Sexual Orientation as a Human Rights Issue in Canada 1969-1985

Equality is a protean concept. Even if one has taken a position on the equality of opportunity versus equality of outcomes debate, there remains the problem of deciding what equality means in particular contexts: racial equality, equality between the sexes, between those with and without mental or physical disability, and so on. Finally, there is the issue of which groups in society are entitled to "equality", whatever it may mean. Given the open-ended nature of the equality guarantees contained in section 15 of Canada's Charter of Rights and Freedoms, it is clear that groups other than those specifically mentioned therein may have claims to assert. This article will address the claims of gays and lesbians to equal treatment under section 15 of the Charter. Which non-enumerated groups will be accorded Charter protection is very much a political issue. Organization, numbers, and success in the area of public opinion will all be key factors in determining which groups are recognized and which are not. During the last dozen or so years, gay and lesbian groups have come out of the shadows and entered the political arena in a determined way. They have spent a considerable amount of effort educating the public (and governments) about the discrimination and oppression which they face in all walks of life. In attempting to effect changes in the law, these groups have situated their demands within an ideology of human rights, arguing that one's sexual orientation (whether heterosexual, homosexual or bisexual) is a basic attribute of personhood which should not result in individious differential treatment in the public or private sphere. It is further argued that discrimination against gays and lesbians is based on inaccurate stereotypes, which automatically attribute to all gay persons the characteristics that have traditionally been associated with them (gay men as unreliable, lesbians as bad mothers, etc.). In this respect, the parallels with discrimination on the basis of race or sex are clear. This article will examine the Canadian experience with gay rights as a human rights issue. This material establishes the context within which section 15 will be interpreted. The following two sections will look at legal developments in Quebec and common law Canada, respectively, and the last section will look at public opinion on gay rights issues in Canada since 1969.

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