Equality on paper

Everyone’s talking about the 25th anniversary of the Canadian Charter of Rights and Freedoms, and how good it’s been to gay folks. It’s absolutely true: we have done better under the Charter than virtually any other equality-seeking group. But how much credit does the Charter actually deserve?

When it was first implemented in 1983, there weren’t many gay rights to speak of. Homosexuality wasn’t illegal but anal sex could still get you in trouble, and only Quebec prohibited discrimination on the basis of sexual orientation. In the rest of Canada, it was still perfectly legal to fire or not hire someone for being gay.

And legal recognition of same-sex relationships was non-existent.

Litigation in the early years of the Charter met with very mixed results. In one of the first cases, brought in Ontario, Karen Andrews challenged her partner’s exclusion from provincial health coverage. The court replied that spouse means heterosexual spouse–and besides, the judges said, there was no discrimination since a gay man or lesbian was just as entitled as anyone else to marry a person of the opposite sex.

But a similar challenge in British Columbia won, with the court declaring the opposite-sex definition of spouse in the provincial health law a violation of the Charter.

This was pretty much the pattern through the late 1980s and early 1990s: a patchwork of successes and failures, with no way to predict how a challenge would go. It became clear that the Supreme Court of Canada would have to resolve the question.

The first gay rights case to make it to the Supremes was Mossop in 1993. It was a bit of a bust.

Mossop was denied a bereavement leave to attend his partner’s father’s funeral, and argued that it was family status discrimination under the Canadian Human Rights Code (he could not argue sexual orientation since it wasn’t included in the Code until 1996). The Supremes said his leave denial wasn’t discriminatory, and that Mossop was really just trying to sneak ‘sexual orientation’ discrimination in the back door.

Next was Jim Egan’s challenge to the opposite-sex definition of spouse in the Old Age Security Act. For the first time, a majority of Supreme Court judges agreed that sexual orientation discrimination is prohibited by the Charter. They even agreed that “the spousal definition violates Section 15 equality rights.”

But a majority also considered that violation acceptable. In the legalese of the Charter, they ruled that the discrimination was a reasonable limit on equality rights. In other words, it may have been discriminatory to deny rights to same-sex couples but for the moment it was worth it to prevent the downfall of society and good government.

So you win some, you lose some and, overall, Egan lost.

The first clear victory only arrived with Vriend in 1998. The Supremes again ruled that sexual orientation is protected by the Charter. And this time they added that Alberta’s refusal to protect individual gay and lesbian folks from discrimination violated the Charter.

And then, in 1999, we get M v H, where the majority of the Court says that equality rights under the Charter also protect same-sex couples. It was the beginning of the end of discrimination against same-sex couples.

M v H paved the road to same-sex marriage, which arrives in Ontario in June 2003; British Columbia had already held that opposite-sex marriage was a violation of the Charter, but had delayed the remedy for a year.

Same-sex marriage spread rapidly across the provinces after that. In 2005, the federal government passed the Civil Marriage Act which made same-sex marriage the law of the land.

Charter victories? Absolutely.

There was a denial of pure, formal equality: outright discrimination against gay folks because they were gay; outright animus, hatred, dislike, often justified in the language of religion and tradition. If equality rights don’t protect against this kind of outright discrimination, well, they could hardly be worth the paper they were written on.

Gay rights were easy–from the point of view of formal equality doctrine. They weren’t easy from the point of view of politics. Because hating queer folks was still okay in the 1980s and for quite a while after that. It was only in the late 1990s that attitudes began to change, and laws began to fall.

Which brings us to the chicken and egg question: Did the Charter bring about the equality rights? Or did a change in societal and cultural attitudes bring about the equality rights?

While the obvious answer is a bit of both, it’s worth noting that in the early years, the Charter accomplished very little for gay folks. It was only with the coming out of gay rights issues in the 1990s–when suddenly gay was everywhere, on television, magazines, films–that attitudes and in turn legal decisions really began to change.

It’s also worth noting that isn’t exclusively a Canadian trend. If you look at gay marriage around the world, after years of struggle, it arrives on the scene in the early 2000s: the Netherlands in 2001, Belgium in 2003, Spain in 2005 and South Africa in 2006. Gay marriage, like gay rights more generally, is an idea whose time had come.

So, how much do we owe the Charter?’ A lot. It provided a vehicle to challenge, to mobilize, and to raise awareness. It allowed the courts, rather than cowering politicians, to take the lead on formal equality rights. And by the late 1990s, Supreme Court and Court of Appeal justices did take the lead, and courageously did the right thing. The Charter allowed them to do this.

But, it could only deliver equality rights when the time was right. And by the end of the 1990s, it was time for gay rights.