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Sexual Orientation and Human Rights

Legal Protection | PT legislation | International | Other resources

Throughout the world, sexual relationships between persons of the same gender have often been the cause for discrimination by state law and society.

In Canada, before 1969, same-sex practices between consenting adults were considered crimes punishable by imprisonment. That year, the Canadian government passed an omnibus bill decriminalizing private sexual acts between two people over the age of 21 — a breakthrough in treating gay men, lesbians and bisexuals equally under the law.

Almost ten years later, in 1977, Québec became the first jurisdiction in Canada to amend the province's Charter of Human Rights to include sexual orientation as a prohibited ground for discrimination.

Legal Protection

The Canadian Human Rights Act bans (or proscribes) discrimination, including the unequal treatment of gay men, lesbians and bisexuals. In 1996, it was amended to explicitly include sexual orientation as one of the prohibited grounds of discrimination. This inclusion of sexual orientation in the Act was an express declaration by Parliament that gay and lesbian Canadians are entitled to "an opportunity equal with other individuals to make for themselves the lives they are able and wish to have..." (Section 2). The Canadian Human Rights Commission , which is responsible for monitoring the implementation of the Act, provides further information about human rights and sexual orientation. Complaints, progress and other activities are all included in the commission's annual reports .

Section 15 of the Canadian Charter of Rights and Freedoms states that every individual is to be considered equal regardless of religion, race, national or ethnic origin, colour, sex, age or physical or mental disability. In Egan v. Canada, [1995] 2 S.C.R. 513 , the Supreme Court of Canada held that although "sexual orientation" is not listed as a ground for discrimination in section 15(1), it constitutes an analogous ground on which claims of discrimination may be based. In Vriend v. Alberta, [1998] 1 S.C.R. 493 , the Court held that provincial human rights legislation that omitted the ground of sexual orientation violated section 15(1).

In 2002, the Quebec Superior Court (Hendricks v. Canada, [2002] J.Q. No. 3816 (S.C.) and the Ontario Superior Court (Halpern c. Canada (A.G.) (2002) O.J. 2714 ) , ruled that denying same-sex couples the equal right to marry is unconstitutional, and gave the federal government two years to correct or enact new legislation. In May 2003, the Court of Appeal of British Columbia (Barbeau v. British Columbia (Attorney General), 2003 BCCA 251) overturned a ruling of the province's Supreme Court that said marriage should be restricted to heterosexuals. This ruling gave the federal and provincial governments until July 12, 2004, to review and revise legislation to accord with its decision.

On June 10, 2003, the Ontario Court of Appeal upheld the decision in Halpern that the common law definition of marriage offends same-sex couples' equality rights under section 15(1) of the Charter in a manner that cannot be justified in a free and democratic society. According to this ruling, the remedy that best corrects the inconsistency is to declare invalid the existing definition of marriage to the extent that it refers to "one man and one woman" and to reformulate the definition of marriage as "the voluntary union for life of two persons to the exclusion of all others". Prime Minister Jean Chrétien stated on June 17 that the federal government "will not be appealing the recent decision on the definition of marriage. Rather, we will be proposing legislation that will protect the right of churches and religious organizations to sanctify marriage as they define it. At the same time, we will ensure that our legislation includes and legally recognizes the union of same sex couples."

Provincial and Territorial legislation

Most provinces and territories have included sexual orientation in their human rights legislation as a prohibited ground of discrimination. More information is available at the following Web sites:

Alberta
• Alberta Human Rights and Citizenship Commission (Page on sexual orientation )

British Columbia
• Human Rights in British Columbia - Fact sheet

Manitoba
• Manitoba Human Rights Commission (Fact sheet on sexual orientation

New Brunswick
• New Brunswick Human Rights Commission

Newfoundland and Labrador
• Newfoundland and Labrador Human Rights Commission

Northwest Territories
• Fair Practices Office

Nova Scotia
• Nova Scotia Human Rights Commission (Page on sexual orientation

Nunavut
• Government of Nunavut

Ontario
• Ontario Human Rights Commission (Page on sexual orientation )

Prince Edward Island
• Prince Edward Island Human Rights Commission (Fact sheet on sexual orientation )

Quebec
• Commission des droits de la personne et des droits de la jeunesse

Saskatchewan
• Saskatchewan Human Rights Commission (Page on sexual orientation )

Yukon
• Yukon Human Rights Commission

International recognition

Although international human rights instruments do not explicitly recognize sexual orientation as a prohibited ground for discrimination, the United Nations Human Rights Committee held in a decision in 1992 that the reference to "sex" in article 2 (paragraph1) and article 26 of the International Covenant on Civil and Political Rights is to be interpreted as including sexual orientation. [CCPR/C/50/488/1992]

Also, the United Nations High Commissioner for Refugees (UNHCR) has recognized that "homosexuals may be eligible for refugee status on the basis of persecution because of their membership of a particular social group. It is the policy of UNHCR that persons facing attack, inhumane treatment, or serious discrimination because of their homosexuality, and whose governments are unable or unwilling to protect them, should be recognized as refugees". (1)

Other Resources

Departmental publications

Published by Canadian Heritage, in partnership with Parks Canada, the Out and About [HTML|PDF] brochure focuses on the rights and well-being of gay, lesbian, bisexual and transgendered persons in the workplace.

Canadian organizations

• EGALE Canada (Equality for Gays and Lesbians Everywhere) has contributed to advancing gay and lesbian equality issues by pressing for the addition of sexual orientation as a prohibited ground for discrimination under the Canadian Human Rights Act and intervening in front of the Supreme Court of Canada for the recognition of same-sex relationships.

• The Foundation for Equal Families (FFEF) acts as an intervener in cases dealing with same-sex relationships. FFEF provides funding for court challenges, and education on legal issues.

• LAMBDA Education Research Foundation is a non-profit organization in Edmonton. It promotes research into gay and lesbian issues and lifestyles for the purpose of public education. Developed on the principle that sexual orientation does not matter, the philosophy of the organization is to foster non-discrimination by refuting negative stereotypes and misconceptions.

International organizations

• The International Gay and Lesbian Human Rights Commission (IGLHRC) aims to protect and advance the human rights of all people and communities that are subject to abuse or discrimination because of sexual orientation, gender identity or HIV status.

• Founded in 1978, the International Lesbian and Gay Association "Founded in 1978" (ILGA) has 350 member organizations. It works to focus public and government attention on cases concerning discrimination against lesbians, gays, bisexuals and transgendered people. The Association provides programs and information and lends support to protests.

• Amnesty International USA's OUT front provides support and information about human rights and sexual orientation. It addresses both the systemic violation of gays' and lesbians' rights by government authorities, and discrimination, harassment and violence from other sources in society.