Sexual Orientation Discrimination as Sex Discrimination:
Same-Sex Couples and the Charter in Mossop, Egan and Layland
Robert Wintemute*
This comment considers four recent cases involving dis-
crimination against same-sex couples. In Canada (A.G.) v.
Mossop, the Supreme Court of Canada rejected an argument
that such discrimination is discrimination on the basis of
“family status”, contrary to the Canadian Human Rights Act,
but suggested that an argument under the Canadian Charter
of Rights and Freedoms might have -made a difference. In
Egan v. Canada and Layland v. Ontario (Minister of Can-
sumer and Commercial Relations), the Federal Court of
Appeal and the Ontario Divisional Court found that sexual
orientation is an analogous ground under subsection 15(1) of
the Charter. However, these courts held that denials of a ben-
efit made available to unmarried opposite-sex couples
(Egan) and of the right to marry (Layland) were not “dis-
crimination” under subsection 15(1) of the Charter. The
author agrees with the majority of the Supreme Court in
Mossop that the discrimination in question was based on
“sexual orientation”, not “family status”, but finds its reli-
ance on “parliamentary intent” surprising, and its implicit
conclusion that same-sex couples are not “families” incorrect
,and unnecessary. He then analyzes the reasoning used in
Egan and Layland, noting various problems including the
use of Justice McIntyre’s requirement of “discriminatory
impact” in Andrews v. Lant, Society, of British Columbia to
avoid a finding of “discrimination” under subsection 15(1).
In the fourth case, Baehr v. Lewin, the Supreme Court of
Hawaii, interpreting an express prohibition of sex discrimi-
nation in the Hawaii Constitution, held that denying same-
sex couples the right to marry is primafacie sex discrimina-
tion and must be justified. The author argues that this
approach is correct and that virtually all cases of sexual
orientation discrimination can also be viewed as cases of sex
discrimination. Thus, Mossop, Egan, Layland and other
cases of discrimination against same-sex couples could all be
viewed as cases of sex discrimination, whether under subsec-
tlion 15(1) of the Charter or under a human rights act that
prohibits sex discrimination.
Ce commentaire d’arrtt propose une analyse de quatre
decisions rtcentes portant sur la discrimination envers des
couples formts de personnes du mere sexe. Dans l’affaire
Canada (P.G.) c. Mossop, la Cour supreme du Canada a
rejetd l’argument selon lequel la discrimination envers ces
couples est une fome de discrimination basde sur la usitua-
tion de famille., ce qui est interdit en vertu de la Loi cana-
dienne sur les droits de la personne, mais a toutefois suggdr6
que la dtcision eIt pu Etre difftrente si un argument fond6
sur ]a Charte canadienne des droits et libertis avait dt6 pre-
sent. Dans les affaires Egan c. Canada et Layland c. Onta-
rio (Minister of Consumer and Commercial Relations), Is
Cour d’appel f&llrale et la Cour divisionnaire d’Ontario ant
mentionnt que l’orientation sexuelle constitue un crithre ana-
logue a ceux dnoncts au paragraphe 15(1) de la Charte.
Cependant, ces tribunaux en sont venus A la conclusion que
le refus d’accorder aux couples forms de personnes do
mme sexe les bn6fices aecessibles aux couples formds de
personnes de sexes oppoads qui ne sont pas macides (Egan),
ainsi que le refus de leur accorder le droit de se maier (Lay-
land), ne constituent pas une adiscriminationo au sens du
pamgraphe 15(1) de la Charte. L’auteur est d’accord avec
l’opinion majoritaire de Ia Cour supreme dans I’arret Mossop
sur le fait que la discrimination dans ctte affaire dtait baste
sur ‘orientation sexuelle et non sur Ia usituation de familleo,
mais il est aussi d’avis que l’importance accordte par la Cour
i sl’intention parlementairo est dtonnante, et que Ia conclu-
sion implicite sclon laquelle les couples qui sont formds de
personnes du mIme sexe ne sont pas des families n’est ni
correcte ni ntcessaire. I1 analye ensuite le misonnement
adoptd par les tribunaux dans les affaires Egan et Layland. It
relve plusicurs problsmes dont ‘usage du concept vimpact
discriminatoire-, tel que M. le juge McIntyre dans l’affaire
Andrews c. Law Society of British Columbia l’a fait pour
conclure 4 I’absence de discrimination au sens du pamgraphe
15(1) de Ia Charte.
Dans la quatribme affaire, Baehr c. Lewin, la Cour
suprme d’Hawaii, en interprttant une interdiction explicite
de discrimination baste sur le sexe contenue dans la Consti-
tution hawaiienne, soutient que le fait de refuser aux couples
forms de personnes du meme sexe le droit de se macier
constitue, prima facie, une discrimination baste sur le sexe
qui doit etre justifide. L’auteur soutient que cette approche
est correcte et que presque toutes les affaires de discrimina-
tion baste sur l’orientation sexuelle peuvent aussi tire consi-
d rtes comme des affaires portant sur une discrimination
baste sur le sexe. Ainsi, Mossop, Egan, Layland et d’autres”
dtcisions portant sur la discrimination envers des couples
forms de personnes du mtme sexe pourraient aussi tre con-
sidtes comme des affaires portant sur une discrimination
baste sur le sexe, que cc soit en vertu du paragraphe 15(1)
de la Charte ou en vertu d’une Idgislation interdisant la dis-
crimination baste sur le sexe.
*B.A. (Alberta), LL.B., B.C.L. (McGill), D.Phil. (Oxford); of the Bar of New York; Lecturer,
School of Law, King’s College, University of London. This comment incorporates much of Chapter
7 of my University of Oxford doctoral thesis entitled, “Sexual Orientation Discrimination and Con-
stitutional Human Rights Law: The United States Constitution, the European Convention on Human
Rights, and the Canadian Charter of Rights and Freedoms”, to be published by Oxford University
Press in 1995. I would like to thank Donald Casswell, Laurence Heifer and Peter Oliver for their
comments on earlier drafts, and the Social Sciences and Humanities Research Council of Canada for
awarding me a Doctoral Fellowship, without which the thesis would never have been undertaken.
McGill Law Journal 1994
Revue de droit de McGill
To be cited as: (1994) 39 McGill L.J. 429
Mode de rfrrence: (1994) 39 R.D. McGill 429
McGILL LAW JOURNAL
[Vol. 39
Synopsis
Introduction
1.
Four Recent Same-Sex Couple Cases
A. Canada (A.G.) v. Mossop
1. The Majority Judgments
2.
The Minority Judgments
“Family Status” or “Sexual Orientation”?
3.
4.
The Limitations of “Family Status”
The Charter Argument Not Made
5.
B. Egan v. Canada
1. The “Similarly Situated Test”
2.
3.
4.
5.
“Irrelevant Personal Differences”
The Ground of Distinction
“Discriminatory Impact”
The Dissenting Judgment
C. Layland v. Ontario (Minister of Consumer and Commercial
Relations)
1. The Majority Judgment
2.
3.
The Dissenting Judgment
The Distorting Effect of the “Discriminatory Impact”
Requirement
D. Baehr v. Lewin
II.
Is Sexual Orientation Discrimination Sex Discrimination?
A. The Traditional Response
B. Why the Answer Is Not So Obvious
1. The Hidden Sex-Based Distinction
2.
3.
The Illusion of Equal Treatment
Form vs. Substance?
C. Other Not So Obvious Kinds of Sex Discrimination: Sexual
Harassment and Pregnancy
D. The Drafters’ “Original Intent” as to What Sex Discrimination Is
E. Sex Discrimination against Same-Sex Couples
Conclusion
*
*
*
19941
Introduction
CASE COMMENTS
Discrimination against same-sex’ couples is one of the most pervasive kinds
of sexual orientation discrimination.2 Many gay, lesbian and bisexual individuals
(outside the armed forces) have not experienced discrimination in employment
(in the form of dismissals or refusals to hire or promote), either because they are
not open about their sexual orientation or because their employer abstains, for
whatever reason, from discriminating in this way.3 However, all same-sex couples
are exposed to some form of discrimination in that they are denied the right to
marry and the rights that flow from marriage (including the right of a Canadian
to sponsor a non-Canadian opposite-sex legal spouse for immigration4), and they
may also be denied a variety of employment or other benefits for which they
would qualify if they were a (married or unmarried) opposite-sex couple. Exten-
sion of such benefits to same-sex couples will generally require a positive deci-
sion to provide equal treatment, as opposed to a negative decision to refrain from
providing unequal treatment, and the discriminatory reason for non-extension
will usually be overt. As a result, the majority of published cases of sexual orien-
tation discrimination, in the areas of public or private (non-military) employment,
benefits or services, has involved discrimination against same-sex couples.
Indeed, one of the earliest such cases was Richard North and Chris Vogel’s 1974
challenge to the denial of same-sex couples’ right to marry.5 And since 1982, a
growing number of such cases have been brought by same-sex couples, under
both the Charter6 and human rights legislation.’
II will use the words heterosexual, bisexual, gay and lesbian to refer to the sexual orientations
of persons, and opposite-sex (male-female) or same-sex (male-male or female-female) to refer to
the sexual orientations of acts or relationships. Although the sexual orientations of the persons
engaging in an act or relationship will often be the same as that of the act or relitionship, this will
not always be the case. This is especially true of sexual activity, but may also be true of couple
relationships. Thus, it is hard to describe two bisexual women (or men) who are partners as a “les-
bian (or gay) couple”.
2For a discussion of the varieties of sexual orientation discrimination, in the context of U.K. law,
see R. Wintemute, “Sexual Orientation Discrimination” in C. McCrudden & G. Chambers, eds.,
Individual Rights and the Law in Britain (Oxford: Oxford University Press, 1994) 491.
3But see Waterman v. National Life Assurance Co. of Canada (1993), 18 C.H.R.R. D/176 (Ont.
4See Immigration Act, R.S.C. 1985, c. 1-2, s. 6(2), as am. by S.C. 1992, c. 49, s. 3; Immigration
Regulations, 1978, C.R.C., c. 940, s. 2(1), as am. by SOR/85-225, s. 1(1) (“spouse”), SOR/93-44,
s. 1(5) (“member of the family class”). At least one Immigration Appeal Board case (Andrea
Underwood and Anna Carrott) and twenty Canadian Human Rights Commission complaints
involving discrimination against same-sex couples in immigration are pending. See Lesbian & Gay
Immigration Task-Force, Taking the Next Step (Brief to the federal Minister of Immigration, 12
November 1993).
H.R.C.) (openly lesbian employee dismissed).
B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Charter].
5See Re North and Matheson (1974), 52 D.L.R. (3d) 280 (Man. Co. Ct.).
6Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule
7See e.g. Canada (A.G.) v. Mossop, [1993] 1 S.C.R. 554, 100 D.L.R. (4th) 658 [hereinafter Mos-
sop cited to S.C.R.]; Egan v. Canada, [1993] 3 F.C. 401, 103 D.L.R. (4th) 336 (C.A.) [hereinafter
Egan cited to F.C.]; Layland v. Ontario (Minister of Consumer and Commercial Relations) (1993),
14 O.R. (3d) 658 (Div. Ct.) [hereinafter Layland]; Clinton v. Ontario Blue Cross (1993), 18
C.H.R.R. D/377, 93 C.L.L.C. 17,026 (Ont. H.R.C.), rev’d (3 May 1994), (Ont. Div. Ct.) [herein-
after Clinton cited to C.H.R.R.]; Vogel v. Manitoba (A.G.) (1992), 90 D.L.R. (4th) 84, 79 Man. R.
(2d) 208 (Q.B.) [hereinafter Vogel I cited to D.L.R.]; Nielsen v. Canada (Human Rights Commis-
REVUE DE DROIT DE McGILL
[Vol. 39
In 1993, Canada (A.G.) v. Mossopt became the first same-sex couple case
to reach the Supreme Court of Canada, which rejected the argument that dis-
crimination against such a couple is discrimination based on “family status”,
contrary to the Canadian Human Rights Act.9 The Court did leave open the pos-
sibility of an argument under subsection 15(1) of the Charter. Within two
months of the decision in Mossop, Charter arguments were rejected by the Fed-
eral Court of Appeal in Egan v. Canada,l with regard to a benefit under the Old
Age Security Act,” and by the Ontario Divisional Court in Layland v. Ontario
(Minister of Consumer and Commercial Relations),2 with regard to same-sex
marriage. Leave to appeal has been granted by the Supreme Court of Canada in
Egan, and an appeal to the Supreme Court could follow a decision by the
Ontario Court of Appeal in Layland. This comment will assess the impact of
Mossop on the question of discrimination against same-sex couples and the
prospect of the Supreme Court accepting a Charter argument. It will also exa-
mine the reasons for the rejection, in Egan and Layland, of the argument that
discrimination against same-sex couples is discrimination based on sexual ori-
entation and is prohibited by subsection 15(1) of the Charter. Finally, it will
consider the viability of an alternative argument, not discussed in these three
decisions, that discrimination against same-sex couples is simply discrimination
based on sex, and is therefore contrary to subsection 15(1) or any human rights
act that prohibits sex discrimination. Such an argument was accepted by the
Supreme Court of Hawaii in a same-sex marriage case, Baehr v. Lewin,”
decided shortly after the three Canadian cases.
I. Four Recent Same-Sex Couple Cases
A. Canada (A.G.) v. Mossop
Brian Mossop complained to the Canadian Human Rights Commission
that his employer had denied him a day of bereavement leave to attend the
sion), [1992] 2 F.C. 561, 9 C.R.R. (2d) 289 (T.D.) [hereinafter Nielsen cited to F.C.]; Leshner v.
Ontario (1992), 16 C.H.R.R. D/184, 92 C.L.L.C. 17,016 (Ont. H.R.C.) [hereinafter Leshner cited
to C.H.R.R.]; Knodel v. British Columbia (Medical Services Commission), [1991] 6 W.W.R. 728,
58 B.C.L.R. (2d) 356 (S.C.) [hereinafter Knodel cited to W.W.R.]; Veysey v. Canada (Commis-
sioner of the Correctional Service), [1990] 1 F.C. 321 (T.D.), aff’d on other grounds (1990), 43
Admin. L.R. 316, 109 N.R. 300 (FC.A.) [hereinafter Veysey cited to Admin. L.R.]; Andrews v.
