be asked if they have had sex with a man in the last 12 months. If the response is yes, they will be deferred for one year after their last sexual contact with a man. And donors who have had sex reassignment surgery will be deferred from donating blood for one year after their surgery. After that year, these donors will be screened in their affirmed gender.[158][159]

On June 3, 2019, the deferral period for gay and bisexual men was reduced from 1 year to 3 months.[160][161] However, Health Canada still implements a lifetime ban on sperm donations by gay and bisexual men.[162]

LGBT influence in national politicsEdit

 
Prime Minister Justin Trudeau at the 2015 Vancouver Pride parade, shortly after launching his election campaign.

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.[163] Since 2006, the Conservative Party has become a stronger advocate for LGBT rights in Canada and abroad.[164] In May 2016, Conservative Party delegates voted in favour of removing the definition of marriage as a union between one man and one woman from the party's official policy document, effectively changing the party's official position on same-sex marriage from opposed to neutral.[165][166]

May 28, 2016 vote at the Conservative Party Convention[167][168]
Provinces/Territories Voted for (Delegates) Voted against (Delegates)
Ontario (ON) 300 142
British Columbia (BC) 228 77
Alberta (AB) 206 93
Quebec (QC) 112 26
Saskatchewan (SK) 53 61
Manitoba (MB) 56 44
Nova Scotia (NS) 33 4
Newfoundland and Labrador (NL) 17 6
New Brunswick (NB) 14 6
Territories (Yukon (YT), Northwest Territories (NT), and Nunavut (NU)) 11 2
Prince Edward Island (PEI) 6 1
Total 1,036 462
 
The Liberal Party at the Montreal Marche des Fiertés

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.

As of 2018, there are six members of the House of Commons and two senators 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:[169] 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.[170]

ProudPolitics, a cross-partisan organization dedicated to providing networking and fundraising assistance to LGBT politicians and candidates inspired by the American Gay & Lesbian Victory Fund, was established in Toronto in 2013.[171]

On November 15, 2016, Randy Boissonnault, Liberal MP for Edmonton Centre, was named Special Advisor on LGBTQ2 issues to the Prime Minister. The role involves advising the Prime Minister "on the development and co-ordination of the Government of Canada's LGBTQ2 agenda" including protecting LGBT rights in Canada and addressing both present and historical discrimination.[172]

On April 23, 2019, the Royal Canadian Mint launched a new dollar coin symbolizing equality with 3 million loonies placed into circulation to commemorate 50 years since the decriminalisation of homosexuality in Canada.[173]

In August 2019, Mayor Jim Watson of Ottawa came out as gay in an op-ed to the Ottawa Citizen.[174]

Summary tableEdit

Right Yes/No Note
Same-sex sexual activity legal   Since 1969
Equal age of consent   Nationwide since 2019. In British Columbia, Nova Scotia, Ontario, Quebec and Alberta, Section 159 of the Criminal Code had been ruled unconstitutional prior to 2019.[29][30]
Anti-discrimination laws in employment   Since 1996 for sexual orientation; since 2017 for gender identity or expression
Anti-discrimination laws in the provision of goods and services   Since 1996 for sexual orientation; since 2017 for gender identity or expression
Anti-discrimination laws in all other areas (including indirect discrimination, hate speech)   Since 1996 for sexual orientation; since 2017 for gender identity or expression
Same-sex marriages   Nationwide since 2005; already previously legalized by 8 out of 10 provinces (BC and ON in 2003; MB, QC, NS, SK and NL in 2004; NB in 2005) and 1 out of 3 territories (YT in 2004)
Recognition of same-sex couples   Same-sex couples have been granted financial and immigration benefits since 2000
Stepchild adoption by same-sex couples   Legal in all provinces and territories under varying rules (first jurisdiction 1996, last jurisdiction 2011)
Joint adoption by same-sex couples  
LGBT people allowed to serve openly in the military   An order which had excluded LGBT persons from military service was repealed in 1992, thus allowing LGBT people to serve openly in the Canadian Armed Forces free from discrimination and harassment
Right to change legal gender   Since 2017, all 13 jurisdictions of Canada do not require sex reassignment surgery for changes to sex markers on government forms. More precise regulations vary by province and territory, respectively.
Coverage for sex reassignment surgery  /  In all provinces (to a variable extent), but none of the territories[175][176]
Third gender option   Since 2017
Transgender identity declassified as an illness  /  Some Canadian provinces/territories are using DSM 5, others continue to use DSM 4
Conversion therapy banned on minors  /  Since 2015 in Manitoba and Ontario; since 2018 in Vancouver and Nova Scotia[93]
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).[177] 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).[178]
Commercial surrogacy for gay male couples   Commercial surrogacy is prohibited for all couples, regardless of sexual orientation
Gay criminal records expunged   Since 2018[179]
MSM allowed to donate blood  /  3 month deferral period[160][161]

See alsoEdit

ReferencesEdit

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Further readingEdit

External linksEdit