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Common law partners don't suffer social disapproval any more; so can't claim same financial regime as married partners, says SCC

1/19/2014

The Supreme Court of Canada has held that common law partners do not experience disadvantage in Canadian society any more, and so they cannot claim that their equality rights are breached in comparison to married people.
The result is that a Quebec common law partner who broke up with her spouse cannot succeed in her claim to have the same laws applied to her as are applied to married or civil union partners when they break up.In Quebec v A, A had argued that her equality rights under the Charter of Rights were infringed, because when she broke up she could not claim a division of property or spousal support as people who were married or in a common law relationship could do. To succeed, she had to show that common law partners suffered disadvantage and that the exclusion from the law contributed to the continuing stereotype or disadvantage. The Supreme Court of Canada said that although there was a period of Quebec history during which de facto (in fact, rather than married) spouses were subjected to both legislative hostility and social ostracism, nothing in the evidence suggests that de facto spouses are now subject to public opprobrium.
This has been one of my more confused/confusing posts. Here's the thing: (1) yes, in B.C. common law and married partners, (including same sex) have EXACTLY the same rights and responsibilities - as they should - but in PQ the situation is different. They enacted a 'domestic partnership' regime which lets people essentially sign up for common law status (I call it 'marriage light' ). This case was brought by people who were neither married nor in a domestic partnership. Personally, I think the SCC got it wrong, because I don't think prejudice against people who are "not really married" is over by a long shot. And I think people kind of 'slide into' living common law: they get together, decide to live together...then maybe have children...then... find the relationship ending with no rights attached. The flip side though is that such a relationship ends with no responsibilities attached. For every ending, one partner wishes they did, and one is glad they don't, have a regime like a marriage regime governing the financial aspects of their breakup. NOTE: in BC you 'become' common law after you have lived together for 2 years. In Ontario, it takes 3 years; federally, it takes 1 year.

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Remember the Charter of Rights? Not so fast...

9/14/2013

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The Canadian Charter of Rights and Freedoms, enacted in 1982, has become a cultural touchstone, guaranteeing that Canada is a place of freedom, respect, and equality.
Right?
Two events this week underscore the Charter's weaknesses. The first is an . underreported court case in Ontario, Tanudjaja v Canada. In that case, a coalition including B.C.'s Pivot Legal Services argued that the Charter imposed an obligation on the federal and provincial government to ensure that affordable, adquate and accessible housing is available for all Ontarians and Canadians. The coalition argued that section 7 of the Charter, a guarantee of of "life, liberty, or security of the person" imposed that obligation.
The case was thrown out as soon as it was filed, before any evidence was heard. The court said that the Charter imposes no positive obligation on governments to do anything. If the government gets into the affordable housing business, it must do so in compliance with the Charter which among other things guarantees equality. But the government has no obligation to get into the affordable housing business if it doesn't want to.
So your 'right' as a Canadian to "life...and security of the person" doesn't include the right to eat, or be sheltered.

The second event - this one all over the news - is Quebec's intention to introduce a "Charter of Values" which would prohibit the wearing of some religious symbols (all except Catholic crucifixes, in fact) if you work in the public sector - government, hospitals, educational institutions.

This law does contradicts the guarantee of 'freedom of religion' and the guarantee of 'freedom of expression' in both the Canadian Charter of Rights and Freedoms and Quebec's own Charter of Rights and Freedoms.

Courts have consistently upheld the rights of religious minorities: for example in Multani, a affirming that Sikh boys could wear kirpans (a religious symbolic metal knife worn under clothing) to school; and in Amselem, permitting Jews to erect succah, a small ritual dwelling, on their balconies notwithstanding a rue of the luxury condo where they lived that prohibited balcony structures.

Queers have objected, unsuccessfully, that 'freedom of religion' should not be a licence to discriminate against queers just because they 'sincerely believe' that being queer is a sin. In Trinity Western, for example, queers lost an argument that the Christian College should be refused accreditation as a teacher's college because it required all students to sign a contract agreeing not to engage in sexual 'sins' including homosexuality.

So it seems obvious that Quebec's 'Charter of Values' would be thrown out because it contravenes the Charter of Rights. Because the Charter of Rights is part of the Constitution of the country any other law that conflicts with it can be declared null and void.

Right?

Not necessarily.

