Sexual Orientation and the Road to Equality

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Article2020 | 02 | 13

Sexual Orientation and the Road to Equality

A straight line is always the shortest distance between two points, but the road to equality in terms of sexual orientation has not travelled that most direct route.  Finding our way anywhere new, particularly if the path is sometimes blocked by a need for social, cultural and legal change, takes time and perseverance.

While we have come a long way already, the journey continues, and this short paper is intended to highlight some of the stops on the path so far.  Things are better than they were (at least in some ways) but we still have a long way to go.

In 2011 (less than a decade ago) the United Nations Human Rights Council passed a resolution affirming how all human beings were equal, and expressing grave concern over the acts of violence and discrimination committed against individuals due to sexual orientation.  The resolution requested a study be completed to document discriminatory laws and practices and acts of violence, and how international human rights law could be used to end such violence and human rights violations.  Remarkably, there were only 23 votes in favour, with 19 opposed and three abstentions.

A current internet search suggests about 30-35 countries allow same-sex marriages.  In contrast, twice as many (about 70-75) still outlaw same-sex relationships altogether.  Reportedly, 6 of these countries effectively impose the death penalty on consensual same-sex activities between adults.

In Canada, the human rights legislation in every jurisdiction protects persons from discrimination based on sexual orientation.  Québec was the first province to do so, in 1977, and the most recent was Alberta in 2009.  Federally, this has been the case since 1996.

In Canada there has been an interesting evolution of thought (perhaps mirroring that in society generally) as shown by the Supreme Court of Canada over the last quarter century.

In 1995 the Supreme Court of Canada issued its decision in Egan v. Canada.  There, the court considered the rights of a gay couple who had been together for some 47 years.  One of the couple had turned 65 and began to receive old age security and guaranteed income supplements.  He applied for a spousal allowance.  This was refused as the applicable definition of spouse referred to a person of the opposite sex living with the person for at least 1 year, where the 2 publicly represented themselves as husband and wife.

The appellants were successful in the sense the Supreme Court did acknowledge that sexual orientation was an analogous ground to those matters expressly set out in section 15(1) of the Canadian Charter of Rights and Freedoms (and so could be considered a constitutionally provided equality right).  Overall though, the couple lost, as the Supreme Court held that Parliament was within its rights to determine which spouses were entitled to these economic benefits provided at Canada’s expense and discretion.  Initially the legislation had only provided benefits for married couples but that had expanded over time to include common-law couples.  It might expand in the future still further, and Canada could legally determine as a matter of policy who was eligible for such benefits.

In 1998 the Supreme Court of Canada (which had undergone some changes) issued its decision in Vriend v. Alberta.  There, the employee in question had been employed by a college in Alberta.  Due to his good work performance he received positive evaluations, salary increases and promotions.  In response to an inquiry by the president of the college, he was honest, and disclosed he was homosexual.  Shortly afterwards, the college requested his resignation.  He refused and was dismissed from employment, with the sole reason being his non-compliance with a college policy on sexual practices.

The employee appealed internally, lost, and then tried to file a complaint with the human rights commission on the basis he was discriminated against due to his sexual orientation.  The commission rejected his complaint because the legislation at the time in Alberta did not protect against discrimination based on sexual orientation.  Ultimately, the Supreme Court of Canada found that failing to include sexual orientation as a prohibited ground of discrimination breached section 15 of the Canadian Charter of Rights and Freedoms.  As a remedy, the court “read into” the legislation the requirement that persons were to be protected from discrimination based on sexual orientation.

This then was followed in 1999 by the Supreme Court of Canada’s decision of M. v. H..  In that case, a lesbian couple separated after many years of living in a same-sex relationship.  One sought financial support from the other pursuant to the provisions of Ontario’s Family Law Act and challenged the legislation on the basis that its definition of spouse did not contemplate same-sex relationships.

The court found the legislation to be discriminatory and not valid.  It chose not to read in as had occurred in the Vriend case as there were numerous provisions of the statute and related legislation that would require amendment as well.  The court instead declared the specific section in question to be of no force and effect, but temporarily suspended that declaration for 6 months so the Ontario Legislature could correct the various problems arising from the network of discriminatory legislation and make all amendments required.

In 2018 the Supreme Court of Canada issued its decision in Law Society of British Columbia v. Trinity Western College.  There, a Christian university in British Columbia wanted to open a law school.  The Law Societies of Ontario and British Columbia both refused to accredit the school due to a College–wide covenant required of students and faculty.  As a condition of attendance or employment, they had to “voluntarily abstain” from a number of actions, including “sexual intimacy that violates the sacredness of marriage between a man and a woman”.  The behavioural expectations set out in the covenant applied to conduct both on and off campus, and any violation could result in disciplinary measures including suspension or permanent expulsion.

