Equality and Human Rights
In Canada, we have excellent legal protection against discrimination in the law, because of the Canadian Charter of Rights and Freedoms. The equality section of the Charter 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. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. Notice those words ‘and in particular’. The court has held that those words mean that groups of people who have historically been discriminated against can be added to the list of prohibited discrimination. In that way, ‘sexual orientation’ was added to the list of Charter-protected categories. Once the Supreme Court of Canada held that ‘sexual orientation’ was protected under the Charter, all the governments of Canada were forced to change laws that did not recognize lesbians, bisexual people and gay men. For example, government benefits available to spouses had to be extended to same sex partners. Immigration law had to be changed to permit lesbians bisexual people and gay men to sponsor their non-Canadian partners. And finally, marriage law had to be changed to permit same sex marriage. Transgender and intersex people have not yet taken a Charter case, but they have been consistently successful under human rights legislation by arguing that discrimination against a trans person is discrimination on the basis of sex. The same would probably hold true under the Charter. That would mean that it would be possible to challenge laws that discriminate against trans people. We are currently involved in two challenges: one, to have M and F removed from passports – because those laws expose trans people to danger especially if their gender marker is different than their photograph – and another one to challenge the Transport Canada regulations that require an airline to refuse to board someone who does not look like the gender marker on their identity documents. We believe that if there is a photograph, it is unnecessary, redundant, and dangerous to trans and other gender queer people to insist that there be a gender marker on their identity documents. “Charter challenges” as those cases are called, are expensive because it is necessary to file a court case. One of our court cases was a challenge on behalf of B.C. Native Women’s Society. Women on reserve who got divorced did not get a division of the matrimonial home, as they would have done if they lived off the reserve. The reason is that on reserve land is held by ‘certificate of possession’ which cannot be sold or divided. After our court case, the government has moved to remedy this inequality. Another Charter challenge in which we participated was the B.C. marriage case. Three cases were brought more or less simultaneously, in B.C., Ontario, and Quebec. The ultimate result is that same sex marriage is now legal in all parts of Canada. For a sense of how the courts have treated issues of sexual orientation and transgender issues, see the chronology of queer case law. And for a description of some specific ways the law applies to trans people, see The Charter applies to laws, or to government actions. In the private sector, human rights law applies. It is discriminatory to deny goods and services customarily available to the public, or to treat someone differently at work, or to refuse to rent them a place to live, on the basis of grounds listed under the B.C. Human Rights Code or the Canadian Human Rights Act. (Which law applies depends on whether you are dealing with a provincial or a federal issue). Interestingly, human rights law can also be used to challenge governments if they are employing someone, or providing a service customarily available to the public. For example, we were successful in arguing that it was discriminatory to refuse to put a co-mother’s name on her child’s birth certificate. In a world-first case, the human rights tribunal held that the Vital Statistics Agency had to permit co-mothers to register on the birth certificate where the child was conceived by donor insemination. Since then, the Vital Statistics Registry has been amended to permit any two parents to register on a child’s birth certificate. Trans people have won almost every human rights case they have brought, in every province. Most of the cases have been brought on the ground of ‘sex’. B.C. and Canada do not have ‘gender identity’ as a protected ground; but still trans people have been successful. The first BC trans case concerned a transwoman who was denied the use of the women’s washroom in a gay bar. She was successful in that complaint. However she lost a later complaint against the same bar when the bar said that they refused her because she did not look like the photo on her ID. Federally, we were successful in requiring the federal government to provide sex reassignment surgery to transsexual inmates while they are incarcerated. There are two major areas where trans people have been unsuccessful. The first is in requiring governments to list all medical procedures transsexual people require as covered under provincial health plans. The second is that trans people are not permitted to participate in women’s groups, if the women’s group does not want to admit trans women. However, notwithstanding that trans women cannot insist on being included in women’s groups, almost every women’s group in British Columbia now has a trans-inclusive policy as a result of the case that Kimberly Nixon brought against Rape Relief. Although Kimberly lost the battle, transwomen won the war as the result of her bravery in taking her case forward to the human rights tribunal and ultimately to the B.C. Court of Appeal. We have taken all manner of human rights and Charter challenges, on the basis of sex, race, disability, sexual orientation, and other grounds. Human rights protection extends to the protection of workers in the workplace, because being harassed as a lesbian, or because you are disabled, or trans, etc., is an offence under human rights legislation. Out/Law Pamphlets Sexual Orientation and Gender Identity in Residential Care Facilities A draft policy Transgender people and employment Articles Working OUT REAL Women Transgender women in Canadian prisons |
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| barbara findlay Q.C. |
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