Sexual Orientation

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| Copyright Dominique Clément / Clément Consulting

Quebec banned discrimination on the basis of sexual orientation in 1977. The amendment was in response to an especially brutal police raid on a gay bathhouse called Truxx. The raid was widely publicized and threatened the newly elected Parti Québécois’s image as a progressive party. At the time, no other province considered sexual orientation as a human right. Neither the federal Human Rights Act nor the Charter of Rights and Freedoms recognized sexual orientation. When the Saskatchewan Federation of Labour adopted a non-discrimination policy on the basis of sexual orientation in 1976, for instance, it was the only labour federation in the country to acknowledge this form of discrimination for many years to come. Yet discrimination against gays and lesbians was not uncommon in Canada. In February 1981, in what was later characterized as the largest police action since the October Crisis, 150 Toronto police officers raided four bathhouses and arrested hundreds of gay men. The Globe and Mail characterized the raids as an “ugly action” and a clear case of discrimination against homosexuals: “This flinging of an army against the homosexuals is more like the bully-boy tactics of a Latin American republic attacking church and lay reformers than of anything that has a place in Canada.” But unlike its neighbour, the Ontario government refused to include sexual orientation in the Human Rights Code , despite a recommendation from its own Human Rights Commission.

Politicians in Canada had, for many years, rejected sexual orientation as a human right. In 1974, British Columbia had produced one of the most innovative human rights laws in the world, yet the government refused to include sexual orientation. Members of Parliament and SMOs lobbied to have sexual orientation included in the federal Human Rights Act and the Charter of Rights and Freedoms, only to be rebuffed. When the Ontario Human Rights Commission initiated province wide public consultations in the mid-1970s on possible reforms to the Code, the most contentious issue by far was sexual orientation. In its 1977 report, Life Together, the Ontario Human Rights Commission recommended that the government include sexual orientation in the Code. The response was swift and highly critical. This one issue received disproportionate attention in the media, and so critical was the public response that the Ontario government rejected this recommendation from its own commission. Instead, it was Quebec that became the first jurisdiction to ban discrimination on the basis of sexual orientation. It would be almost another decade before Ontario did the same. Even then, it was only the beginning. In 1993 a judge in Ontario applied a twisted logic to reject the contention that a prohibition on samesex marriage was discrimination on the basis of sexual orientation: “The law does not prohibit marriage by homosexuals, provided it takes place between persons of the opposite sex.” Still, banning discrimination on the basis of sexual orientation was an important symbolic first step.

In the 1990s many provinces continued to refuse to recognize sexual orientation as a human right. A major overhaul of Newfoundland’s Human Rights Act in 1988 was almost jettisoned entirely when the Cabinet became embroiled in the debate over sexual orientation. The province’s justice minister in 1990 feared that the amendment would protect pedophiles, while also insisting that such discrimination did not exist in Newfoundland. The Newfoundland Human Rights Commission’s files indicate that it never investigated a single case of discrimination against gays and lesbians before 1993, even though the Newfoundland Human Rights Association had documented several incidents. When the government relented and amended the law in 1997, only Prince Edward Island and Alberta remained. The government of Alberta was especially vocal in its refusal to amend its human rights legislation.

Alberta was already a key battleground in the fight for the rights of sexual minorities. When the first gay rights groups appeared in Canada’s largest cities in the early 1970s, they included the Gay Alliance Towards Equality (GATE) in Edmonton, founded in 1971. GATE organized the first campaigns to have sexual orientation included as a prohibited ground for discrimination. Both GATE and Calgary’s People’s Liberation (founded in 1973) operated phone lines and offered peer counselling, and in some cases held social events and hosted drop-ins. The Womyn’s Collective, founded in Calgary in 1977, held its first all-woman dance that year and hosted meetings, social events, and consciousness-raising groups, in addition to operating a drop-in centre and the Lesbian Information Line. A Lesbian Mothers’ Defence Fund was launched in Calgary in the 1980s, and in 1983, Calgary hosted the province’s first lesbian conference. Meanwhile, the first lesbian organization in Edmonton, Womonspace, was established in 1982. Similar organizations emerged in Red Deer, Grande Prairie, Medicine Hat, and Lethbridge in the 1990s. The proliferation of gay and lesbian rights organizations illustrates how minorities appropriated rights discourse to advance their claims. By the 1990s there was a flourishing gay rights movement in Alberta.

Virtually every success in the fight for equal rights for sexual minorities in Alberta can be attributed to the efforts of activists. Certainly the province’s political leaders were unwilling to follow other provinces in legislating equal rights for gays and lesbians. The Progressive Conservative government had refused to address sexual orientation despite a 1976 recommendation from the Alberta Human Rights Commission that the law be amended. The party refused to budge on the issue. Activists wrote briefs, mounted letter-writing campaigns, held meetings with members of the legislature, and formed a provincial organization in 1979 called the Alberta Lesbian and Gay Rights Association. Undeterred, the government appointed a chairman to the Human Rights Commission who was openly hostile to gays and lesbians. The commissioner insisted that sexual orientation was a choice and that people who flaunted their sexual orientation should expect discrimination. One cabinet minister declared in 1989 that the province would never ban discrimination if it meant allowing homosexuals to teach in schools. Another cabinet minister insisted that “two homosexuals do not constitute a family.” Ten years later the government went so far as to introduce legislation restricting common law marriages to heterosexual couples.