The Supreme Court found that in reality most LGBTQ people would be deterred from applying to the law school due to the Covenant, because if they signed they would have to “live a lie to obtain a degree”.  As a result, the 60 law school seats to be created by the new law school were in practical terms closed to the vast majority of LGBTQ students.  This barrier was seen as inappropriate for discouraging qualified candidates from gaining entry to the legal profession.  Further, the Supreme Court noted that those those persons able to sign the Covenant would now be able to apply to 60 more law school seats per year throughout Canada, while those 60 seats remained effectively closed to most LGBTQ people, and so LGBTQ individuals would have fewer opportunities relative to others.  This undermined true equality of access to legal education, and by extension, the legal profession.

The Supreme Court found the 2 law societies were justified in refusing accreditation.  Interestingly, since the decision Trinity Western College has abandoned the requirement for students to sign the covenant.

While there are many other cases addressing these types of issues outside the Supreme Court of Canada, 2 of the most recent are noteworthy.

Firstly, in October 2019 the British Columbia Human Rights Tribunal issued a decision in Yaniv v. Various Waxing Salons.  There, a transgendered woman sought waxing services from various salons.  She sought waxing of her arms and legs, but also sought waxing of her genital area (which was male in nature).  Services were refused and ultimately human rights complaints filed and dismissed after hearing.

The Tribunal noted the onus was on the applicant to establish the respondents denied her a service which they customarily provided to the public, and that gender identity was a factor in that refusal.  Expert evidence established there were differences in terms of technique and education in waxing male and female genitalia.  The tribunal found it was not appropriate to lump all services under the generic heading of genital waxing as the job was different depending on the genital in question.  As the service providers did not offer waxing for male genitalia, to anyone, that part of the complaint was dismissed.

In terms of arm and leg waxing, on the evidence the Tribunal determined the complaint had been filed for improper motives and so dismissed that part of the complaint as well.  It found the predominant purpose of the complaint was not to prevent or remedy alleged discrimination, but rather to punish or injure.  Here, it seemed the complainant was using the human rights process as a way of not only fighting what she perceived as pervasive discrimination against transgendered women in the beauty industry but rather targeting certain small businesses for personal financial gain, motivated in part by a view that certain ethnic groups very prevalent in the industry were hostile to the interests of transgendered people.  It is worth noting however, the Tribunal would otherwise have held the refusal to provide arm and leg waxing as discriminatory and contrary to the legislation.

In December 2019 a Manitoba Human Rights Panel issued its decision in TM v. Government of Manitoba-Manitoba Justice.  There, an employee alleged that during the course of his employment at a youth centre he was subjected to some very serious verbal and physical harassment on the basis of his sexual orientation.  This took place over many years and despite bringing this to his employer’s attention, it failed to take reasonable action to intervene.

The effects of the abuse were significant.  The employee suffered from depression, anxiety and stress, requiring medication for treatment.

When after months of complaint the employer ultimately did conduct an investigation of sorts, the process was weak and unreasonable.  As an example, the specific and graphic nature of the allegations were not put to the witnesses and instead general questions were asked about “joking” or “bantering” in the workplace.  This was seen as an attempt by the employer to minimize the significance of the allegations.

The Tribunal found that the 19 month delay from the timing of the initial complaint until the employer took any action to address the concerns was not reasonable.  Also unreasonable was the employer’s failure to take any action to stop what clearly was occurring in the workplace.  It could have posted signs, sent out information, conducted workshops, had discussions with staff etc. in order to remind them about what was and was not acceptable conduct.  Instead, it did nothing and really in effect condoned the abuse.

Ultimately the Tribunal found the employer had breached its duties to act reasonably so as to prevent and stop harassment and discrimination within the workplace.  Amongst other things, it was ordered to obtain and implement an extensive course of training on harassment on the basis of sexual orientation, and to designate a respectful workplace advisor either by creating a new position or attaching that responsibility to an existing position.

The employee was ordered full compensation for all lost wages as well as compensation for injury to feelings, dignity and self-respect pursuant to the legislation.  To send a message to employers within Manitoba and particularly to confirm the importance of the obligations to address harassment once alleged in the workplace, damages of $75,000 were ordered for this.  To date, in Manitoba this is the largest amount ever awarded.  This decision is now subject to judicial review.

Jeff Palamar is the Leader of the Labour and Employment Practice Group at Taylor McCaffrey LLP, the Manitoba member of the Employment Law Alliance

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Jeff Palamar
Jeff Palamar