Ontario (Minister of Health) (1988), 64 O.R. (2d) 258, 49 D.L.R. (4th) 584 (H.C.J.) [hereinafter
Karen Andrews]; Anderson v. Luoma (1986), 50 R.FL. (2d) 127 (B.C.S.C.); Vogel v. Manitoba
(1983), 4 C.H.R.R. D/1654 (Man. H.R.C.) [hereinafter Vogel 11. See also Re Canada Post Corp.
and P.S.A.C. (Guevremont) (1993), 34 L.A.C. (4th) 104 [hereinafter Guevremont]; Re Parkivood
Hospital and McCormick Home and London and District Service Workers’ Union (1992), 24
L.A.C. (4th) 149 [hereinafter Parivood]; Re Canada (Treasury Board –
Indian & Northern
Affairs) and Watson (1990), 11 L.A.C. (4th) 129; Re Carleton University and CUPE Local 2424
(1988), 35 L.A.C. (3d) 96 [hereinafter Carleton].
81bid.
9R.S.C. 1985, c. H-6, s. 3(1) [hereinafter CHRA].
‘0 Supra note 7.
“R.S.C. 1985, c. 0-9.
12Supra note 7.
13852 P.2d 44 (Haw. 1993).
19941
CHRONIQUES DE JURISPRUDENCE
funeral of the father of his partner, Ken Popert, with whom he had lived for nine
years.14 On the apparent assumption that an employee with an opposite-sex part-
ner whose parent had died would have been allowed such leave, 5 a Canadian
Human Rights Tribunal held that the denial of leave was discrimination on the
basis of “family status”, contrary to subsections 3(1) and 10(b) of the CHRA,
because “homosexual couples may constitute a family.”16 The Federal Court of
Appeal, however, set aside the Tribunal’s decision,17 and the Supreme Court of
Canada (in a 4-3 decision) dismissed Mossop’s appeal.'” The majority’s reason-
ing was similar to that of the Federal Court of Appeal. In 1983, when Parliament
added “family status” to the list of prohibited grounds of discrimination in sub-
section 3(1) of the CHRA, it did not add “sexual orientation”, in spite of a rec-
ommendation of the Canadian Human Rights Commission to do so. It could not,.
therefore, have intended to cover the situation before the Court. 9 Thus, a
“homosexual couple” did not constitute a “family” for the purposes of the
CHRA, even if it might for the purposes of other legislation.’ The minority
would have upheld the Tribunal’s interpretation of “family status” as including
the relationship of a same-sex couple, because this interpretation was “correct”
(according to Justices Cory and McLachlin) or not “patently unreasonable”
(according to Justice L’Heureux-Dub6).2′
1.
The Majority Judgments
What is surprising about the majority judgments is their reliance on “par-
liamentary intent” in adopting the narrower of two possible interpretations of
the CHRA. This would not be unreasonable if it did not appear to be such a
marked departure from the Court’s approach in other cases. Neither Chief Jus-
tice Lamer nor Justice La Forest referred to the line of Supreme Court decisions
cited by Justice L’Heureux-Dub6 as establishing that “human rights legislation
has a unique quasi-constitutional nature, and … is to be given a large, purposive
and liberal interpretation.”22 She resolved the potential conflict between such an
“‘See Mossop v. Canada (Secretary of State) (1989), 10 C.H.R.R. D/6064 at D/6067, 89
C.L.L.C. 17,010 (C.H.R.C.).
15See Canada (A.G.) v. Mossop (1990), [1991] 1 F.C. 18 at 29-30, 71 D.L.R. (4th) 661 (C.A.)
[hereinafter Mossop cited to F.C.].
16Supra note 14 at D/6094, D/6097.
7Supra note 15.
I’Supra note 7.
191bid. at 580, 586-87.
20Ibid. at 582, Lamer C.J. See also ibid. at 586, LaForest J.: “While some may refer to a [same-
sex living arrangement] as a “family”, I do not think it has yet reached that status in the ordinary
use of language.” Compare Braschi v. Stahl Associates Co., 543 N.E.2d 49 at 54 (N.Y. 1989): “[A]
family includes two adult [same-sex] lifetime partners”; Bowers v. Hardwick, 478 U.S. 186 at 191
(1986) [hereinafter Bowers]: “No connection between family … and homosexual activity has been
demonstrated”; Simpson v. United Kingdom (No. 11716/85) (1986), 47 Eur. Comm. H.R. D.R. 274
at 277-78: “[A] stable homosexual relationship between two men [or two women] does not fall
within the scope of the right to respect for family life ensured by Article 8 of the Convention.”
2’lbid. at 648-49.
221bid. at 611-12, citing Insurance Corp. of British Columbia v. Heerspink, [1982] 2 S.C.R. 145,
39 B.C.L.R. 145 [hereinafter Heerspink]; Ontario (Human Rights Commission) v. Simpsons-Sears
Ltd., [1985] 2 S.C.R. 536, 52 O.R. (2d) 799 [hereinafter O’Malley cited to S.C.R]; Bhinder v.
McGILL LAW JOURNAL
[Vol. 39
interpretation and the specific intention of Parliament at the time it added “fam-
ily status” by arguing that,
[elven if Parliament had in mind a specific idea of the scope of “family status”,
in the absence of a definition in the Act which embodies this scope, concepts of
equality and liberty which appear in human rights documents are not bounded by
the precise understanding of those who drafted them. … The “living-tree” doctrine
… is particularly well suited to human rights legislation. The enumerated grounds
of discrimination must be examined in the context of contemporary values,
[their] meaning … is not “frozen in time” and the scope of each ground may
evolve.
23
The brief judgments of Chief Justice Lamer and Justice La Forest did not
acknowledge or explain their departure from the usual approach of giving
human rights legislation a “large, purposive and liberal interpretation”.24 Justice
La Forest did agree that the CHRA “should be interpreted generously with a
view to effect its purpose”, but then sought evidence of a specific legislative
purpose of protecting same-sex couples rather than of a general legislative pur-
pose of prohibiting discrimination based on “family status” as that concept
might be understood in the future. He found that the evidence supported the
conclusion that Parliament did not intend to protect same-sex couples 5’ Per-
haps, then, he and Chief Justice Lamer would say that a “large, purposive and
liberal interpretation” cannot override clear evidence of a specific, conflicting
“parliamentary intent”, and that there was no evidence of such a conflicting
intent in the cases cited by Justice L’Heureux-Dub6. Indeed, in University of
British Columbia v. Berg, decided shortly after Mossop, Chief Justice Lamer
observed that “[ilt is the duty of … courts to give [human rights legislation] a
liberal and purposive construction, without … circumventing the intention of the
legislature.”2 6
Although this might explain the majority’s reasoning, it is hard not to
notice history repeating itself. Mossop is only the second case of sexual orien-
tation discrimination to reach the Supreme Court of Canada since the substantial
decriminalization of sexual activity between men in 1969.27 In the first, Gay
Canadian National Railway Co., [1985] 2 S.C.R. 561, 23 D.L.R. (4th) 481; Canadian National
Railway Co. v. Canada (Human Rights Commission), [1987] 1 S.C.R. 1114,40 D.L.R. (4th) 193;
Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84,40 D.L.R. (4th) 577; Zurich Insurance
v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321, 93 D.L.R. (4th) 346.
231bid. at 621-22.
24Chief Justice Lamer’s silence regarding these cases, in Mossop, can be contrasted with his cita-
tion of several of them in University of British Columbia v. Berg, [1993] 2 S.C.R. 353 at 370, 102
D.L.R. (4th) 665 [hereinafter Berg cited to S.C.R.]: “This Court has repeatedly stressed that a
broad, liberal and purposive approach is appropriate to human rights legislation, … [which] ‘must
be so interpreted as to advance the broad policy considerations underlying it’.” See also NV. Tar-
nopolsky & W. Pentney, Discrimination and the Law, rev. ed. (Toronto: De Boo, 1993) at
9-16- 9-18.
25Mossop, supra note 7 at 586-87 (S.C.C.). It is doubtful whether Parliament had a specific
intent not to protect same-sex couples, as opposed to one not to prohibit sexual orientation discrim-
ination, in that it may not have occurred to Parliament in 1983 that a same-sex couple would come
to be seen as a “family”.
26Supra note 24 at 371.
27An Act to Amend the Criminal Code, S.C. 1968-69, c. 38, s. 7.
1994]
CASE COMMENTS
Alliance Toward Equalito v. Vancouver Sun, in 1979, the Court (in a 6-3 deci-
sion) reversed a board of inquiry finding that a newspaper’s refusal of a classi-
fied advertisement for “GAY TIDE, gay lib paper” was discrimination “without
reasonable cause” in a service “customarily available to the public”, contrary to
British Columbia’s (then open-ended) human rights legislation.” In concluding
that classified newspaper advertisements were not a service “customarily avail-
able to the public”, the majority was exceptionally influenced by the guarantee
of freedom of the press in the. Canadian Bill of Rights,29 and effectively gave a
common law version of that guarantee a surprising precedence over a provincial
statute (to which the Bill of Rights did not apply).3″ Now in Mossop, after a dec-
ade of expansive interpretation of human rights legislation, the Supreme Court
has called a halt and has exceptionally invoked “parliamentary intent” when
faced with a case of sexual orientation discrimination that could arguably be
characterized as one of family status discrimination.
2.
The Minority Judgments
By giving the CHRA a “large, purposive and liberal interpretation” regard-
less of any specific “parliamentary intent” in 1983, the minority adhered to the
approach taken in earlier Supreme Court cases. But was its conclusion that such
an interpretation of “family status” may include the relationship of a same-sex
couple justified? Justice L’Heureux-Dub6 began by noting that the French ver-
sion of “family status” (“situatioti defamille”) goes beyond “families with legal
status”,3 and that Parliament had declined to define “family status”, leaving its
interpretation to the Canadian Human Rights Commission, its tribunals and the
courts.32 She then considered a variety of definitions of “family” from the “tra-
ditional family” (married opposite-sex couple with children) to “the family is
who they say they are,” before concluding that “there is no consensus as to the
boundaries of family.”’33 A compromise between a traditional definition and a
completely subjective one might be one suggested by Justice L’Heureux-Dub6:
“‘[F]amily status’ is an attribute of those who live as if they were a family, in
a family relationship, caring for each other.”” She observed that “a large
number of Canadians do not live within traditional families,” and that the values
17 Osgoode Hall L.J. 649 at 665, 672-75.
281[1979] 2 S.C.R. 435, 10 B.C.L.R. 257 [hereinafter Gay Alliance cited to S.C.R.].
29S.C. 1960, c. 44. See W.W. Black, “Gay Alliance Toward Equality v. Vancouver Sun” (1979)
30See Gay Alliance, supra note 28 at 454-56. The competing interest of freedom of the press in
Gay Alliance was emphasized in Berg (supra note 24 at 376-79) and Heerspink (supra note 22 at
153). In Heerspink, the same B.C. human rights act as in Gay Alliance was described by Lamer
J. (at 158) as “a fundamental law” that would govern in the event of a direct conflict with a B.C.
insurance act. While Black (ibid. at 650-52, 672-75) saw Gay Alliance as a narrow decision turning
on freedom of the press, other commentators viewed it as evidencing possible hostility on the part
of the Supreme Court to human rights claims by gay, lesbian and bisexual persons. See e.g. H.
Kopyto, “The Gay Alliance Case Reconsidered” (1980) 18 Osgoode Hall L.J. 639 at 652; J. Rich-
stone & S. Russell, “Shutting the Gate: Gay Civil Rights in the Supreme Court of Canada” (1981)
27 McGill L.J. 92 at 93.
31Mossop, supra note 7 at 617-18 (S.C.C.).
32Ibid. at 619-20.
331bid. at 624-26.
341bid. at 624 [emphasis added].
REVUE DE DROIT DE McGILL
(Vol. 39
promoted by “traditional families” (e.g., stability and emotional relationships)
“can be advanced by other types of families.” 35 The Tribunal could thus con-
clude that the scope of “family status” “does not prima facie exclude same-sex
couples.”36 It was also justified in adopting a “functional” rather than “formal-
istic” approach to defining “family status”. 37 Thus, in view of the expert
witness’s conclusion that Mossop’s relationship with Popert was a “familial
relationship” because it satisfied a number of criteria relevant under a functional
approach (relationship of some standing and expected to continue, joint resi-
dence, economic union, shared housework, emotional and sexual relationship),
the Tribunal could conclude that it came within the scope of “family status”.38
It is submitted that Justice L’Heureux-Dub6’s analysis is correct, and that
the majority ought to have concluded that a same-sex couple is a “family” and
therefore has a “family status” for the purposes of the CHRA. But there remains
the question of whether Mossop was denied bereavement leave because of his
“family status” (i.e., the kind of family relationship he had with Popert) or
because of his “sexual orientation” (i.e., his choice of a specific kind of family
relationship, a “couple” or “spousal” relationship39 with a person of the same
sex rather than of the opposite sex). This is a difficult question. Justice
L’Heureux-Dub6 argued that the Mossop-Popert relationship “had functionally
the same characteristics as other relationships for which bereavement leave was
deemed appropriate” and that they were therefore “immediate family”. 0 In
excluding them from the definition of “immediate family”, the collective agree-
ment was discriminating on the basis of “family status” (as well as “sexual ori-
entation”), because the employer was treating their family relationship differ-
ently from other family relationships4′ and effectively refusing to recognise it as
a “family relationship” or a “real family”.42 I would argue that Chief Justice
Lamer (in agreeing with Marceau J.A.) correctly concluded that the real ground
of distinction was sexual orientation and not family status,43 whereas Justice
L’Heureux-Dub6 used the arguable overlap of sexual orientation and family sta-
tus to do justice in this case.
3.
“Family Status” or “Sexual Orientation”?
The decision on this point turns on whether or not sexual orientation is
treated as entering into the definition of a kind of family relationship. If a couple
relationship between persons of the same sex is a different kind of family rela-
tionship from a couple relationship between persons of opposite sexes (married
or unmarried), then Justice L’Heureux-Dub6 correctly concluded that there had
been discrimination on the basis of “family status”, in that the former kind of
35Ibid. at 629-31.
36Ibid. at 635.
371bid. at 636-39.
31bid. at 639-40.
391 will use these terms interchangeably.
40Mossop, supra note 7 at 643 (S.C.C.).
4’Ibid. at 644.
42Ibid. at 646-47.
431bid. at 580-81.