Politics aside, the social context in Alberta was another obstacle for the gay and lesbian rights movement. On national television, religious groups attacked Calgary’s 1995 lesbian and gay film festival (which had received a $4,000 federal grant) for being a “pornographic film orgy.” One minister insisted that “I’m not after the homos or the bi’s, I’m after the fact they’re showing porno movies in a tax-funded situation.” Two years later, a group of evangelical Christians convinced the chief superintendent of the Calgary Public School Board to ban two books from school libraries that dealt with homosexuality because they were “pro-gay.” Public opinion was also divided. A 1999 opinion poll found that a vast majority of people in Quebec and Atlantic Canada (over 87 percent) supported the inclusion of sexual orientation in human rights legislation, and 75 percent in Ontario. The weakest support, 65 percent, was on the prairies.

Given such a hostile climate, it was almost inevitable that the courts would have to intervene. By 1998, Alberta was the only jurisdiction (except for the Northwest Territories) where discrimination against gays and lesbians was legal. Delwin Vriend, a professor, was fired from King’s College in Edmonton for being gay. According to the college, “homosexual practice goes against the Bible, and the college’s statement of faith.” The Human Rights Commission initially refused to hear his case, but a new commissioner and a vigorous campaign on behalf of activists led the commission to change its position on investigating sexual orientation cases. Meanwhile, Vriend convinced the Alberta Supreme Court that the commission’s initial refusal to consider his case violated his rights under the Charter of Rights and Freedoms. Although the Alberta Appellate Court overturned the ruling, the Supreme Court of Canada ruled in 1998 that Alberta’s human rights law’s omission of sexual orientation violated Section 5 of the Charter. That Court ordered the government of Alberta to interpret its human rights legislation as if it included sexual orientation. As of 1998, for the first time in Alberta’s history, it was illegal to discriminate on the basis of sexual orientation. Prince Edward Island formally amended its statute two months later; meanwhile, Alberta, while it enforced the law as the Court required, stubbornly refused to formally amend the legislation.

The Supreme Court of Canada’s 1998 ruling on sexual orientation led to what one author described as “a venomous torrent of homophobic hatred,” from attacks on radio shows to protests in front of the provincial legislature. Stockwell Day, the Alberta Treasurer, called on the provincial government to invoke the Charter’s notwithstanding clause. A decade after the Supreme Court’s ruling, Albertans continue to struggle with discrimination based on sexual orientation. In 2008, Alberta resident Darren Lund successfully pursued a complaint before a provincial human rights tribunal against Reverend Stephen Boissoin of the Concerned Christian Coalition. Boissoin had written a letter, published in the Red Deer Advocate, condemning homosexuality as wicked and dangerous. The tribunal’s decision was a victory for human rights, not only because it ruled in favour of homosexual rights but also because Lund had the support of both the commission and the provincial government. Unfortunately, the Court of Queen’s Bench overturned the decision on the basis that Boissoin’s hate speech constituted free speech. Lund’s appeal to the Alberta Court of Appeal was dismissed in 2012, and he was ordered to pay Boissoin’s legal costs.

The former Minister of Justice and Attorney General for Newfoundland, Lynn Verge, when confronted during a committee hearing in 1990 on the government’s decision to not include sexual orientation in 1988, argued that the failure was “because I couldn’t get the Cabinet to go along with what I wanted. Basically, the Cabinet as a whole got hung up on a couple of recommendations about extending protection, significantly on extension of protection to gays, and I decided as a matter of political strategy to take a two-step approach, step one, which I accomplished, which was amending the code to change the procedures.”


Further Reading

Herman, Didi. Rights of Passage: Struggles for Lesbian and Gay Legal Equality.  Toronto: University of Toronto Press, 1994.

Korinek, Valerie. “‘The Most Openly Gay Person for at Least a Thousand Miles’: Doug Wilson and the Politicization of a Province.” Canadian Historical Review 84, no. 4 (2003): 516-51.

Smith, Miriam. “Identity and Opportunity: The Lesbian and Gay Rights Movement.” In Group Politics and Social Movements in Canada, edited by Miriam Smith, 159-80. Peterborough: Broadview Press, 2007.

———. “Social Movements and Human Rights: Gender, Sexuality, and the Charter in English-Speaking Canada.” InTaking Liberties: A History of Human Rights in Canada, edited by Stephen Heathorn and David Goutor, 213-32. Toronto: Oxford University Press, 2013.

Warner, Tom. Never Going Back: A History of Queer Activism in Canada.  Toronto: University of Toronto Press, 2002.

Wintemute, Robert. Sexual Orientation and Human Rights: The United States Constitution, the European Convention, and the Canadian Charter.  Oxford: Clarendon Press, 1995.