Between 1972 and 1995 some drastic changes took place in the laws of Canada with a direct bearing on the civil rights of gays and lesbians. In 1972, the then Liberal Federal Government of Pierre Trudeau repealed all special criminal laws relating to gays and lesbians - sexual activity between people of the same-sex, provided they were both over the age of consent, and the activity took place in private, was decriminalized. Canada was unique among those countries of the former British Empire in having made sex between women illegal as recently as the 1950s, otherwise the laws were a relic of the late Victorian moral crusade, marked by the passage of laws that were often described as a blackmailer s charter .
In 1977 Quebec became the first province to include sexual orientation in its Human Rights Code as prohibited grounds for discrimination. By 1995 all but the provinces of Prince Edward Island, Alberta and Newfoundland, and the Northwest Territories, had taken this step. In New Brunswick the provincial government added such a clause to the Human Rights Code in April 1991. In the spring of 1993 the Federal Justice Minister Kim Campbell issued a White Paper proposing that sexual orientation be added to the Federal Human Rights Act as prohibited grounds for discrimination - thus honouring a promise made by then Prime Minister Brian Mulroney in 1986. The government fell before the necessary amendment could be introduced in the House of Commons. The present Justice Minister, Alan Rock, has indicated that such an amendment will be introduced during the 1994 session.
The various provincial changes usually take the same form as those introduced in New Brunswick in 1991, namely, discrimination on the basis of sexual orientation is now prohibited in the areas of employment, housing and the provision of services. New Brunswickers cannot be denied employment, or be sacked simply because they are gay, lesbian or bisexual (or heterosexual!), they cannot be denied housing or evicted because they are gay, lesbian or bisexual (or heterosexual!), and they cannot be denied services, be they medical treatment, schooling, banking, mortgage, insurance, hiring a taxi, or being served in a shop or bar.
In practise of course, such legislation does not prevent discrimination, any more than laws against murder and theft prevent murder and theft, but such laws on the statute books make it clear that such behaviour is illegal, and those who wish to discriminate on these grounds have to be a little more subtle and imaginative. Furthermore, gays, lesbians and bisexuals (and heterosexuals) who suffer such discrimination now have recourse in law.
Does this amount to special rights?
No. Under the law ALL Canadians are now entitled to EQUAL
treatment in those areas were discrimination is banned. Prior to the
introduction of this legislation, gays, lesbians and bisexuals did have a
special status - they were the ONLY Canadians who could be dismissed, evicted
or denied services purely because their employer, landlord or service
provider objected to one aspect of their private lives.
Have these changes introduced equality of treatment in all areas of the law?
No. Separate legislation was required to make the armed forces drop their
standing regulations against gay, lesbian and bisexual personnel, and some
provinces (but not New Brunswick) have introduced specific exemptions for
religious organizations. There is still no protection under Federal law. This
means that gay or lesbian Canadians cannot generally sponsor their non-
Canadian partners as immigrants - it can be done, but the process is long,
complex and potentially very expensive. Under present immigration laws gays
and lesbians have special status. Furthermore, because Federal regulations
cover areas like unemployment insurance and pensions, gay and lesbian
Canadians cannot include their partners in these schemes in the same way that
heterosexual Canadians do as a matter of routine. This too is special status.
In this respect, the federal government is lagging behind not only several
provinces, but also behind many private employers and private insurance
companies. Many Canadian employers are already providing same-sex couples
with health benefits, and many insurance companies allow for beneficiaries who
are not related to the policy holder by blood or marriage. The federal
government is one of the few Canadian institutions that still grants gays and
lesbians special status. Ironically, it is in pensions that this special status
actually benefits gay and lesbian couples, because their Canada Pension is
assessed as though they were two single persons, and they receive higher net
payments than if they were a married couple.
Do these equal rights amendments permit behaviour that is criminal?
No. The amendments to the Human Rights Codes, provincial or federal, are civil
law amendments and have no effect on the criminal code. What was illegal
before these amendments were passed, remains illegal today. In fact, Canada
has gone further than most countries in trying to ensure that the criminal
code is blind to gender and sexual orientation.
Do these Human Rights amendments make it more difficult to protect
children from abuse?
No. Children are protected from abuse by adults by the age of
consent laws in the criminal code. These amendments have no effect on the age
of consent. The sexual abuse of children is a societal problem. Using this as
an excuse to persecute gays and lesbians distracts from the task of
protecting those at risk. Statistics on child abuse from such reliable
sources as Statistics Canada and the FBI indicate that children are in no more
danger from gays and lesbians than they are from heterosexual adults. Most
child abuse is carried out by heterosexual males, often family members of the
victim, and the most common form of this abuse is male adults abusing female
children. Denying gays and lesbians custody, or employment in sensitive
areas as a way of preventing child abuse merely creates a false sense of
security. Most child abusers have psychopathic personalities and are highly
manipulative - usually choosing their victims with great care, typically
isolated children or young persons unlikely to be taken seriosuly if they
report the abuse. Such people are very difficult to detect, and rarely
identify themselves by announcing their sexual preferences - they often
carry on their abuse for years undetected. This is where the energy expended
on keeping gays and lesbians away from children should be expended if this
societal problem is to be tackled effectively and children are to be truly
protected.