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.437
family relationship had been excluded while the latter had been included. But
if a couple relationship between persons of the same sex is the same kind of
family relationship as a couple relationship between persons of opposite sexes
(both are couple relationships), then the difference between them is one of sex-
ual orientation and not family status (kind of family relationship). The same
issue would have presented itself if the collective agreement had said “common-
law spouse, except where such spouse is not of the same race or religion as the
employee.” Would an African-Canadian or Jewish employee with a European-
Canadian or Christian common-law spouse be denied bereavement leave
because of his or her “family status” (kind of family relationship, i.e., mixed-
race or mixed-religion couple relationship), or because of his or her race or reli-
gion? I would suggest that a couple relationship between two persons of differ-
ent races or religions is not an inherently different kind of family relationship
from one between two persons of the same race or religion. The same is true
of the difference between a same-sex couple and an opposite-sex couple. The
difference lies in the sexual orientations of the individuals (or of the relation-
ship), but not in the kind of family relationship, which is the same in each case
(both are couple relationships). Sexual orientation is thus a distinct (and, for the
purposes of “family status”, unrelated or irrelevant) kind of difference in that it
does not reflect a difference in the kind of family relationship. The discrimina-
tion in Mossop was among family relationships of the same kind (couple rela-
tionships) according to the sexual orientation of those relationships.
The real question with regard to same-sex couples is not the highly emo-
tive one of whether or not they constitute “families”. This depends entirely on
the definition of “family”. A definition as broad as that used in the collective
agreement in Mossop (i.e., any definition that includes opposite-sex couples)
certainly should include them. A narrow one (e.g., parent-child relationships, to
be discussed below) would exclude all couple relationships, whether opposite-
sex or same-sex, married or unmarried. The real question is whether, whatever
definition of “family” is adopted in a particular context, the definition may dis-
criminate directly or indirectly on the basis of sexual orientation (or any other
ground prohibited by human rights legislation or, where applicable, the Char-
ter). A definition of “common-law spouse” as a “person of the opposite sex”
discriminates directly (or expressly) on the ground of sexual orientation. A def-
inition of “common-law spouse” as a person “publicly represented” as the
employee’s spouse, or with whom the employee resides, could discriminate
indirectly against (disproportionately exclude or have an adverse effect on)
same-sex couples who, for fear of discrimination, cannot publicly represent
their relationship’ or, in some cases, even live together. Thus, I would agree
with the minority that (regardless of “parliamentary intent” in 1983) a same-sex
couple may be a “family” for the purposes of the CHRA (given a definition of
“family” that includes opposite-sex couples), and with the majority that, even
though the Mossop-Popert relationship was a “family relationship”, the discri-
44Justice L’Heureux-Dub6 noted the discriminatory potential of a “public representation”
requirement (ibid. at 638). See also Linden J.A. in Egan (supra note 7 at 441), where he stated that
“gay and lesbian partners are not required to show that their relationship corresponds to an ideal-
ized heterosexual relationship.”
McGILL LAW JOURNAL
[Vol. 39
mination was based on tie sexual orientation of that relationship, and not on the
kind of family relationship (i.e., their “family status”).
4.
The Limitations of “Family Status”
The above analysis could be criticized for making an overly fine distinction
between sexual orientation and family status, like the distinction between preg-
nancy and sex made in Bliss v. Canada (A.G.), 45 to which Justice L’Heureux-
Dub6 implicitly compared the situation in Mossop.46 Assuming that the minority
was correct in finding “family status” discrimination, and that Mossop was
wrongly decided, the question arises whether a family status discrimination
argument is the best approach to cases involving discrimination against same-
sex couples, and to other cases of sexual orientation discrimination, or whether
it is a faute-de-mieux argument that was invoked to achieve a just result. Had
the decision in Mossop gone the other way, would it have established a general
principle that could be applied to all chses of sexual orientation discrimination,
or to all cases of discrimination against same-sex couples?
Arguing family status discrimination in a case of sexual orientation dis-
crimination raises several problems. First, as Justice L’Heureux-Dub6’s judg-
ment demonstrates, the concepts of “family” and “family status” are extremely
amorphous and can be given a wide variety of meanings. The narrowest mean-
ing of “family” is probably “parent-child relationship”, as when a couple with-
out children says that they are planning to “start a family”. Such a meaning
gives “family status” a manageable scope (being in a parent-child relationship)
and has been incorporated by several provincial legislatures into statutory def-
initions of “family status”. 47 If “family status” is not defined, as in the CHRA,
it is hard to see what limits could be placed on its scope, for virtually any blood
relationship (using a traditional approach) or a close friendship with any non-
relative (using a functional approach) could conceivably qualify. Giving a broad
scope to “family status” raises the question of when distinctions based on “fam-
ily status” are permitted. Justice L’Heureux-Dub6 clearly contemplated that all
family relationships need not be treated alike and suggested that the distinction
between “immediate family” and other family relationships, used in the
bereavement-leave provision of the collective agreement in Mossop, was per-
missible.”a Would there be prima facie family status discrimination where the
deceased person was the employee’s cousin (and did not reside with the
employee), or an extremely close friend of the employee (such that their rela-
tionship was familial but not sexual), or a less close friend with whom the
employee was not in a family relationship? In the latter case, does “family sta-
tus” include not being in a family relationship with a particular person, as “mar-
ital status” may include not being married?49
45[1979] 1 S.C.R. 183, 92 D.L.R. (3d) 417.
46Supra note 7 at 646 (S.C.C.).
47See e.g. Ontario Human Rights Code, R.S.O. 1990, c. H-19, s. 10(1); Saskatchewan Human
Rights Code, S.S. 1979, c. S-24.1, s. 2(1)(h.1).
48Supra note 7 at 641, 643 (S.C.C.).
49See Mossop, supra note 15 at 35 (F.C.A.).
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CASE COMMENTS
Second, even if the uncertain scope of “family status” can be ignored,
treating discrimination against a same-sex couple as family status discrimina-
tion does not establish a general principle that could easily be applied to other
cases of sexual orientation discrimination, for example, discrimination in
employment against gay, lesbian or bisexual individuals who do not have same-
sex partners. Unless “family status” includes “desire for a particular family sta-
tus”, an employer’s dismissal of such an individual would not be prohibited.
The anomalous consequence that such individuals would not be protected by the
CHRA, but members of same-sex couples would be, was noted by Chief Justice
Lamer.50
Third, even if treating discrimination against a same-sex couple as family
status discrimination is a useful principle for same-sex couples, it probably
would not apply to many cases of discrimination against them. The Tribu-
nal’s decision in Mossop rested essentially on the similarity between a same-sex
couple and an unmarried opposite-sex couple,5′ and its order required the
amendment of the collective agreement “to provide that a person of the same
sex as an employee who would otherwise meet the definition of ‘common-law
spouse’ of that employee, except for the sex of that person, is included in the
definition of ‘common-law spouse”‘ (i.e., by deleting “of the opposite sex”
from the definition).52 However, the Tribunal’s conclusion that the discrimina-
tion was based on family status fails to reflect the similarity between same-sex
and opposite-sex couples. It does recognise that two long-term same-sex part-
ners are more than just “two friends” and are at least “two members of a fam-
ily”, but not that they are a “couple” or “spouses”. It places them in an outer
circle of family relationships, including brothers, sisters, other blood relatives
and parents-in-law, rather than in an inner circle of couple or spousal relation-
ships (opposite-sex or same-sex, married or unmarried). Even Justice
L’Heureux-Dub6 declined, in spite of the Tribunal’s order that the definition of
“common-law spouse” be amended, to interpret its decision as concluding “that
a same-sex partner is a common law spouse.”53 Yet, as Marceau J.A. argued in
the Federal Court of Appeal decision, “[t]he complainant’s case must rest … on
the basis that not only was his lover a member of his family, but that they were
spouses.’ 4 The distinction between being a “spouse” and being a “family mem-
50Mossop, supra note 7 at 581 (S.C.C.). A somewhat similar anomaly would exist if a human
rights act prohibited discrimination based on pregnancy but not sex. A non-pregnant woman would
have to argue that she was dismissed because of her desire or capacity to become pregnant.
5 1The Tribunal stated that the collective agreement definition of common-law spouse “excludes
a person of the same sex who, but for gender, would otherwise be included as a common-law
spouse” (supra note 14 at D/6097 (C.H.R.C.)).
52Ibid. at D/6099.
53Supra note 7 at 644 (S.C.C.). See also Moisop, supra note 15 at 41 (F.C.A.), where Stone J.A.
stated, “[A] common-law relationship … is one that exists between persons of the opposite sex”;
Veysey, supra note 7 at 321-22, where the Federal Court of Appeal declined to express any view
as to whether “common law partners of the same sex” are “common law spouses”.
54Supra note 15 at 36-37 (F.C.A.). This assumes that Mossop was comparing his relationship
with Popert’s father with the relationship between a male employee and the father of his (legal or
common-law) female spouse (in view of the inclusion of “father-in-law” in the collective agree-
ment’s definition of “immediate family”), rather than arguing that his relationship with Popert’s
father was simply a family relationship that had been excluded from that definition (and was of
REVUE DE DROIT DE McGILL
[Vol. 39
ber” matters not just because of the real difference in the relationship between
two men or two women who are partners and two brothers or two sisters (i.e.,
existence, at least initially or potentially, of a sexual relationship), but also
because there will be cases where benefits will be made available only to an
employee’s married or unmarried partner (and often to the children of the
employee or the partner). In such cases, it would be difficult to argue that there
was discrimination based on family status, because most family relationships
(other than couple relationships or parent-child relationships) would be
excluded from the benefit.5 Mossop was not such a case, because the benefit in
question was provided not only where the deceased was the opposite-sex spouse
(legal or common-law) or the child of the employee or opposite-sex spouse, but
also where the deceased was a parent, brother, sister, parent-in-law or ward of
the employee, or a relative residing with the employee. 6 Because a wide variety
of family relationships other than couple or parent-child relationships were
included, Justice L’Heureux-Dub6 could easily treat the exclusion of same-sex
couples as the exclusion of one kind of family relationship where many others
were included. It was not necessary to compare a same-sex couple directly with
an opposite-sex couple.
5.
The Charter Argument Not Made
In view of the rejection of a family status discrimination argument under
the CHRA, and its limitations had it been accepted, are there other arguments
that could have been made and that might have had a broader application if
accepted? Why was a CHRA complaint used rather than a Charter action, and
why was “family status” selected as the applicable prohibited ground of dis-
crimination? Although Mossop involved “a collective agreement … one of the
co-authors of which [the Treasury Board] falls easily within the notion of gov-
ernment … in section 32 of the Charter,”’57 the complainant chose not to make
direct use of the Charter by arguing that his employer (the federal government)
had discriminated against him on the basis of an analogous ground (sexual
orientation), contrary to subsection 15(1) of the Charter. The probable reason
is that the Canadian Human Rights Commission would bear the cost of a CHRA
complaint, whereas Mossop may have had to pay much of the substantial cost
of a Charter action. 8 Thus, although a Charter action might have established
a more general principle that any government action (including legislation) dis-
criminating against same-sex couples is prima facie prohibited by subsection
15(1), it may have been prohibitively expensive. In selecting the appropriate
prohibited ground from the list in subsection 3(1) of the CHRA, several candi-
dates other than “family status” might have been considered. “Marital status”
a kind other than “son-in-law and father-in-law”). But without a direct comparison with an
included family relationship, the case against exclusion of the Mossop-Popert Sr. relationship
would be weakened.
55See e.g. Egan, supra note 7; Leshner, supra note 7; Vogel II, supra note 7; Knodel, supra
note 7.
56Supra note 7 at 590 (S.C.C.).
57Supra note 15 at 38 (F.C.A.).
58See W. Tarnopolsky, “The Equality Rights in the Canadian Charter” (1983) 61 Can. Bar Rev,
242 at 255-56.
19941
CHRONIQUES DE JURISPRUDENCE
may have been rejected as inapplicable because both married and unmarried
opposite-sex couples qualified for the benefit. “Sex” may have been seen as pre-
cluded by precedent (to be discussed below). As for “sexual orientation”, Par-
liament had not yet added it at the time of the complaint, the oral argument in
the Supreme Court, or the Court’s decision.
However, between the oral argument and the Supreme Court’s decision in
Mossop, the Ontario Court of Appeal held in Haig v. Canada9 that the omission
of “sexual orientation” from subsection 3(1) of the CHRA violates subsection
15(1) of the Charter and must therefore be “read in”. After the federal govern-
ment decided not to appeal the decision, the Court “invited the parties [in Mos-
sop] to submit ne v arguments,” which would have permitted the Canadian
Human Rights Commission to make indirect use of the Charter by arguing (as
in Haig) that subsection 15(1) of the Charter requires that “sexual orientation”
be read into the CHRA.’ This would have permitted the Court to decide whether
or not it agreed with the reasoning in Haig,61 and if it agreed, to uphold Mos-
sop’s complaint as one of sexual orientation discrimination. The Commission
declined the opportunity, perhaps because it had been rebuked in the past for
trying to change the grounds of a complaint,” with the result that the Court
decided the case solely as one of family status discrimination.63 The majority
did, however, stress that it was leaving open the question of how it would decide
a similar case argued under the Charter and implied that the outcome might be
different.’ Two such cases, Egan and Layland, were decided by lower courts
shortly after Mossop. How did the Charter argument fare?
59(1992), 9 O.R. (3d) 495, 94 D.L.R. (4th) 1 (C.A.) [hereinafter Haig cited to O.R.]. In Vriend
v. Alberta (A.G.) (12 April 1994), Edmonton 9203-02452 (Alta. Q.B.), Russel J. followed Haig and
held that subsection 15(1) of the Charter requires that “sexual orientation” be read into ss. 2(1),
3, 4, 7(l) and 8(1) of the Individual’s Rights Protection Act, S.A. 1980, c. 1-2.
6Mossop, supra note 7 at 579 (S.C.C.).
6 1The Canadian Human Rights Commission has relied on Haig in accepting sexual orientation
discrimination complaints throughout Canada, not just in Ontario, and human rights commissions
in all jurisdictions (other than the Northwest Territories) have been accepting such complaints on
the assumption that the reasoning also applies to their human rights acts (telephone conversation
with Charles Mojsej, Canadian Human Rights Commission, Ottawa, 17 December 1992). A
Supreme Court decision upholding the reasoning in Haig would remove the uncertainty as to
whether these commissions should be accepting complaints not governed by Haig. It could also
address two issues raised by Haig: (1) Does subsection 15(1) of the Charter require that human
rights acts include all the enumerated and analogous grounds of discrimination contained in or
recognised under subsection 15(1)? (2) If so, does this requirement extend to the private sector as
well as the public sector? In McKinney v. University of Guelph ([1990] 3 S.C.R. 229, 76 D.L.R.
