Queers in Canada are protected from discrimination by the constitution of the country, and our human rights are protected by the constitution.
The story follows a winding road. The Canadian Charter of Rights and Freedoms was enacted as part of the Constitution of Canada when the constitution was repatriated from Britain in 1982. Section 15 of that Charter protects Canadians from discriminatory laws. It says:
15. (1) 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.
Though lesbians and gay men lobbied hard for the inclusion of sexual orientation in section 15, it was only 13 years since homosexual conduct was removed from the Criminal Code, and the framers of the Charter could not be persuaded.
But all was not lost. The Supreme Court of Canada ruled early on that because the wording of section 15 says 'every individual is equal … without discrimination and, in particular, without discrimination based on race…etc' the list of prohibited grounds could be added to, if a person could show that she was a member of a group that had suffered historical disadvantage in Canada.
In Egan v Canada, a case decided in 1995, the Court ruled that 'sexual orientation' is a ground protected from discrimination under the Charter of Rights. With that momentous decision, lesbians and gay men gained legal protections available in only two other countries in the world: Holland and South Africa.
The vastly important consequence of that decision is that any law or policy or program of a government or a government body that has as an intention or as an effect the lesser treatment of lesbians and gay men can be challenged and struck down. The Charter applies to public policy as expressed in laws and policies of government.
At the time that Egan was decided, some but not all of the human rights codes in the country included protection from discrimination on the basis of sexual orientation. Human rights codes apply to the private sector. They typically protect against discrimination in the provision of goods or services customarily available to the public, in tenancies, and in employment.
Alberta emphatically did not want to protect queers in its human rights legislation. By a deliberate choice of the legislature, 'sexual orientation' was omitted from the list of grounds protected by the Charter.
Delwin Vriend, a gay man employed by a catholic school in a non-teaching position, was fired when his employer learned he was gay. He filed a complaint with the human rights commission - which could not accept it, because there was no prohibition against discriminating against gay men or lesbians. So Vriend went to court, ultimately to the Supreme Court of Canada, and argued that Alberta's human rights legislation was itself discriminatory against lesbians and gay men, because it omitted protection for them from the list of grounds like race, sex, etc which were grounds protected from discrimination. That, argued Vriend, meant that the human rights law itself had the effect of increasing discrimination against lesbians and gay men, because the effect of the omission was to make it acceptable in Alberta to mistreat queers.
The Supreme Court of Canada agreed. Because the omission of 'sexual orientation' from the list of protected grounds exposed lesbians and gay men to discrimination, the law itself was contrary to the Charter, and therefore unconstitutional. With that remarkable decision, human rights protection for lesbians and gay men was extended to queers.
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