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Landmark LGBT legal moments – World pride edition

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As Toronto continues to host the world for this year’s World Pride celebrations, I thought it was a good time to look back at some of the landmark legal moments involving, and impacting, members of the LGBT community.

1. Criminal Code Amendments (1969)

On May 14, 1969, Omnibus Bill C-150 passed third reading in the House of Commons, resulting in the decriminalization of homosexual acts in private between consenting adults over the age of 21 in Canada. While being interviewed about the Bill, then Minister of Justice Pierre Trudeau stated that “there’s no place for the state in the bedrooms of the nation”.

2. Sexual Orientation added to the Ontario Human Rights Code (1986)

The Equality Rights Statute Law Amendment Act, originally conceived as an omnibus bill to align Ontario statutes with the new Charter of Rights and Freedoms, was passed into law in December 1986. Following persistent advocacy by gay organizations and intense political and public debate, the Bill also added Sexual Orientation to the list of enumerated grounds found in the Ontario Human Rights Code.

3. Gays and Lesbians in the Military (1992)

In 1989, Michelle Douglas was investigated and ultimately dismissed by the Canadian Armed Forces because she admitted to being a lesbian. Ms. Douglas brought a legal challenge against the Canadian Armed Forces that, as part of a settlement, led to the removal of the ban on gays and lesbians being recruited to and promoted within the military in Canada.

4. Sexual Orientation in Refugee Claims (1993)

Justice La Forest, writing a unanimous Supreme Court decision that actually related to the refugee claim of a member of the Irish National Liberation Army (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689), clarified that sexual orientation is a ground upon which a refugee claimant may claim membership in a particular social group. The decision was subsequently followed by both the Immigration and Refugee Board and Canadian courts dealing with refugee claims made by gays and lesbians.

5. Egan v Canada [1995] 2 S.C.R. 513

In Egan v. Canada, the Supreme Court of Canada was asked to consider whether the definition of common-law “spouse” used within the Old Age Security program discriminated on the basis of sexual orientation because it included heterosexual common-law spouses but excluded all same-sex couples. In reaching its decision, the full Court found “sexual orientation” to be an analogous ground of discrimination and a majority of the Court found the definition used in the Old Age Security Act violated the equality provisions of the Charter. Ultimately, however, the Justices shifted configurations during the section 1 analysis and the violation was found to be justified and the Act to be constitutional.

6. Vriend v. Alberta [1998] 1 S.C.R. 493

Delwyn Vriend was employed as a laboratory coordinator by King’s College, a Christian college in Edmonton, Alberta. He was terminated after disclosing to his employer that he was gay, in response to an inquiry by the President of the College. The Alberta Human Rights and Citizenship Commission refused to investigate his claim because sexual orientation was not included in the Individual Rights Protection Act as a prohibited ground of discrimination. Ultimately, the Supreme Court of Canada unanimously found that the omission of sexual orientation violated section 15 of the Charter and ordered that the ground be read into the legislation.

7. M. v. H. [1999] 2 S.C.R. 3

M and H were two women who lived together for over a decade before breaking up in 1992. After their breakup, M sought spousal support from H but the definition of spouse in the Family Law Act defined spouses as either married or “a man and woman” who are unmarried and have lived together for no less than three years. The Supreme Court found that the opposite sex definition of spouse was unconstitutional but suspended its remedy to allow Ontario to develop an appropriate remedy. In October 1999, the Ontario legislature introduced a Bill that changed the Family Law Act to include “spouse or same-sex partner”, instead of just “spouse”.

8. Marc Hall v. Durham Catholic School Board (2002)

While prom dates may seem a little less “landmark” than some of the other topics on this list, try telling that to a teenager in love. After the grade 12 Catholic student was denied permission by the principal of his high school to bring his boyfriend to the school prom, he brought an action against the principal and the school board alleging a Charter violation and seeking an application for an interlocutory injunction restraining the defendants from preventing his attendance with his boyfriend at the prom. The injunction was granted and Mr. Hall attended his prom with his boyfriend. He subsequently decided not to pursue the case to its conclusion.

9. Halpern v. Canada, [2003] O.J. No. 2268

Halpern v. Canada was a decision of the Court of Appeal for Ontario that considered the common law definition of marriage. The Court held that the requirement of one man and one woman violated section 15 of the Canadian Charter of Rights and Freedoms. Rather than suspend the remedy, the Court reformulated the definition as the “the voluntary union for life of two persons to the exclusion of all others”. The Court ordered the City of Toronto to issue marriage licenses to the same-sex couples who had challenged the law and ordered Ontario to register the marriages of two couples who had been married by the Metropolitan Community Church of Toronto back in 2001.

10. Hogan v. Ontario (Minister of Health and Long Term Care) 2006 HRTO 32

After the Government of Ontario de-listed Sex Reassignment Surgery (SRS) from the Schedule of Benefits, four people who had received Clinic approvals for sex reassignment surgery claimed to the Human Rights Tribunal of Ontario that the de-listing discriminated against them on the basis of disability and sex. The Tribunal agreed and ordered the government to fund the surgery for the four individuals and to pay them general damages ranging from $25,000 to $35,000 per person. In 2008, such surgery was re-listed in the provincial health plan.

11. XY v. Ontario (Government and Consumer Services), 2012 HRTO 72

Another decision of the Human Rights Tribunal of Ontario, this time the Tribunal found that requiring a person to have “transsexual surgery” before they can change the sex designation on their birth registration is discriminatory and ordered the cessation of this requirement. At the time of the decision, Chief Commissioner Barbara Hall stated, “Transgender people’s rights are human rights. This decision is a welcome step forward in recognizing and promoting the dignity and equality of trans people.” Cory Boyd