(4th) 545 [hereinafter McKinney cited to S.C.R.]), Justice L’Heureux-Dub6 said (at 436) that the
omission of a ground would not be a violation of subsection 15(1), Justice Wilson left the point
open (at 412-13), and the majority was silent. Perhaps Haig can be explained on the basis that,
whether or not subsection 15(1) requires the enactment of human rights legislation, a legislature
that elects to do so (and to extend the legislation to the private sector) must treat all enumerated
and analogous grounds of discrimination equally.
6 2See S. Fine, “Top Court Rejects Gay Man’s Claim” The [Toronto] Globe and Mail (26 Feb-
ruary 1993) A1 at A2. See also M. Falardeau-Ramsay, “The Changing Face of Human Rights in
Canada” (Spring 1993) Constitutional Forum 61 at 65.
6 3Mossop, supra note 7 at 579-80 (S.C.C.).
61bid. at 581-82, 587. Chief Justice Lamer was referring to a Charter challenge to the omission
of “sexual orientation” from the CHRA (i.e., indirect use of the Charter as in Haig), rather than
McGILL L4W JOURNAL
[Vol. 39
B. Egan v. Canada
Upon turning 65, James Egan applied for a “spouse’s allowance” under the
Old Age Security Act6′ for John Nesbit, his partner since 1948. His application
was rejected because Nesbit did not satisfy the requirement in the definition of
“spouse” in section 2 of the Act that he be “a person of the opposite sex.” Egan
and Nesbit brought an action seeking a declaration that the definition of
“spouse” is contrary to subsection 15(1) of the Charter. Martin J. dismissed
their action,’ and the Federal Court of Appeal (in a 2-1 decision) dismissed
their appeal.67 The majority of the Federal Court of Appeal appeared to give four
reasons for its decision, each of which will be considered in turn.
1.
The “Similarly Situated Test”
The plaintiffs could not argue that same-sex couples are “the same as” or
“similar to” opposite-sex couples68 because the “similarly situated test” (no dis-
tinctions may be made amongst “similarly situated” persons) was rejected in
Andrews v. Law Society of British Columbia.69 This reason shows a misunder-
standing of why the “similarly situated test” had to be rejected in Andrews and
the. extent to which “similarity of situation” remains relevant after Andrews. Jus-
tice McIntyre’s main criticism of the test in Andrews was that it might permit
a discriminatory law to be upheld if the law was in fact applied equally to all
to whom it applied.7′ I would suggest that this is not the best explanation for the
rejection of the test because it does not address the distinction made between
those to whom the law applies and those to whom it does not apply. The real
problem with the “similarly situated test” is that it does not tell us what kinds
of differences are permissible grounds of distinction because the difference
makes those excluded from the law “differently situated” (or unalike), nor what
kinds of differences are not permissible grounds of distinction, because those
excluded from the law remain “similarly situated” (or alike) in spite of the dif-
ference. The test could only be used to justify religious or racial discrimination”
if religion and race can be said to be permissible grounds of distinction, because
the persons affected by the discrimination (for example, persons who are Jewish
or of African origin) are “differently situated”. But the test does not tell us
whether these grounds of distinction are permissible. Indeed, it could be said to
be meaningless. In one sense, no two persons are “similarly situated”, because
no two persons are alike in all respects. In another sense, all persons are “sim-
ilarly situated” because we are all human beings. Which differences can be used
as the basis for distinctions in the law?
to direct use of the Charter as in Egan and Layland. But the questions of whether sexual orientation
is an analogous ground under subsection 15(1), and whether discrimination against a same-sex
couple is sexual orientation discrimination (under subsection 15(1) or a “post-reading-in” CHRA)
are the same in all three cases.
65Supra note 11, s. 19(1).
66[1992] I F.C. 687, 87 D.L.R. (4th) 320 (T.D.) [hereinafter Egan cited to F.C.].
67Supra note 7.
6 1bid. at 413, 471-74.
69[1989] I S.C.R. 143, 56 D.L.R. (4th) 1 [hereinafter Andrews cited to S.C.R.].
7 Ibid at 161-68.
71Ibid. at 166-67.
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CASE COMMENTS
The “enumerated or analogous grounds” approach adopted in Andrews
attempts to answer this question by identifying those differences (characteris-
tics) that cannot, prima facie, be used as grounds of distinction, unless a jus-
tification is established under section 1 of the Charter. Thus, it is no longer
sufficient to assert that the plaintiff who is denied the benefit and the persons
who are receiving the benefit are “similarly situated”. The difference between
the plaintiff and the benefited persons that has been used as a ground of dis-
tinction must be identified and involve an “enumerated or analogous ground”.
The only sense in which “similarity of situation” remains relevant after
Andrews is that the plaintiff must show that, apart from the difference between
the plaintiff and the benefited persons that involves an “enumerated or analo-
gous ground”, the plaintiff is in other respects “the same” as the benefited per-
sons, or is “otherwise qualified”. If this is the case, then the plaintiff should
establish a prima facie case of discrimination under subsection 15(1) of the
Charter. If the plaintiff is in some other respect different, then the “enumerated
or analogous ground” is not in fact the operative ground of distinction in his
or her case, and he or she does not have standing to challenge its use, unless
of course his or her exclusion because of the other difference is-itself directly
or indirectly discriminatory.
The plaintiffs in Egan argued that their relationship was “the same as” or
“similar to” that of an unmarried opposite-sex couple in all respects, except that
it involved persons of the same sex and therefore had a different sexual orien-
tation. Both Robertson J.A. and Mahoney J.A. accepted the trial judge’s finding
that, “had Nesbit been a woman cohabiting with Egan, substantially on the same
terms as he in fact cohabited with Egan, he would have been eligible for the
spouse’s allowance.”72 This argument was entirely consistent with Andrews in
that it sought to establish that the only difference between the plaintiffs and
recipients of the “spouse’s allowance” was one of sexual orientation (an “ana-
logous ground”), and that in all other respects they were “similarly situated”.
The majority misread the rejection of the “similarly situated test” in Andrews as
precluding any comparison between the plaintiff’s situation and that of the ben-
efited persons. If this were true, discrimination under subsection 15(1) of the
Charter could rarely be established, because a comparison is almost always nec-
essary to show unequal treatment. For example, a woman denied a position as
a firefighter solely because she was a woman, would compare herself with men
who had been hired and show that she was in all respects the same as them (in
terms of physical characteristics and other qualifications) except for her sex.
The majority’s reasoning would prevent her from doing so.
2.
“Irrelevant Personal Differences”
The plaintiffs could not succeed because “sexual orientation is both rele-
vant and essential to [their] argument,” whereas Andrews “defines discrimina-
tion in terms of a distinction based on an irrelevant personal difference.”73 Here
again, Robertson J.A. misapplied a concept mentioned by McIntyre J. in
72Egan, supra note 7 at 410, 458-59 (F.C.A.).
73Ibid. at 477.
44
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[Vol. 39
Andrews.7′ He correctly interpreted it as meaning that “sexual orientation is nei-
ther a valid criterion of disentitlement, nor a valid criterion of entitlement.”75
However, he mistakenly treated sexual orientation as a criterion of entitlement
in Egan by asserting that “it is the characteristic which makes them similar to
an opposite-sex (common law) couple and distinguishes them from other non-
spousal relationships.” ’76 In fact, the criterion of entitlement to a “spouse’s
allowance” is “being in a spousal or couple relationship.” It is this criterion that
should include opposite-sex and same-sex couples and exclude non-spousal or
non-couple relationships. What makes a same-sex couple similar to an opposite-
sex couple and different from persons in a non-couple relationship is “being a
couple”. What makes a same-sex couple different from an opposite-sex couple,
and what was in fact the criterion of disentitlement applied to the plaintiffs, is
“being a same-sex couple” (i.e., the couple’s sexual orientation). Thus, the dis-
tinction between same-sex couples and opposite-sex couples is based on an
“irrelevant personal difference” (sexual orientation). The distinction between
couples and non-couples is made on the basis of another difference (being or not
being in a couple relationship). Whether or not that difference may validly be
used as a ground of distinction under subsection 15(1) was not the issue before
the court in Egan.
By asserting that the plaintiffs were using their sexual orientation as a cri-
terion of entitlement, Robertson J.A. implied that they were seeking some kind
of “special treatment” not made available to non-couple relationships. In fact,
they were arguing that their couple relationship should not be treated less
favourably than opposite-sex couple relationships because of its sexual orienta-
tion. There is no “special treatment” of same-sex couples. The only “special
treatment” is of couples generally, most of whom are opposite-sex. The same is
true where a qualified doctor is denied a job because she is a woman. She is not
using her sex to obtain “special treatment” (an opportunity to practice medicine)
not made available to non-doctors. She is asking that the opportunity to practice
medicine made available to other qualified doctors not be denied to her because
of her sex. Any “special treatment” is as between all qualified doctors and non-
doctors.
Robertson J.A. also suggested that “the [plaintiffs’] claim for spousal ben-
efits represents a fundamental shift in the nature of the rationale underscoring
gay and lesbian rights in Canada.” 7 He characterized Haig, which involved dis-
crimination against gay, lesbian and bisexual individuals in military employ-
ment, as “based on the understanding that sexual orientation must remain an
74Supra note 69 at 165.
75Egan, supra note 7 at 477 (F.C.A.). I would suggest that this statement is generally correct,
except that sexual orientation could be a “valid criterion of disentitlement” in extremely rare cir-
cumstances in which a section I justification could be established, and could be a “valid criterion
of entitlement” in situations where subsection 15(2) applies or a section 1 justification (e.g., some
kind of “special need”) could be established.
76Ibid. at 474. See also ibid. at 413 where Mahoney J.A. stated that “[t]he distinction [between
‘homosexual couples’ and ‘non-conjugal couples’] is necessarily made on the basis of an irrelevant
personal difference, sexual orientation.”
771bid. at 475.
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CHRONIQUES DE JURISPRUDENCE
irrelevant consideration.”78 But there is no inconsistency or “fundamental shift”
between Haig and the plaintiffs’ claim in Egan. In both cases, sexual orientation
was used as a criterion of disentitlement, and the plaintiffs were seeking equal-
ity, without regard to sexual orientation. In Haig, the equality sought was
between gay, lesbian and bisexual individuals and heterosexual individuals in
the armed forces. In Egan, it was between same-sex couples and opposite-sex
couples. Thus, both cases are consistent with the “irrelevant consideration”
rationale for “gay and lesbian rights” and the “neutral difference” model (“sex-
ual orientation … should not be a basis for discriminatory treatment”), both of
which Robertson J.A. saw reflected in the Supreme Court’s interpretation of the
Charter in Andrews.79
Robertson J.A. found it puzzling that decriminalization of sexual activity
between men “was premised on an unarticulated right to privacy” and on courts
remaining outside “the bedrooms of the nation”, while the plaintiffs seemed to
be inviting the Court into their household to see its similarity to that of an
opposite-sex couple.” This merely illustrates the inadequacy of a “spatial pri-
vacy” rationale where sexual orientation discrimination affects, not private sex-
ual activity, but public situations such as public displaysof affection and recog-
nition of couple relationships. Gay, lesbian and bisexual individuals and
same-sex couples who are seeking the right to kiss and hold hands in public like
heterosexual individuals and opposite-sex couples, and the right to the same
benefits as opposite-sex couples, are not asking for “privacy” of a particular
space. Instead, they are seeking “equality” with heterosexual individuals and
opposite-sex couples in the respect given to their “personal autonomy”81, or
“privacy ‘ in making particular decisions 2 (which may require a “waiver” of
“spatial privacy” where comparison is necessary).
3.
The Ground of Distinction
The plaintiffs “do not benefit because of their non-spousal status rather
than because of their sexual orientation.” 3 This statement of Martin J. was
adopted by both Mahoney J.A. and Robertson J.A. as the ultimate conclusion
of their reasoning.84 Thus, even though they had both accepted that sexual orien-
tation is an analogous ground of discrimination under subsection 15(1),85 they
seemed to suggest that sexual orientation is not the operative ground of distinc-
tion in Egan. Instead, it is the distinction between spousal and non-spousal rela-
tionships. Martin J. asserted that
[t]he plaintiffs do not fall within the meaning of the word “spouse” any more than
heterosexual couples who live together and do not publicly represent themselves
781bid.
79Ibid. at 476-77.
80Ibid. at 475.
81See R. v. Morgentaler, [1988] 1 S.C.R. 30 at 171, 44 D.L.R. (4th) 385, Wilson J.
82On the distinction between “spatial privacy” and “decisional privacy”, see Bowers, supra note
83Egan, supra note 66 at 704 (F.C.T.D.).
14Egan, supra note 7 at 413, 486 (F.C.A.).
8 Ibid. at 410, 461.
20 at 203-204, Blackmun J., dissenting.
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as man and wife such as brother and sister,8 6 brother and brother, sister and sister,
two relatives, two friends, or parent and child. The [same-sex] couple fall [sic] into
the same category as those, i.e., the non-spousal couple category. 7
Martin J.’s use of the word “couple” is much broader than mine. I use “couple”
and “spouses” interchangeably and see both as implying an actual, potential or
past sexual relationship. Martin J. uses “couple” to mean a pair of individuals.
It is only in this sense that a brother and sister, or a parent and child (of opposite
sexes), could be described as “heterosexual couples”.”8 Once this meaning of
“couple” is understood, it becomes clear that the plaintiffs were not arguing that
they were a “same-sex couple” (in Martin J.’s terminology), but that they were
a “same-sex spousal couple”, that they should not have been included in a cat-
egory of “non-spousal couples”, and that they were excluded from the category
of “spousal couples” (for which they otherwise qualified) because the definition
of “spouse” as “opposite-sex spousal couple” discriminates on the basis of sex-
ual orientation.