The Quebec government can throw in a 'notwithstanding' clause. Any government is permitted to enact a law which they know contradicts the Charter of Rights if they include a section that says the law is valid notwithstanding the Charter. If the 'notwithstanding' clause is included, the Quebec Charter of Values would be good for five years, after which it would have to be reenacted. Governments have to think twice about using the notwithstanding clause, because they know that every five years they will have to pay the political cost of enacting a Charter -violating law.

We queers must stand firmly with the religious minorities in Quebec, even though 'religious freedom' is often pitted against queer rights. Because what is at stake is our country's very soul. Unless we all recognize that conflicts among rights - religious freedom and queer rights, or any other conflict - must be settled by the courts, we will inevitably end up with the shameful spectacle of governments enacting legislation designed to hurt minorities just to get votes. And when that day comes, we will be among the minorities targeted for legislated bigotry.

The Canadian Charter of Rights and Freedoms is deeply flawed because it does not even pretend to address the worst inequalities among Canadians - the inequalities created and perpetuated by poverty. And the Charter is fragile: if ever it becomes politically acceptable to tack the 'notwithstanding' clause onto any piece of legislation which is currently in favour, all of our Charter rights will succomb.

But, as minorities of any kind - sexual, racial, religious, disabled, immigrant, women (though not a minority!) the Charter is all we've got.

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Happy Day in the U.S.of A!!

6/26/2013

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Today is a big day for U.S. queers.

The U.S. Supreme Court today ruled against the "Defence of Marriage Act", a federal law which provided that same sex partners could not get federal spousal benefits even if they lived in a state where same sex marriage was permitted, and had married.

The case began when Edith Windsor's partner, Thea Spyer died. The two had married in Canada in 2007, after being engaged for forty years.

Yes, forty years.

After her partner passed away, the federal government ruled that she had to pay more than $300,000 in additional estate taxes because the federal government did not recognize Windsor's marriage to Spyer.

Windsor, now 84, celebrated her victory along with the rest of the country.

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Trans Rights Bill Passes In House of Commons

3/22/2013

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Gender Identity added to Federal Laws

Yesterday, the House of Commons passed a law adding ‘gender identity’ to the list of protected grounds under the Canadian Human Rights Act and the Criminal Code.

NDP MP Randall Garrison introduced the legislation as a private member’s bill. In his version, the words ‘gender identity and gender expression’ would have been added to both laws.

But in the process of getting the law passed, compromises were made. The law now extends only to ‘gender identity’, and that term (unlike other prohibited grounds) is defined. The definition says “gender identity” means, in respect of an individual, the individual’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex that the individual was assigned at birth.

The result of the amendments is two fold. Though trans people have been consistently successful complaining about discrimination under the Canadian Human Rights Act on the grounds of ‘sex’, the addition of this new ground makes it visible to everyone that trans people are protected. That is an important public education function.

The second protection for trans people is in the ‘hate crimes’ section of the Criminal Code. That section provides for increased sentencing where it can be shown that a crime was motivated by bias, prejudice or hatred against an identifiable group. ‘Gender identity’, defined in the same way as in the Canadian Human Rights Act, has been added to the list.

The change to the Criminal Code is important, but applying it is sometimes a problem, since assailants do not necessarily shout “I am beating you up because of your gender identity!” Unless there is some evidence that that was the motive, courts have not used the sentencing provisions much.

The bill will not take effect until it is considered by the Senate (who can amend it) and given royal assent.

You can find the full bill at http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=6053237

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Trans Legal Defense and Education Fund sues Colorado School

3/1/2013

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In British Columbia, some public schools do and some do not accommodate trans youth. Roman Catholic school system does not, though this is currently being challenged in a human rights proceeding.

This report from the Transgender Legal Defence and Education Fund:
Complaint Alleges Six-Year-Old Transgender Girl Denied Access to Girls' Bathrooms at School

TLDEF today announced that it has filed a complaint with the Colorado Civil Rights Division on behalf of a 6-year-old girl who has been barred from using the girls' bathrooms at her elementary school. For the past year, Coy Mathis, a first-grader at Eagleside Elementary School in Fountain, CO, has used the girls' bathrooms. In mid-December 2012, the Fountain-Fort Carson School District 8 informed her parents that Coy would be prevented from using the girls' bathrooms after winter break. The District ordered Coy to use the boys' bathroom, a staff bathroom, or the nurse's bathroom.

