A lesbian phys ed teacher was fired after 19 years when the Catholic school board she worked for found out she was a lesbian.
The teacher worked in Columbus, Ohio. Her sexual orientation came to light after her mother's obituary mentioned her female partner. After a complaint from a parent who read the obituary, the diocese fired her, saying she had "violated the school's moral policy".
Could it happen in B.C.?
Shockingly, the answer is 'yes'. Though such treatment is discriminatory, the Catholic employer gets off the hook under a provision in the B.C. Human Rights Code which exempts non-profit groups who exist to serve people on the basis of their race, religion, gender, sexual orientation etc (any ground protected under the Code) from complying with human rights laws.
That's how Rape Relief is able to exclude transsexual women. We are a non-profit, we are here to serve women, so we are free to discriminate if we want to, they argued. They won.
So too did the Catholic Church win in a 1983 decision in which they fired a school teacher (heterosexual) because she was living with a partner outside of marriage. The Supreme Court of Canada said that the provision of the Code gave them a licence to discriminate.
The provision of the Code was intended to prevent men from complaining that they can't get services from women's groups, or non native people from complaining that they can't get service from an aboriginal friendship centre, for example. But it is jaw-droppingly wrong that such organizations are entitled to discriminate among the population they exist to serve.
Under the law as it is written, a disability rights group could turn away someone with AIDS; a women's group could exclude women of colour...the list goes on.
An individual has a duty to advise a sexual partner if the individual is HIV+. If they fail to advise their partner of their HIV+ status, they can be charged with sexual assault or even aggravated sexual assault.
What if a lawyer learns that her client is HIV+, something that the police and prosecutors don't know? In a recent case, an Ontario court held that a lawyer had a duty to disclose that status, even though her client's communication with her was protected by solicitor/client privilege. Solicitor client privilege does not apply if disclosure of a client's confidential information would prevent a crime. The court held that this rule applies, and the lawyer correctly disclosed her client's confidential information about their HIV status to the Crown prosecutor. To watch an interesting video about this case, go to http://www.lawtimesnews.com/videos/hiv-and-the-law.
The case is a worrying one. On the one hand, it is hard to argue against protecting prospective sexual partners of an individual from having sex not knowing of the client's HIV status. On the other hand, if HIV+ clients cannot tell their lawyers of their sero-status without risking disclosure to the Crown or the police, no HIV+ person would ever disclose their status to their lawyer. In turn that means that an HIV+ person is denied access to legal advice and representation, since their lawyer cannot advise them properly without all the facts.
In two other cases, the Supreme Court of Canada ruled on October 5 about what a person's duty is to her or his sexual partner if she or he is HIV+. The underlying principle is that you cannot truly consent to have sex with someone, if they are HIV+ and have not told you. The failure to disclose vitiates your consent to the sexual act, and can turn consensual sex into sexual assault.
The Supreme Court of Canada says in its October 5 decisions ( R. v. Mabior  S.C.J. No. 47 and R. v. D.C.  S.C.J. No. 48) said that an accused does not have to disclose his or her HIV status if there is a low risk of transmission for HIV - for example, where a person has a low viral load AND uses a condom. The conviction of one of the accused was overturned in the case in which he had a low viral load and used a condom; but permitted to stand in the case where he had a low viral load but did not use a condom.
Defence lawyers are concerned because the ruling appears to put an onus on the accused to show that he or she had a low risk of transmitting HIV when he or she had sex. It is a basic principle of criminal law that the Crown has to prove that a person committed a crime, and 'reverse onus' provisions such as this generally offend the Charter rights of an accused individual.
The takeaway lesson? If you are HIV positive, do the following: 1. Get your doctor to tell you whether or not you have a low risk of transmitting the virus. That way, you can later show that you had an honest and reasonable belief that your risk of transmission was low. 2. ALWAYS use a condom. 3. To be on the safest side, or i...tell your partner you are HIV+.
The United States Food and Drug Agency has just approved the first at-home test for HIV. The over-the counter test, based on a saliva swab, will deliver results in 20-40 minutes.
Meanwhile the BC project to offer HIV testing to everyone admitted to hospital continues. BC leads the country in this initiative, the purpose of which is to identify HIV+ people who may not otherwise get tested.
Generally speaking, people who are HIV+ are inadmissible to Canada because their illness will result in a disproportionate burden to Canada's health care system. In fact, if a person has any illness which will probably cost more than an average Canadian costs in health care dollars over the next five years, he or she is "medically inadmissible".
But in Ovalle v Canada the Federal Court has said that if the immigrant can show that he has another way to fund his medical care, he is not 'medically inadmissible'.
In Ovalle v Canada  FCJ No 523, Mr. Ovalle had demonstrated that although he was HIV+ and would require about $18,000 per year in care, he would not cost the Canadian health care system disproportionately. His doctor said he would probably enjoy good health for the next 5-10 years. A non-profit group called "Aid for AIDS International" said it would provide free antiretroviral medication even after Mr. Ovalle moved to Canada. Mr. Ovalle's prospective Canadian employer said he would be covered under the firm's health care plan for at least $1500 per year. Mr. Ovalle agreed to assume responsibility for the social services he would need in Canada.