Robertson J.A. ultimately characterized the plaintiffs’ action as “an in-
direct challenge to the common law and statutory concept of marriage, as
reflected in the definition of ‘spouse’.” 9 In fact, as Mahoney J.A. acknow-
ledged, it was a direct challenge to the incorporation of a discriminatory concept
of “common law marriage” into the Act’s definition of “spouse”.90 But he
treated the issue of “whether otherwise qualified same-sex couples should be
entitled to benefits available to opposite-sex ones,” of “whether we are prepared
to recognise that same-sex couples are no different from opposite-sex couples,”
as one which the Court could not address,9 presumably for the first two reasons
discussed above. Yet that was the issue raised by the plaintiffs’ action, and it did
involve a distinction based on “sexual orientation”, not one based on the “exis-
tence or non-existence of a spousal relationship”.
4.
“Discriminatory Impact”
The plaintiffs have not reached “the threshold of disadvantage that must be
demonstrated before the impugned legislation can be declared discriminatory.”’92
Robertson J.A. found that the “adverse impact” on same-sex couples was not
sufficient to make “the denial of the spouse’s allowance … cross the line from
‘distinction’ to ‘discrimination’.”
I will discuss below, in Part I.C.3, this “dis-
B6rhe possibility of lumping same-sex couples together with pairs of siblings illustrates one of
the limitations of a family status discrimination argument. See supra notes 55ff and accompanying
text.
87Egan, supra note 66 at 703-704 (F.C.T.D.) [emphasis added].
88
1t is not clear in what sense two brothers or two sisters can be described as “heterosexual
couples” if “heterosexual” means “of opposite sexes”. Perhaps Martin J. was referring to their indi-
vidual sexual orientations. See also Egan, supra note 7 at 412 (F.C.A.) where siblings are described
as “couples”.
89Ibid. at 485.
9He states that “[t]he attack is … on the failure of the definition to comprehend the concept of
common law marriage between persons of the same sex” (ibid. at 413).
91Ibid. at 485.
92Ibid. at 481.
93Ibid. at 486.
1994]
CASE COMMENTS
criminatory impact” requirement, introduced by Justice McIntyre in Andrews,
and the ways in which it has been expanded well beyond what seems to have
been its intended scope, and has thus distorted subsection 15(1) jurisprudence.
Here, I will only examine Robertson J.A.’s reasons for finding insufficient “dis-
criminatory impact”. His main argument (and primary concern) was that “the
definition of ‘spouse’ … excludes a broad class of [cohabiting] non-spouses,”
including “siblings, friends and relatives.”’94 He asked “whether [the] rights [of
same-sex couples] should be determined in isolation of those also affected by
the impugned legislation” and suggested that “same-sex couples are [not] more
deserving of the spouse’s allowance than those [in another non-spousal cate-
gory] whose financial needs may be just as substantial.”” He then rejected the
argument that the extension of the allowance to “siblings or parent or child” was
not before the Court, because it could “generate an inequality on the basis of
sexual orientation.”96 He concluded that proper consideration must be given, in
assessing “discriminatory impact”, to the fact that “the impugned legislation
excludes persons other than those who are members of a particular disadvan-
taged group.”97
I would suggest that Robertson J.A. ‘should have reached the opposite con-
clusion and ignored the fact that persons in non-spousal relationships do not
qualify for the benefit. Whether they “deserve” it as much as couples (not just
same-sex couples), and whether it is discrimination contrary to subsection 15(1)
of the Charter to exclude them, was not an issue before the Court. (They may
or may not be able to show the use of an enumerated or analogous ground, and
there may or may not be a section 1 justification for the discrimination.) Robert-
son J.A.’s approach amounts to saying that unless the plaintiff’s group is the
only category of persons denied a benefit or opportunity then a finding of dis-
crimination against the plaintiff cannot be made, because exclusion of another
category of persons from the benefit or opportunity might also be discrimina-
tion. If all questions of discrimination cannot be resolved in a single case, none
should be resolved. Thus, refusal to hire a qualified doctor because she is a
woman would not be sex discrimination because the vast majority of persons
(who are not qualified doctors) are denied the right to practice medicine. Sim-
ilarly, refusal to hire gay, lesbian and bisexual soldiers would not be sexual
orientation discrimination if persons with a particular disability were also
excluded. Moreover, a definition of “spouse” that excludes mixed-race couples
from a “spouse’s allowance” would not be race discrimination because persons
in non-spousal relationships are also excluded. These potential consequences of
Robertson J.A.’s approach demonstrate that it cannot be correct.
Robertson J.A. also asserted that the “benefit has been conferred on a nar-
row class of persons … who are in financial need because of a pattern of finan-
cial interdependency, characteristic of heterosexual couples, and which cannot
94Ibid. at 479.
95Ibid. Any inequality would be based on “existence or non-existence of a spousal relationship”
and not on sexual orientation. See Part I.B.2., above.
96Ibid. at 480.
971bid. at 481.
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… be deemed relevant to same-sex couples or … other non-spousal relation-
ships.””5 Here, Robertson J.A. introduced a requirement that is not found in the
Act. It provides for the payment of a “spouse’s allowance” to the “spouse of a
pensioner who is in receipt of a guaranteed income supplement,” which is based
on the combined incomes of the pensioner and his or her spouse. 99 It does not
require that the pensioner and the spouse demonstrate a “financial need because
of a pattern of financial interdependency”. The plaintiffs satisfied the financial
need requirement in the Act but were excluded by the definition of “spouse”.
Whether or not the sexual orientation discrimination in this definition could be
justified because a “pattern of financial interdependency” is more characteristic
of opposite-sex couples than same-sex couples is a matter that should only have
been considered under section 1 of the Charter.’
Robertson J.A. seemed unimpressed by the financial consequences of
denial of a “spouse’s allowance” or other spousal benefits to same-sex couples.
He suggested that same-sex couples could not be characterized as “an econo-
mically disadvantaged group.”. And, although he said that the plaintiffs in
Egan need not be “financially disadvantaged by the denial of benefits” (in not-
ing the apparently positive financial impact of the denial on them),” he stressed
the neutral or only slightly negative financial impact of a denial of benefits to
a same-sex partner in Karen Andrews and Knodel (forty-two dollars extra per
year in the latter case).’0 3 The reference to “economically disadvantaged groups”
raises the question of whether membership in such a group should be essential
for “discriminatory impact”. And the consideration of financial impact on the
plaintiffs may preclude claims of principle. It is hard to imagine that financial
impact would even be discussed if a mixed-race couple (excluded from a def-
inition of “spouse”) had to pay forty-two dollars extra per year for medical cov-
erage, or if a public bus fare were ten cents more for women than for men.
5.
The Dissenting Judgment
Linden J.A. found that there had been aprimafacie violation of subsection
15(1), that it could not be justified under section 1,” and that the appropriate
remedy was the “reading down” of the words “of the opposite sex” in section
2 of the Act, and the “reading in” of the words “or as in an analogous relation-
981bid. at 484.
991bid. at 411.
‘Even
if this assumption is correct, under the “minimal impairment” branch of the test in R.
v. Oakes ([1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200 [hereinafter Oakes cited to S.C.R.]) insertion
of a “financial interdependency” requirement into the Act would seem to be a viable alternative
to the exclusion of all same-sex couples.
’01Egan, supra note 7 at 484 (F.C.A.). Presumably, same-sex couples entitled to claim a spouse’s
allowance would be as “economically disadvantaged” as opposite-sex couples entitled to claim the
allowance.
12Ibid. at 458-59, n. 13.
‘031bid, at 468-71. See Karen Andrews, supra note 7; Knodel, supra note 7.
’14The plaintiffs conceded that the objective of the “spouse’s allowance program” is “pressing
and substantial”, therefore satisfying the first requirement of the Oakes test. I would argue that it
is the program’s opposite-sex definition of “spouse” (i.e., the limit on the Charter right) that must
have a “pressing and substantial” objective.
19941
CHRONIQUES DE JURISPRUDENCE
ship” after the phrase “publicly represent themselves as husband and wife.”” 5
He began by rejecting the conclusion of the majority that the plaintiffs “do not
benefit because of their non-spousal status rather than because of their sexual
orientation.” He described this reasoning as “circular” because the issue before
the Court was whether “the definition of ‘spouse’ … creates a distinction …
which is discriminatory on the basis of sexual orientation.”‘ 6
Turning to subsection 15(1) of the Charter, he found that the distinction
made in the definition of “spouse” “den[ies] otherwise qualified gay men and
lesbians the equal benefit of the law,”‘ 7 that “sexual orientation is an analogous
ground of discrimination for the purposes of s. 15(1),” ”
and that “gay men and
lesbians are … excluded … based on a matter [or characteristic] in relation to
sexual orientation.”” 9 He rejected Robertson J.A.’s argument that “admitting
one group [same-sex couples] to the benefits program would leave another
unjustly excluded,” holding that “[t]he better solution is to address the claim
before the Court, leaving other groups … to advance their own claims. ‘ .0
Finally, he was able to find that “the distinction [denying equal benefit of the
law] … drawn on the basis of an analogous ground” had a “discriminatory
impact … virtually … by definition,” because it affected a “disadvantaged
group”.”‘ In the course of a lengthy discussion of “discriminatory impact”, he
dismissed the majority’s argument that rejection of the “similarly situated test”
precludes comparative analysis. Instead, he argued that “a group raising a s. 15
challenge to a benefit-conferring scheme can legitimately compare itself to a
group receiving benefits under the scheme in order to establish that the exclu-
sion of the first group is discriminatory.””. He also said that “[t]he discrimina-
tory impact of denying benefits … cannot be measured in dollars and cents.”‘ 3
This judgment makes several points worth noting. First, Linden J.A.
departed from a recent trend which assumes that sexual orientation is an analo-
gous ground under subsection 15(1) of the Charter. Of six cases in which it has
been held (in the absence of binding authority) that sexual orientation is an ana-
logous ground,”4 counsel for the defendant government has conceded the point
in four cases (including Egan), and the deciding court (or tribunal) has accepted
that concession. Only in the first two cases, Veysey and Brown, did the courts
give any reasons for their conclusions. In Egan, the trial-judge”‘ and the major-
ity of judges in the Federal Court of Appeal” 6 all accepted the concession with-
“5Egan, supra note 7 at 450, 457.
‘061bid. at 41.7.
107Ibid. at 423.
‘0sIbid. at 430.
‘0l1bid. at 433.
“0 lbid. at 435.
“‘Ibid. at 438.
“21bid. at 436.
“31bid. at 443.
“4See Veysey, supra note 7; Knodel, supra note 7; Egan, ibid.; Leshner, supra note 7; Haig,
supra note 59; Brown v. British Cohlmbia (Minister of Health) (1990), 42 B.C.L.R. (2d) 294, 48
C.R.R. 137 (S.C.) [hereinafter Brown].
115Su1pra note 66 at 700 (F.C.T.D.).
“6 Supra note 7 (F.C.A.). Mahoney J.A. said that it was “conceded to be a ground analogous to
discrimination based on ‘sex”‘ (ibid. at 410).
McGILL LAW JOURNAL
[Vol. 39
out discussion. Only Linden J.A. went on to give reasons for his conclusion. He
referred to legislation prohibiting sexual orientation discrimination in Canada”7
and in the United States, and to “a person’s sexual orientation [having] been a
basis for discrimination and persecution throughout history.””‘ 8 He also
described gay men and lesbian women as “two historically disadvantaged
groups,”” 9 which are “legally, economically, socially and politically disadvan-
taged”, “suffer widespread stereotyping and prejudice”, “endure the constant
threat of verbal [and] physical abuse” and harassment, have experienced crimi-
nalization of their sexual activity and exclusion from the armed forces, and
“have often felt that they must conceal their lifestyles.”‘ 20
Although these factors are all arguably relevant, they do not address the
question of whether sexual orientation is immutable,’ or whether it is a choice
that must be respected. Nor do they consider the connection between being gay,
lesbian or bisexual and (to some) morally controversial same-sex sexual activ-
ity.’
It must be implicit in a finding that sexual orientation is an analogous
ground under subsection 15(1), and that the Charter prohibits some kinds of
sexual orientation discrimination (against gay, lesbian or bisexual individuals in
employment, or against same-sex couples), that the Charter would prohibit the
grossest form of sexual orientation discrimination (criminalization of same-sex
sexual activity) if Parliament were to re-enact such a prohibition. But what prin-
ciple would explain the Charter’s protection in such a case? Is it enough that
gay, lesbian and bisexual persons are a “disadvantaged group”? These issues
can make the question of whether sexual orientation is an analogous ground
more difficult than it appears” and have led to differing responses to cases of
sexual orientation discrimination under the United States Constitution and the
European Convention on Human Rights.24
117 bid. at 427. See the Quebec Charter of Human Rights and Freedoms, R.S.Q. c. C-12, s. 10;
Ontario Human Rights Code, supra note 47, ss. 1-6; Yukon Human Rights Act, S.Y. 1987, c. 3, s.
6; Manitoba Human Rights Code, S.M. 1987-88, c. 45, s. 9(2)(h); Nova Scotia Human Rights Act,
R.S.N.S. 1989, c. 214, s. 5(1)(n); New Brunswick Human Rights Act, R.S.N.B. 1973, c. H-11, ss.
1, 3-8, as am. by S.N.B. 1992, c. 30; British Columbia Human Rights Act, S.B.C. 1984, c. 22, ss.
3-6, 8-9, as am. by S.B.C. 1992, c. 42; Saskatchewan Human Rights Code, supra note 47, ss. 9-19.
“lbid. at 429.
“9 lbid at 428.
120Ibid. at 429-30.
121See Veysey, supra note 7 at 329 (F.C.T.D.).
‘2The absence of any blanket criminal prohibition of sexual activity between men or between
women in Canada since 1969 may explain why this issue is not raised, unlike in the United States
and in Council of Europe countries, where such prohibitions persist.
’23See R. Wintemute, “Sexual Orientation Discrimination and Constitutional Human Rights
Law: The United States Constitution, the European Convention on Human Rights, and the Cana-
dian Charter of Rights and Freedoms” (D.Phil. Thesis, Faculty of Law, University of Oxford, sub-
mitted 18 January 1993) c. 6 [to be published by Oxford University Press in 1995; copy deposited
with Supreme Court of Canada Library].