Coy was labeled male at birth, but has always known that she is a girl, and has expressed this since she was 18 months old. Since kindergarten, Coy has worn girls' clothing to school. Her classmates and teachers have used female pronouns to refer to her and she has used the girls' bathrooms, just like any other girl in her school.

The Colorado Anti-Discrimination Act prohibits discrimination against transgender students in public schools. Despite efforts to get the District to reconsider its decision, it has refused to do so. Coy's parents have removed her from school and are home schooling her until this Complaint is resolved.

"We want Coy to have the same educational opportunities as every other Colorado student," said Kathryn Mathis, Coy's mother. "Her school should not be singling her out for mistreatment just because she is transgender."

"By forcing Coy to use a different bathroom than all the other girls, Coy's school is targeting her for stigma, bullying and harassment," said Michael Silverman, TLDEF's executive director, and one of Coy's lawyers. "Through the Colorado Anti-Discrimination Act, Coloradans have made it clear that they want all Colorado children to have a fair and equal chance in school," he added. "Coy's school has the opportunity to turn this around and teach Coy's classmates a valuable lesson about friendship, respect and basic fairness."

"We have five children and we love them all very much," said Mrs. Mathis. "We want Coy to return to school to be with her teachers, her friends, and her siblings, but we are afraid to send her back until we know that the school is going to treat her fairly. She is still just six years old, and we do not want one of our daughter's earliest experiences to be our community telling her she's not good enough."

In addition to TLDEF, the legal team representing the Mathis family includes Michael Flynn, Lucy Deakins, Jami Mills Vibbert, and Rosario Doriott Dominguez of Fulbright & Jaworski L.L.P.

For the latest information on Coy's case, including upcoming media appearances, please follow us on Twitter and "like" us on Facebook. We'll be posting the latest information there first.

Click for a slideshow of Mathis family photos.

Please donate today to help us fight for Coy's rights and the rights of children like her. Your support is critical to achieving a victory for Coy and transgender people everywhere.

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No to Hate Speech about Queers, says Supreme Court of Canada (but...)

2/27/2013

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The Supreme Court of Canada today issued an important decision about hate speech directed at queers.

The background to the case concerned four documents: two flyers, one called "Keep Homosexuality out of Saskatoon's Public Schools!" and "Sodomites in our Public Schools"; and two flyers which were the reprint of a classifed ad with handwritten comments added.

Under the Saskatchewan Human Rights code, it is illegal to circulate publications which "expose a person to hatred and ridicule" on a protected ground - here, sexual orientation.

So the big question for the court was: where does prohibited hate speech end, and where does freedom of speech begin?

The Supreme Court of Canada analyzed what a publication must be like in order to contravene the hate speech provisions. It said that there must be three main elements. First, the person judging whether the publication contains hate speech must do so from an 'objective' point of view, asking themselves whether a 'reasonable person, aware of the context and circumstances, would view the expression as exposing the protected group to hatred'. (In other words, you cannot only ask queers what they think about that question). Second, it is only hateful and contrary to the protections in Saskatchewan's human rights legislation if it is really hateful...in the sense captured by the words 'detestation' and 'vilification'. It's not hate speech just because it is repugnant or offensive. And finally, the decision maker must look to see what the effect of the hate speech is: is the probably effect that it will expose the targeted person or group to hatred by others?

The complainants had argued that the section of the human rights law under which they had been convicted was a breach of their constitutionally protected right to freedom of speech. True, said the Supreme Court of Canada: but, your right to freedom of speech has to be balanced against the right to be free from speech which is likely to cause hatred; and in this case, most of the human rights law is appropriate and impairs one's freedom of speech minimally.

Part of the Saskatchewan human rights legislation outlawed speech which "ridicules, belittles or otherwise affronts the dignity of" a person. That part of the law, said the Supreme Court of Canada, is too broad. And they struck it down.

This case has been long-awaited. Queers have been holding our breath to see whether the Supreme Court of Canada would uphold our right to be free from malicious homophobic speech, or whether once again our rights would be seen as subordinate to someone else's rights to free speech, or freedom of religion.

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Common law partners don't suffer social disapproval any more; so can't claim same financial regime as married partners, says SCC

Remember the Charter of Rights? Not so fast...

Happy Day in the U.S.of A!!

Trans Rights Bill Passes In House of Commons

Trans Legal Defense and Education Fund sues Colorado School

No to Hate Speech about Queers, says Supreme Court of Canada (but...)

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