Will federal legislation make same-sex marriage legal?
This is very unlikely, and indeed, is not something most the gay and
lesbian organizations want. The model legislation in this matter is that
passed in Denmark in 1992. This allows gay and lesbian couples to register
their status as couples, and grants them the same RIGHTS and
RESPONSIBILITIES as common-law heterosexual couples. In Denmark gay and
lesbian couples are still denied the ability to adopt children (even the
children of one partner cannot be adopted by the other). In Canada, such a
change in the law would mean that gay and lesbian couples would have the same
rights as heterosexual couples to arrange and dispose of their joint property
through inheritance, for instance. It would also mean that a couple separating
would have to observe the same legal provisions as common law couples in the
division of property and joint financial matters. On the adoption issue, no-
one has the RIGHT to adopt - all couples or individuals are carefully vetted
for suitability. Gays and lesbians can adopt provided they meet standard
criteria, but can only apply as single persons (another special status!).
Will these legislative changes encourage gays and lesbians to bring up
children?
This depends on what is meant by encourage . Many gays and
lesbians have families, or are bringing up children, either as single parents,
or in stable couples. In fact, such legislative changes may help those gays
and lesbians who wish to form stable relationships, and those who already have
children will receive the help they need to bring them up in stable families.
As for encouraging more gays and lesbians to have children, this is unlikely -
most gays and lesbians who have children have them because of previous
heterosexual marriages. Though some lesbians have had children through
artificial insemination, changes in the law affecting this area have made this
route more difficult - not that it was ever an easy way to have children. As
ever, the easiest way to have children is to have a heterosexual relationship
- the reltionship need only last minutes, no-one will vet the adults concerned
for suitability as parents, or assess the family unit for its stability or
dysfunctionality!
Will churches have to recognise and perform same-sex covenants?
No. In most provinces, religious organizations have specific
exemptions from the provisions of the Human Rights Code. Even in those
provinces (like NB) where this is not the case, there can be no compulsion as
religious beliefs are also protected under the same codes. In churches like
the Roman Catholic and Anglican, policy changes and decisions are made at the
highest level and are unlikely to change - in those churches with
congregational democracy, like the United Church, it will depend on the wishes
of individual congregations. Some churches already perform and recognize
same-sex unions - called blessings, covenants or even marriages, such as the
Metropolitan Community Church and some United Churches. Same-sex unions are
not legal marriages.
Why should human rights legislation protect a life-style , when most other
categories covered are not voluntary differences?
This is an argument frequently used by religious or political
organizations lobbying aganist these legislative changes. While it is true
that such characteristics as skin colour or sex are inherent differences and
the jury is out on whether sexual orientation is genetic or not, this is an
irrelevant distinction. Human Rights Codes rightly protect freedom of
religion, yet no-one would argue that religious belief is an inherent
characteristic or genetically predetermined. Life-style is a buzzword
appropriated by these religious and political groups in order to trivialize
this issue. As there is no more a gay lifestyle than there is one
heterosexual lifestyle , the matter is largely irrelevant, other than as an
exercise in inflated rhetoric.
Won't this sort of legislation promote homosexuality?
The term promote is a favourite of those organizations opposing
this sort of legislation, along the lines of we don t wish to see these people
persecuted, but let s not promote their lifestyle . Aside from the fact that
one lifestyle is not involved here, it is very hard to see how anyone intends
to promote homosexuality - after all it is not a commodity that can be sold
door-to-door, or a subject for telemarketing! In fact, promote here is a
code-word for the older recruit , a simple playing to a widely held fear that
gays and lesbians recruit young people by seducing them. Twenty years ago
ignorance was a valid excuse for pushing this myth - today the only motive is
malice and an eye for the political or financial main-chance. When all rational
arguments fail the bigots turn back to their time-honoured slogan The queers
are after your children . If this slogan were a comment against named
individuals the law would regard it as defamatory.
HUMAN RIGHTS CODES AND YOU
If all members of our society behaved towards their fellows as though
they were equal in the eyes of the law, God or each other, there would be no
need for human rights codes. The dignity and worth of each individual would
be apparent to all. Unfortunately we do not live in such a society. Instead
we live in a society that seems to need to be able to look down on some
minority or other, where politicians win votes by appealing to prejudice, where
newspapers sell copy by scapegoating despised groups, where columnists make
a living appealing to hatred, and some churches find it financially lucrative
to preach hatred and fear.
Churches and humanists, from the authors of the Biblke, Torah and Koran to the framers of the US Bill of Rights, the UN Human Rights Charter and the Canadian Charter of Rights all stress the inherent worth and dignity of human beings. Churches and liberal democracies alike also recognize the limitations of human beings in living up to those same high principles. That is why in most democracies constitutions and human rights codes protect minorities from the prejudice, fear and hatreds of the majority. Equality before the law is a fundamental principle of all democracies, and Canada is one of the more high evolved democracies around. Human rights belong to everyone, simply by reason of their being human.