124European Convention for the Protection of Human Rights and Fundamental Freedoms, 4
November 1950, Eur. T.S. 5, 213 U.N.T.S. 221 [hereinafter European Convention]. See also Win-
temute, ibid., c. 2-5. Compare Bowers (supra note 20) with Dudgeon v. United Kingdom (1981),
Eur. Ct. H.R. Ser. A, No. 45. See also Toonen v. Australia (No. 488/1992) (31 March 1994), United
Nations Human Rights Committee Document No. CCPR/C/50/D/488/1992 [hereinafter Toonen],
in which the U.N. Human Rights Committee found that Tasmania’s prohibition of sexual activity
1994]
CASE COMMENTS
Second, Linden l.A. concluded that a distinction between same-sex and
opposite-sex couples is, “strictly speaking, … not a distinction based directly on
sexual orientation, since being in a same-sex relationship is not necessarily the
defining characteristic of being gay or lesbian.”‘” It is, however, a distinction
based “on a characteristic or matter related to sexual orientation, since it is les-
bians and gay men who may enter into same-sex relationships.”‘ 26 This is a nar-
row view of sexual orientation as a characteristic or status of an individual per-
son (e.g., an innate attraction or an identity), which does not include conduct
(e.g., sexual activity, couple relationships) in which that person chooses to
engage. Such a distinction is not unlike distinguishing between religious beliefs
and religious practices, and arguing that religion per se does not include the lat-
ter. A broader view of sexual orientation that includes the direction (as between
the sexes) of chosen conduct can apply not only to the sexual orientations of
individuals, but to particular instances of conduct (e.g., a same-sex couple rela-
tionship), which can also be said to have sexual orientations. 27 Because Linden
J.A. effectively extended the protection of the analogous ground of sexual ori-
entation to “related characteristics or matters”, he still concluded that discrim-
ination against a same-sex couple is discrimination on the ground of sexual ori-
entation, contrary to subsection 15(1). But such a narrow view of sexual
orientation could permit other judges to find that related conduct is not pro-
tected. This is the position in the United States, where judges, as a result of
Bowers v. Hardwick,”? have found it necessary to hold that a constitutional pro-
hibition of sexual orientation discrimination applies only to a status (being gay,
lesbian or bisexual), and not to conduct (engaging in same-sex sexual activ-
ity). 29
C. Layland v. Ontario (Minister of Consumer and Commercial Relations)
Todd Layland and Pierre Beaulne, partners of five months, went to the City
Clerk’s office in Ottawa on 16 January 1992 and applied for a marriage licence.
Their application was refused. They sought judicial review of the refusal and
argued that the common law definition of a marriage as restricted to two persons
of opposite sexes discriminates on the ground of sexual orientation, contrary to
subsection 15(1) of the Charter. The Ontario Divisional Court (in a 2-1 deci-
sion) dismissed their application, holding that “the common law limitation of
marriage to persons of opposite sex does not constitute discrimination … con-
trary to s. 15.”‘ 3’ Greer J., in dissent, found that the definition is a prima facie
violation of subsection 15(1) and cannot be justified under section 1 of the
Charter. She would have ordered, the Ministry to issue the marriage licence to
between men violates the right of privacy in Article 17 of the International Covenant on Civil and
Political Rights, 16 December 1966, 999 U.N.T.S. 171 [hereinafter International Covenant].
1’5Egan, supra note 7 at 432 (F.C.A.).
12 61bid.
127See generally Wintemute, supra note 2 at 492-98; Wintemute, supra note 123 at 182-90.
128Supra note 20.
129See Watkins v. United States Army, 875 F.2d 699 at 716-20, 723-25 (9th Cir. 1989), Nor-
ris J., concurring.
130Layland, supra note 7 at 667.
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[Vol. 39
the applicants and would have declared that “the prohibition of same-sex mar-
riages is unconstitutional and of no force and effect.”’31
1.
The Majority Judgment
The majority began by deciding, mainly by relying upon Re North and
Matheson (the first Canadian case in which a same-sex couple sought the right
to marry), 3 that “under the common law of Canada … a valid marriage can take
place only between a man and a woman, and that persons of the same sex do
not have the capacity to marry one another.”‘ 33 In considering whether this com-
mon law definition of marriage violates subsection 15(1), it held that “the dis-
advantage to the applicants … does not exist … independent of … [the legal] dis-
tinction” (implying that the applicants are not members of a “disadvantaged
group”), but that “professed homosexuals … make up a discrete and insular
minority,” before noting that the Ontario Court of Appeal had held in Haig that
sexual orientation is an analogous ground.”M After citing Justice McIntyre’s
requirement of “discriminatory impact” in Andrews, and the references of Jus-
tices McIntyre and La Forest to “irrelevant personal differences”,’35 the majority
went on to give three reasons for finding no “discrimination” under subsection
15(1) of the Charter.
First, the judges argued that “homosexuality” is “a matter of capacity” and
“not irrelevant” to the restriction of marriage to opposite-sex couples, because
one of the principal purposes of marriage is having children. This purpose “can-
not, as a general rule, be achieved in a homosexual union because of the bio-
logical limitations of such a union.” The argument that “some married couples
are unable or unwilling to have children, and that the incapacity or unwilling-
ness to procreate is not a bar to marriage” was dismissed, because “the insti-
tution of marriage is intended … to encourage the procreation of children.”’36
The majority did not consider the exceptions to its “general rule” that same-
sex couples cannot procreate. In fact, a female-female couple is in the same
position as a male-female couple in which the man is infertile. Both couples can
procreate using donor insemination (which is relatively easy to arrange), or they
can adopt a child. A male-male couple is in the same position as a male-female
couple in which the woman is infertile. Both couples can procreate with the
assistance of a surrogate mother (which could be very difficult to arrange), or
they can adopt a child.’37 Even assuming that marriage could justifiably be
13’Ibid. at 681,
132Supra note 5.
133Layland, supra note 7 at 663.
‘134Ibid. at 664-65.
.1351bid. at 665-66.
136Ibid. at 666.
137Compare Mossop, supra note 7 at 631 (S.C.C). Justice L’Heureux-Dub6, dissenting, and dis-
cussing “family” rather than “marriage”, said that
the Tribunal could not have accepted that the capacity to procreate limits the bound-
aries of family. If this were so, childless couples and single parents would not constitute
families. Further, this logic suggests that adoptive families are not as desirable as nat-
ural families.
1994]
CHRONIQUES DE JURISPRUDENCE
restricted to couples able and willing to have children with genetic input from
both partners, the majority acknowledged that the common law definition does
not do that. Rather, it permits all opposite-sex couples (who are not closely
related to each other) to marry regardless of procreative capacity or willingness
to have children, and excludes all same-sex couples even if they have already
procreated by alternative means or have adopted, or are able and willing to do
SO.
What is striking about the majority’s “procreative capacity” argument is
that it is an excellent example of an argument that should be made, not at the
“discriminatory impact” stage of a subsection 15(1) analysis, but rather under
section 1. At this stage it would have to satisfy the strict requirements of the R.
v. Oakes test.’38 Assuming that “encouraging procreation by providing benefits
to couples able and willing to have children with genetic input from both part-
ners” is a “pressing and substantial” objective, how could the means adopted
(providing the benefits to virtually all opposite-sex couples regardless of capa-
city or willingness to procreate) be said to be “rationally connected” to this
objective? The benefit is “overinclusive” in the same way as the burden (pre-
sumption of intent to traffic drugs) was in Oakes.
Second, the majority argued that there was no discrimination because gay,
lesbian and bisexual persons are free to marry a person of the opposite sex. The
fact that they do not do so “is the result of their own preferences, not a require-
ment of the law.”‘ 39 This kind of argument may be a consequence of the narrow
view of sexual orientation, discussed above, which perceives it to be a charac-
teristic of an individual (for example, being emotionally and sexually attracted
to persons of the same sex) and which does not include the direction (as
between the sexes) of the conduct he or she chooses as a result of his or her sex-
ual orientation (for example, choosing to marry a person of the same sex). Ima-
gine a zoning law that permitted the construction of Christian churches but no
other places of worship. It would not be argued that there was no discrimination
based on religion because Jews, Muslims, Hindus, Sikhs and Buddhists were
free to attend a church, and that not doing so was “the result of their own pref-
erences, not a requirement of the law.” It is true that the exclusion of same-sex
couples affects a gay, lesbian or bisexual individual because of his or her choice
of a same-sex partner. But that choice is part of his or her sexual orientation, and
prohibiting discrimination based on sexual orientation means respecting that
choice, just as prohibiting discrimination based on religion means respecting
both religious beliefs and religious practices. 4’
Third, the majority held that “[u]nions of persons of the same sex are not
‘marriages’, because of the definition of marriage,” and that the applicants could
138Supra note 100 at 138-40.
139Layland, supra note 7 at 667.
140Commentators who have also drawn an analogy between sexual orientation and religion
include B. Ryder, “Equality Rights and Sexual Orientation: Confronting Heterosexual Family Priv-
ilege” (1990) 9 Can. J. Fam. L. 39 at 80-81; D. Herman, “Are We Family?: Lesbian Rights and
Women’s Liberation” (1990) 28 Osgoode Hall L.J. 789 at 811, n. 88; R. Mohr, Gays/Justice: A
Study of Ethics, Society and Law (New York: Columbia University Press, 1988) at 189-91.
McGILL LAW JOURNAL
[Vol. 39
not “use s. 15 of the Charter to bring about a change in the definition of mar-
1 The effect of this statement is to give the common law definition of
riage.”
marriage, as confined to opposite-sex couples, some kind of constitutional status
superior to that of the Charter. This is hard to understand. Surely, the only kind
of definition that could override subsection 15(1) of the Charter is one found
within the Charter itself or elsewhere in the Constitution, and not one found in
a (non-subsection 33(1)) statute, a regulation or a common law rule. As Mcln-
tyre J. stated in R.W.D.S.U. v. Dolphin Delivery Ltd., executive or administrative
action “will … be unconstitutional to the extent that it relies for authority or jus-
tification on a rule of the common law which constitutes or creates an infringe-
ment of a Charter right or freedom…. [T]he Charter will apply to the common
law … in so far as the common law is the basis of some governmental action
… ,”4 The decision of the Ottawa City Clerk’s Office to refuse a marriage licence
is certainly the action of a government under paragraph 32(l)(b) of the Charter.
2.
The Dissenting Judgment
Unlike the majority, Greer J. found that, because “[t]he common law … is
able to grow to meet the expanding needs of society … there is no common law
prohibition against same-sex marriages in Canada.”’43 However, such a finding
is, on its own, an invitation to the legislature to introduce a statutory prohibi-
tion.'” Thus, it is fortunate that she went on to consider whether a restriction
of marriage to opposite-sex couples violates subsection 15(1) of the Charter.
She began by observing that “the applicants have been denied their right to
choose whom they wish to marry.”‘ 45 Furthermore, she described “the right to
choose” as “a fundamental right” and described “s. 15 guarantees” as being
“designed to protect the individual’s right to choose.”’46 She thus recognised the
importance of protecting chosen conduct, which is essential if the Charter is to
provide meaningful protection against sexual orientation discrimination. She
then found that the applicants had demonstrated that they have been subjected
to “unequal treatment under the law” on the basis of their sexual orientation, an
analogous ground both on the authority of Haig and because “homosexuals have
been politically powerless” (like non-citizens), and “subject to negative treat-
ment and bigotry.”‘ 47 She also found “discriminatory impact” in that the exclu-
sion from marriage is “burdensome on the applicants” and sends the message
that “they are inferior persons in our society.”‘ 48
Having found a prima facie violation of subsection 15(1), Greer J. then
considered whether “the preservation of traditional heterosexual families” could
14’Layland, supra note 7 at 667.
142[1986] 2 S.C.R. 573 at 599, 33 D.L.R. (4th) 174. See also R. v. Swain, [1991] 1 S.C.R. 933
at 968, 66 C.C.C. (3d) 481: “[I]f a common law rule is inconsistent with … the Constitution, it is
… of no force or effect …”
143Layland, supra note 7 at 667-68.
144Compare art. 365 C.C.Q.: “Marriage may be contracted only between a man and a woman…”
145Layland, supra note 7 at 672.
14 61bid.
1471bFd. at 674-75.
14’Ibid. at 674.
1994]
CASE COMMENTS
justify the exclusion of same-sex couples from marriage under section 1 of the
Charter. She described such a purpose as “discriminatory” and therefore invalid
under the first limb of the Oakes test. She also held that it fails the second, pro-
portionality, limb of the test in that there is “no rational connection between sup-
porting heterosexual families and denying homosexuals the right to marry.” The
exclusion of same-sex couples does not advance the goal, and their inclusion
does not “prevent heterosexuals from marrying.” She concluded that “the inter-
ests of gays and lesbians cannot be fully accommodated without the incidents
of marriage … “, Some might argue that “the preservation of traditional hetero-
sexual families” is a legitimate goal of government, and that there is a rational
connection between such a goal and the exclusion of same-sex couples from
marriage in that the exclusion might encourage some gay, lesbian and bisexual
persons to choose opposite-sex couple relationships to be able to obtain the ben-
efits of marriage. But if the purpose of the common law definition of marriage
is to give gay, lesbian and bisexual persons an incentive to “convert”, and to
interfere with their choice of sexual orientation, that would be as unconstitu-
tional a purpose as that of the Lord Day’s Act (coercing observance of the Chris-
tian Sabbath) in R. v. Big M Drug Mart Ltd.,5’ or any other legislation seeking
to influence an individual’s choice of religion. Once it is accepted that subsec-
tion 15(1) prohibits sexual orientation discrimination, a purpose of influencing
a person’s choice of sexual orientation cannot be used as a justification under
section 1.
-3.
The Distorting Effect of the “Discriminatory Impact” Requirement
A full analysis of subsection 15(1) jurisprudence lies well beyond the
scope of this comment. But there is one aspect of it that figures prominently in
Egan and Layland. This is Justice McIntyre’s requirement in Andrews that, in
addition to (1) a distinction (denying equality before or under the law, or the
equal protection or equal benefit of the law), which is (2) based on an enumer-
ated or analogous ground, the plaintiff must show (3) that “the legislative
impact of the law is discriminatory.”
Justice McIntyre’s discussion in
Andrews of the effect of the rule that lawyers must be citizens in order to prac-
tise law within a given province, seems to indicate the meaning of his third
requirement: merely “not receiving equal treatment” or a “differential impact”
is not enough; the law must impose a “burden” on the plaintiff, so that “obvi-
ously trivial and vexatious” claims will be screened out.152 However, Justice
1491bid. at 677-78.
150[1985] 1 S.C.R. 295 at 347-51, 18 D.L.R. (4th) 321.
151Supra note 69 at 182.
’52Ibid. at 151, 182. See also R. v. Hess, [1990] 2 S.C.R. 906 at 941, 79 C.R. (3d) 332,
McLachlin J. [hereinafter Hess cited to S.C.R.]: “[I]t is sufficient to establish a violation of s. 15
to show that a distinction is drawn on the enumerated or analogous grounds, and that the distinction
results in a burden being placed on the complaining individual or group”; McKinney, supra note
61 at 278, La Forest J.: a distinction based on an enumerated ground that “impose[s] burdens on”
affected individuals is enough for a prima facie violation of subsection 15(1)1 Haig v. Canada,
[1993] 2 S.C.R. 995 at 1043, 156 N.R. 81, L’Heureux-Dub J.: a complainant must show that “the
law has a negative impact”; Rodriguez v. British Columbia (A.G.), [1993] 3 S.C.R. 519 at 552, 158
N.R. 1, Lamer C.J., dissenting: the inequality must “impose … a disadvantage or burden”.
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[Vol. 39
Wilson transformed the third requirement, in subsequent cases, into a require-
ment that the plaintiff show that he or she is a member of a “disadvantaged
group”,” 3 or that the distinction involves “prejudice [bias] or stereotype”.’54
Both Justice McIntyre’s and Justice Wilson’s versions of the “discriminatory
impact” requirement can be questioned, but each has a relatively limited scope.
The problem with the “discriminatory impact” requirement is that courts such
as those in Egan and Layland, inspired by statements of Justice Wilson in
Andrews and Turpin,”‘5 are using the third requirement as the pretext for a wide-
.ranging discussion of the “larger social context”. This has at least two negative
consequences.
First, it permits justifications for discrimination, which should only be con-
sidered under section 1, to creep in at the subsection 15(1) stage. Consideration
of these justifications may lead to the conclusion that there has been no “dis-
crimination” under subsection 15(1), and consequently, that no justification
under section 1 is required. This undermines the distinction that Justice McIn-
tyre made in Andrews between the roles of subsection 15(1) and section 1:
“Where discrimination is found a breach of s. 15(1) has occurred and … any jus-
tification, any consideration of the reasonableness of the enactment … would
take place under s. 1.”56 This followed from his rejection of the approach which
defines discrimination under subsection 15(1) as “an unjustifiable or unreason-
able distinction,” under which “the determination would be made under s. 15(1)
and virtually no role would be left for s. 1.’ Making the determination under
subsection 15(1) deprives the plaintiff of the benefit of the Oakes test and the
presumption of unconstitutionality that prevails at the section 1 stage.
The judgments in Egan and Layland abound with examples of justifica-
tions for sexual orientation discrimination being considered as potential reasons
why there has been insufficient “discriminatory impact”, and therefore no “dis-
crimination”. Robertson J.A., in Egan, considered the exclusion of other groups
from the benefit, which should not even be a justification under section 1, but
only a potential basis for a separate subsection 15(1) claim.’58 He also argued
that the benefit is aimed at a “pattern of financial interdependency, characteristic
of heterosexual couples,” which is a section 1 issue.’59 His references to finan-
cial impact 6′ are at least in keeping with Justice McIntyre’s “burden” version
of “discriminatory impact”, but they illustrate the potential of this version to
exclude subsection 15(1) claims where a distinction injures feelings, or has a
symbolic or stigmatizing effect but does not injure the pocketbook. And his
“3R. v. Turpin, [1989] 1 S.C.R. 1296 at 1330-33, 48 C.C.C. (3d) 8 [hereinafter Tttrpin cited to
S.C.R.]. In Haig v. Canada (ibid.), L’Heureux-Dub6 J. required that the complainant’s group be
not only one defined by an enumerated or analogous ground but also a “discrete and insular minor-
ity group.”
154McKinney, supra note 61 at 387, 391-93, 413.
155See Andrews, supra note 69 at 152; Turpin, supra note 153 at 1331-32.
156Ibid. at 182.
1571bid. at 181-82.
’58Supra note 7 at 395-97 (F.C.A.).
‘Ibid. at 400.
‘6Ibid. at 388.
1994]
CHRONIQUES DE JURISPRUDENCE
reference to “economic disadvantage”,’ 6′ although consistent with Justice Wil-
son’s “disadvantaged group membership” version of “discriminatory impact”, is
symptomatic of the increasingly common argument that gay, lesbian and bisex-
ual persons should be denied protection against discrimination if it can be
shown that they have higher per capita incomes than heterosexual persons62
Linden J.A. (in dissent) could have concluded his subsection 15(1) analysis
by finding that “a distinction is drawn on the basis of sexual orientation [an
analogous ground] with the effect that gay and lesbian partners [a disadvantaged
group] are denied benefits … “16 But he went on to consider the government’s
argument about “economic, administrative and institutional considerations”
(section 1 issues) and to discuss in some detail “the impact of other legislative
benefit schemes,” even after stating that this impact “should only be considered
under the s. 1 analysis, not under … s. 15.”‘” As for Layland, the majority’s
“procreative capacity” justification has been discussed above, 65 while Greer J.’s
“discriminatory impact” analysis was limited to findings of “burden” and “mes-
sage of inferiority”. 66
Second, the “discriminatory impact” requirement has been used by the ma-
jorities in Egan and Layland to find no “discrimination”, contrary to subsection
15(1), even though there was a distinction based on the analogous ground of
sexual orientation. This renders the finding that sexual orientation is an analo-
gous ground practically meaningless. Justice McIntyre’s version of “discrimina-
tory impact” was intended to exclude “obviously trivial and vexatious claims”,
which is not true of the claims in either Egan or Layland. Justice Wilson’s ver-
sion of “discriminatory impact” was intended to exclude distinctions affecting
members of “advantaged groups”, or not involving “prejudice [bias] or stereo-
type”, which presumably would not be true of distinctions affecting the gay, les-
bian and bisexual minority. Why is this happening? Why do the courts not move
quickly to section 1 after a plaintiff, who is arguably a member of a “disadvan-
taged group”, establishes a distinction based on an analogous ground under sub-
section 15(1)?
I wouldsuggest that, in the move from “formal equality” to “substantive
equality” reflected in Andrews, the baby (“formal equality”) has been thrown
out with the bath water (the “similarly situated test”). The concept of “substan-
tive equality” can be seen as an important supplement to the concept of “formal
equality”, especially when it addresses the exclusion of a group that results from
its differences, and in spite of the provision of “formal equality” (equal treat-
ment of individuals).. But “formal equality”, as it relates to groups defined by
enumerated or analogous grounds, is an essential aspect of “equality”. It tends
1611bid. at 400.
162See e.g. “Right against Rights” Perceptions [Saskatoon] (28 October 1992) 9 (argument used
by REAL Women of Saskatchewan in opposing the addition of “sexual orientation” to Saskatche-
wan’s human rights legislation).
163Egan, supra note 7 at 363 (F.C.A.).
1641bid. at 363, 365-67.
165See supra notes 136-38 and accompanying text.
166Layland, supra note 7 at 675.
McGILL LAW JOURNAL
[Vol. 39
to be trivialized by groups (for example, women and racial minorities) that have
already largely achieved it (in the sense of the absence of formal sex and race
distinctions in legislation). However, for groups such as gay, lesbian and bisex-
ual persons who have yet to achieve it, and face potentially hundreds of sta-
tutes 67 with express distinctions based on sexual orientation, “formal equality”
looks quite attractive.
The same-sex couples in Mssop, Egan, and Layland were all seeking, at
least initially, “formal equality” with opposite-sex couples. What the “discrimi-
natory impact” requirement has done, primarily in the name of “substantive
equality”, is to eliminate any presumption that a clear denial of “formal equal-
ity” based on an enumerated or analogous ground is “discrimination” contrary
to subsection 15(1). It would seem that even a blatant distinction disfavouring
women or a racial minority would not automatically be a prima facie violation
of subsection 15(1), triggering a section 1 analysis. Instead, a (potentially
lengthy) assessment of “discriminatory impact” would be required to determine
whether, taking into account “the larger social context”, the distinction was in
fact beneficial or detrimental to the group in question. I would suggest that the
requirement should be abandoned, and that any distinction based on an enumer-
ated or analogous ground (not saved by subsection 15(2)) should be referred
automatically168 to section 1.169 Failing that, the requirement should at least be
rethought and defined more precisely.
D. Baehr v. Lewin
In spite of the majority’s implication in Mossop that a Charter argument
might make a difference, same-sex couples making such an argument (discrimi-
nation based on sexual orientation, contrary to subsection 15(1)) have so far
failed in Egan and Layland.70 Shortly after these three Canadian decisions, the
‘ 67See Egan, supra note 7 at 398 (F.C.A.) (over 50 federal statutes); Coalition for Lesbian and
Gay Rights in Ontario, Happy Families: The Recognition of Same-Sex Spousal Relationships
(Brief to the Ontario legislature recommending amendments to over 30 Ontario statutes, Toronto,
April 1992).
168Robertson J.A., in Egan (ibid.), recoiled from the suggestion that a “distinction [based on an
analogous ground]” would automatically lead to a finding of “discrimination”:
[Ihe … [plaintiffs] ask that we declare those provisions of approximately 50 federal
statutes which define rights and obligations on the basis of spousal status as being a
violation of s. 15(1) … Without question, that result is antithetical to the reasoning
advanced in Andrews.
Is the number of statutes not just a measure of the extent of denial of “formal equality” at the fed-
eral level?
169The “larger social context” should be examined under section 1, as Justice McLachlin did in
Hess (supra note 152 at 956-58), and Justice La Forest did in McKinney (supra note 61 at
298-318). Compare W. Black & I. Grant, “Equality and Biological Differences” (1990) 79 C.R.
(3d) 372 at 379-80. In Weatherall v. Canada (A.G.) ([1993] 2 S.C.R. 872, 105 D.L.R. (4th) 210),
Justice La Forest suggested that the clear sex distinction at issue in the case might not be “discrim-
ination” at all under subsection 15(1), in view of the “larger social context”, but found that, in any
event, it was justified under section 1.
170The sexual orientation discrimination argument was accepted by trial courts and a human
rights tribunal in Veysey,Knodel and Leshner (supra note 7), but has yet to be accepted by an appel-
late court in a same-sex couple case.
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CASE COMMENTS
Supreme Court of Hawaii held in Baehr v. Lewin that exclusion of same-sex
couples from marriage is discrimination based, not on sexual orientation, but on
sex, an enumerated ground in article I, section 5 of the Hawaii Constitution. 7’
It remanded the case to the trial court to determine whether any “compelling
state interests” exist which would justify this sex discrimination. 72 Would a sex
discrimination argument under the CHRA ’71 or the Charter have been a possi-
bility in Mossop? Would a sex discrimination argument under the Charter have
made a difference in Egan”4 or Layland?75
I.
Is Sexual Orientation Discrimination Sex Discrimination?
Sexual orientation can be seen as the direction (to the opposite sex, the
same sex, both, or neither) of a person’s attraction to “emotional-sexual con-
duct” (his or her “emotional-sexual attraction”), or of his or her actual choice
of “emotional-sexual conduct”, whether of a particular instance of such conduct
or of such conduct generally. By “emotional-sexual conduct” I mean any kind
of activity or relationship involving two (or more) persons that has, or could be
perceived as having, both emotional and sexual aspects or a purely sexual
aspect, including private sexual activity, public displays of affection, and the
formation of couple relationships. In treating sexual orientation as the direction
of a person’s emotional-sexual attraction, or as the direction of a person’s
emotional-sexual conduct, one focuses on the direction of desired or actual
emotional-sexual conduct, that is, the sex of the partner with whom the person
desires to engage, or actually engages, in the conduct. However, the direction
of a particular instance of conduct (i.e., opposite-sex or same-sex) is merely the
combination of the sexes of the two persons (A, the choosing person, and B, the
chosen partner) engaging in the conduct. (These choices are, of course, recipro-
cal.)
Suppose that A has been treated unequally because of his or her choice of
B. Instead of taking the sex of A as given (i.e., a person of a particular sex is
choosing a partner), and looking at the sex of B to determine whether it is A’s
choice of B that has caused A to be treated unequally, one can take the sex of
B as given (i.e., a person of a particular sex is being chosen), and look at the
or be discriminated against … because of … sex…”
171Supra note 13 at 50, n. 5: “No person shall … be denied the equal protection of the laws …
172Ibid. at 74.
173See Nielsen, supra note 7; Guevremont, supra note 7.
174Such an argument was made at the trial in Egan (supra note 66 at 701-702), but was with-
drawn in the Federal Court of Appeal (supra note 7 at 459).
175It must be acknowledged that a sex discrimination argument might not make a difference in
Canada, because courts have had no difficulty in concluding that sexual orientation is an analogous
ground, whereas courts in the U.S. have interpreted Bowers (supra note 20) as precluding a finding
that sexual orientation is a “suspect classification”. See e.g. Padula v. Webster, 822 F.2d 97 (D.C.
Cir. 1987). If a court’s reason’for deciding against a same-sex couple is either a lack of “discri-
minatory impact” or section 1, a sex discrimination argument would not make a difference. If, like
the majorities in Egan and Layland, a court does not see sexual orientation as the operative ground
of distinction, a sex discrimination argument might help. It would also be useful where a human
rights act prohibits discrimination based on “sex”, but not “sexual orientation”, and a court declines
to follow Haig.
REVUE DE DROIT DE McGILL
[Vol. 39
sex of A to determine whether it is A’s sex, rather than A’s choice of B, that has
caused A to be treated unequally. In other words, if a man chooses a man, it is
just as much his sex (male) that is the source of the objection (because only a
woman may choose a man) a6 it is his choice of a man (because a man may only
choose a woman). When one focuses on the sex of the choosing person, rather
than the sex of the chosen partner, one realizes that it is the choosing person’s
sex which makes his or her choice of direction of emotional-sexual conduct (sex
of partner) and his or her direction of emotional-sexual attraction objectionable,
and which therefore constitutes the ground of distinction. Why then is it not
obvious that discrimination on the basis of sexual orientation is nothing more
than discrimination on the basis of sex?’76
A. The Traditional Response
Six reported decisions in Canada appear to have dealt with the argument
that sexual orientation discrimination is sex discrimination:” Re Board of Gov-
ernors of the University of Saskatchewan and Saskatchewan Human Rights
Commission’78 and Vogel I, under provincial human rights legislation, Knodel
and Egan, under the Charter, and Nielsen and Gtevremont, under the CHRA.179
In University of Saskatchewan, a gay lecturer, Douglas Wilson, challenged the
suspension of his right to supervise practice teaching in public schools. Johnson
J. prohibited the Human Rights Commission from investigating the complaint,
holding that the “sex” of a person meant “whether or not that person was a man
or a woman,” not their “sexual orientation, … sexual proclivity, or sexual activ-
ity.”‘ 0 In Vogel I, a Board of Adjudication relied on University of Saskatchewan
176The owner of the copyright to Cole Porter’s musical “Anything Goes” refused to permit a pro-
duction that changed the sex of a character, casting a male actor in the lead female role and “turning
the tuneful 1920s romp into a gay romance” (“Anything goes … almost” The Economist (4 May
1991) 92).
177Gay Alliance (supra note 28 at 461) is often cited as an authority rejecting this interpretation.
See A. Bruner, “Sexual Orientation and Equality Rights” in A. Bayefsky & M. Eberts, eds., Equal-
ity Rights and the Canadian Charter of Rights and Freedoms (Toronto: Carswell, 1985) 457 at
461-63; W. Tamopolsky, Discrimination and the Law in Canada (Don Mills, Ont.: De Boo, 1982)
at 257-58; M. Eberts, “Sex-Based Discrimination and the Charter” in Bayefsky & Eberts, eds.,
ibid., 183 at 213, n. 77. However, the statement of Dickson J. that sexual orientation was not
included in the list of prohibited grounds in the former Human Rights Code of British Columbia
(S.B.C. 1973, c. 119, ss. 3, 18) must be treated as an observation that sexual orientation was not
expressly included in the list. An attempt to infer a rejection of the argument that sexual orientation
was implicitly included in the ground “sex” is not warranted because the argument does not appear
to have been made (at least, the Supreme Court’s decision does not mention it). See Black, supra
note 29 at 650, n. 7.
katchewan cited to D.L.R.].
171(1976), 66 D.L.R. (3d) 561, [1976] 3 W.W.R. 385 (Sask. Q.B.) [hereinafter University of Sas-
179Supra note 7. See also Haig, supra note 59 at 502: “Homosexual persons … fall within a
ground analogous to the … ground of sex
180Supra note 178 at 564. The Saskatchewan Court of Appeal later said that Johnson J. erred
in issuing the order of prohibition and should have allowed the Commission to consider the com-
plaint. See Re CIP Paper Products Ltd. and Saskatchewan Human Rights Commission (1978), 87
D.L.R. (3d) 609 at 612. See also Re Damien and Ontario Human Rights Commission (1976), 12
O.R. (2d) 262 (Div. Ct.), in which a gay employee of the Ontario Racing Commission was dis-
missed and the Ontario Human Rights Commission refused to investigate his complaint, holding
19941
CHRONIQUES DE JURISPRUDENCE
in upholding the denial of dental plan benefits to Richard North, the male part-
ner of Chris Vogel, a male government employee (the male “common-law
spouse” of a female employee would have qualified for the benefits).’ More
recently, in Knodel, s2 Egan,”s3 Nielsen”M and Guevremont,185 each of which con-
cemed a denial of benefits to a same-sex partner, sex discrimination arguments
under subsection 15(1) or the CHRA were rejected.
The reasoning in University of Saskatchewan and Vogel I, which will be
examined below, has not been seriously questioned by commentators. Most
have accepted these decisions as conclusive authority that “sex” in human rights
legislation, and by extension in subsection 15(1) of the Charter, does not
include sexual orientation.” 6 In the Charter context, Anne Bayefsky has sug-
gested that the open-endedness of subsection 15(1) makes it unnecessary to
determine whether “sex” includes “sexual orientation” (or “pregnancy”). s7 But
Nicole Dupl6 has observed that sex, rather than sexual orientation (understood
narrowly as direction of attraction), will often be the ground of distinction used
in legislation (e.g., providing the right to marry or claim tax benefits) that treats
same-sex couples unequally.’
(No man may marry another man; it is not the
case that heterosexual men may marry each other, but gay and bisexual men
may not.) And Wendy Williams has recognised that “discrimination against
homosexuals and sex-distinct grooming codes … are the ultimate sex discrimi-
nation (in the sense of sex distinction) and therefore invisible to us as such.’ I89
that “sex” did not include “sexual orientation”. The decision containing the reasoning for this hold-
ing does not appear to have been reported. Compare Perceptions [Saskatoon] (12 June 1991) 18
(Nova Scotia Human Rights Commission announced in 1990 that it would investigate sexual orien-
tation discrimination complaints using a statutory prohibition of sex discrimination).
181Supra note 7 at D/1656-57. Chris Vogel filed his complaint again in 1988 after sexual orien-
tation was included in the new Manitoba Human Rights Code. His complaint was dismissed again
in Vogel II (supra note 7). In refusing to permit him to relitigate the sex discrimination issue,
Hirschfield J. said (ibid. at 97) that “‘[slex’ in the Code still refers to gender and not sexual pref-
erence.”
‘8 2Supra note 7 at 742-43.
’83Supra note 66 at 701-702 (F.CT.D.).
184Supra note 7 at 570, 573-74.
‘8 5Supra note 7 at 115.
l8 6See Bruner, supra note 177 at 459-63; Eberts, supra note 177 at 213 (argument against inclu-
sion described as* “technical”); M.A. Hickling, “Employer’s Liability for Sexual Harassment”
(1988) 17 Man. L.J. 124 at 137; P. Hughes, “Feminist Equality and the Charter: Conflict with Real-
ity?” (1985) 5 Windsor Y.B. Access Just. 39 at 81-82; Tarnopolsky, supra note 177; M. Leopold
& W. King, “Compulsory Heterosexuality, Lesbians, and the Law: The Case for Constitutional Pro-
tection” (1985) 1 C.J.W.L. 163 at 176-77.
‘8 7″Defining Equality Rights” in Bayefsky & Eberts, eds., supra note 177, 1 at 48-49. Compare
Bordeleau v. R. (1989), 32 F.T.R. 21 at 26: “[It] must be resolved [under subsection 15(1)] …
whether discrimination based on sex also covers discrimination involving sexual orientation.” For
further discussion of discrimination based on pregnancy, see infra notes 213-20 and accompanying
text.
’88″Homosexualit6 et droits A l’6galit6 dans les Chartes canadienne et qu6bdcoise” (1984) 25 C.
189″Sex Discrimination under the Charter: Some Problems of Theory” (1983) 4 C.H.R.R. C/83-1
at C/83-9, C/83-10. See also G. Brodsky & S. Day, Canadian Charter Equality Rights for Women:
One Step Fonvard or Two Steps Back? (Ottawa: Canadian Advisory Council on the Status of
Women, 1989) at 54 (supporting the sex discrimination argument); L.A. Tumbull, “Brooks, Allen
de D. 801 at 825.
McGILL LAW JOURNAL
[Vol. 39
B. Why the Answer Is Not So Obvious
The logic underlying the view that sexual orientation discrimination is not
sex discrimination is spelled out clearly in Vogel I:
Both males and females are treated the same under the Dental Services Plan.
The entire issue in this case arises not because Mr. Vogel is a male but because
he chooses to live with another male for whom he seeks dental benefits … Denial
of benefits to [his male partner] arises because of Mr. Vogel’s sexual preference
[i.e., his choice of a same-sex partner] and not his gender.190
This kind of analysis implicitly assumes that the discrimination is based, not on
the plaintiff’s sex, but on the plaintiff’s choice between two different kinds of
conduct (same-sex and opposite-sex). 9’ However, the sex discrimination at
work here is rendered invisible (i) by incorporating the sex-based distinction
into the definitions of the two kinds of conduct, and (ii) by creating the illusion
of equal treatment of men and women, in that the same treatment seems to be
applied to both men and women choosing each kind of conduct. Thus, the rea-
soning in Vogel I permits the assertion that a denial of benefits to persons choos-
ing same-sex conduct applies to all equally, regardless of sex, because men
choosing such conduct with men are treated the same as women choosing such
conduct with women. Similarly, a grant of benefits to persons choosing
opposite-sex conduct applies to all equally, regardless of sex, because every
man or woman” is permitted to choose such conduct.
This illusion of equal treatment was accepted by Rowles J. in Knodel:
[Tihe effect of the legislation is not aimed at a characteristic related to gender. The
definition of “spouse” … affects both men and women who are engaged in a homo-
sexual relationship. Further, there is no indication that the discriminatory effects
fall entirely on men … Sexual orientation is not gender specific nor is it a charac-
teristic that affects one gender primarily. 192
In Egan, Martin I. merely quoted this reasoning and stated his agreement with
it.’93 In order to unmask the sex discrimination that occurs in cases such as Vogel
I, Knodel and Egan, one must (i) expose the sex-based distinction that is being
used, and (ii) show that the “mirror-image symmetry” of its application to both
sexes does not constitute equal treatment.
1.
The Hidden Sex-Based Distinction
Presenting the choice in Vogel I as between living (in a couple relationship)
with a person of the same sex as the choosing person (same-sex conduct, pro-
hibited to all without regard to sex), or living with a person of the sex opposite
to that of the choosing person (opposite-sex conduct, permitted to all without
& Dixon v. Canada Safeway Ltd. – A Comment (Bliss Revisited)” (1989) 34 McGill L.J. 172 at
182-83 (“sex” equals “gender” view described as narrow).
190Supra note 7 at D/1657 [emphasis addedl.
191See Hickling, supra note 186 at 137 (the protected class is defined “by reference to the kind
of sexual activity involved”).
192Supra note 7 at 743. See also Guevremont, supra note 7 at 115.
193Supra note 66 at 701-702 (F.C.T.D.).
1994]
CASE COMMENTS
regard to sex), incorporates the choosing person’s sex into the definitions of the
two kinds of conduct in respect of which there is discrimination. This misrep-
resents the choice between these two kinds of conduct (and hides the sex dis-
crimination) by assuming that the choosing person’s sex is (together with the
chosen partner’s sex) an inherent part of the definitions of these two kinds of
conduct. Excluding the choosing person’s sex from the definitions and looking
only at the possible sexes of the chosen partner reveals the true nature of the
choice: it is between living with a man and living with a woman. Viewed in this
way, it is immediately clear on what basis the choice is restricted: a woman, but
not a man, may choose to live with a man; a man, but not a woman, may choose
to live with a woman. 94 Thus, the reason Chris Vogel cannot “[choose] to live
with another male” (and obtain benefits for his partner) is “because Mr. Vogel
is a male.”‘ 9
The same kind of analysis can be applied to almost all cases of discrimi-
nation directed against individuals or particular aspects of emotional-sexual
conduct. 96 Thus, the discrimination in University of Saskatchewan was not,
without regard to sex, between gay, lesbian and bisexual lecturers (male or
female) and heterosexual lecturers (male or female). Rather, it was between men
choosing emotional-sexual conduct with men, and women choosing such con-
duct with men (or between women choosing such conduct with women, and
men choosing such conduct with women). And discrimination between private
same-sex sexual activity, public same-sex kissing, or same-sex marriage and
equivalent opposite-sex conduct, allegedly without regard to sex, actually con-
stitutes discrimination on the basis of sex as to who may choose to engage in
sexual activity with a man in private, to kiss a man in public, or to marry a man,
and who may choose the equivalent conduct with a woman.
194See D. Pannick, Sex Discrimination Law (Oxford: Clarendon Press, 1985) at 203: “The dif-
ferentiation is on the ground of sex: women may have relationships with Mr. X and retain their
jobs; if men have such relationships they will be sacked.” See O’Rourke & Wallace v. B.G. Turnkey
Services (Scotland) Ltd. (7 June 1993), Nos. S/457/93, S/458/93 (preliminary ruling by Scottish
Industrial Tribunal under the G.B. Sex Discrimination Act 1975): impossible to lay down a cate-
goric rule that “the dismissal of a woman, because she is carrying on a lesbian relationship, is never
sex discrimination.” See also J. Cusick, “Lesbians’ Hearing Will Set a Legal Precedent” The Inde-
pendent (9 June 1993) 7; “Scottish Lesbians Win Job Fight” Pink Paper (22 October 1993) 3 (cash
settlement prior to hearing).
195See supra note 190 and accompanying text.
196Discrimination solely against bisexual persons, but not against gay or lesbian persons, is
unlikely to occur, but could fall through a “loophole” in the sex discrimination argument, in that
restrictions on being bisexual could be applied equally to men-and women. This theoretical prob-
lem resembles that of the hypothetical bisexual person who hkrasses men and women equally. See
Bundy v. Jackson, 641 F.2d 934 at 942, n. 7 (D.C. Cir. 1981). Another problem, which is the same
whether sex discrimination or sexual orientation discrimination is argued, is presented when a law
applies equally to same-sex and opposite-sex emotional-sexual conduct (e.g., sexual activity). Sec-
tion 159 of the Criminal Code (R.S.C. 1985, c. C-46, as am. by An Act to Amend the Criminal Code
and the Canada Evidence Act, S.C. 1987, c. 24, ss. 3-4) continues to prohibit male-male and male-
female anal intercourse to unmarried persons 14 to 18, who are free to consent to vaginal and oral
intercourse under sections 151-153 of the Code (as am. by R.S.C. 1985 (3d Supp.), c. 19, s. 1).
To challenge section 159 under subsection 15(1) of the Charter, one-would have to argue that the
disproportionate effect on gay and bisexual males 14 to 18 is indirect (adverse effect) discrimina-
tion based on sex or sexual orientation.
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One can attempt to escape this conclusion by using an argument similar to
that of Justice Wilson in R. v. Hess:’ 7 a man’s choice of emotional-sexual con-
duct with a man and a woman’s choice of emotional-sexual conduct with a man
are “biologically different” acts or choices, of which only men and only women
respectively are capable. However, such an argument relies entirely on the dif-
ference in the choosing person’s sex and cannot point to any significant “bio-
logical difference” between the conduct chosen by a man and that chosen by a
woman. For example, there is no more “biological” difference between a man
performing oral intercourse on a man and a woman doing so on a man,’
or
between a woman living with a woman and a man living with a woman, than
between a male lawyer advising a male client and a female lawyer advising a
male client. The only “biological differences” between same-sex emotional-
sexual conduct and opposite-sex emotional-sexual conduct are that the former
never has potential for unassisted procreation (which the latter may have in
some but not all cases), and that the former can never involve penile-vaginal
intercourse (which the latter may involve).
However, these differences are virtually never the basis of legislative and
other distinctions. A public employer might refuse to hire “men who choose
emotional-sexual conduct with men” (but hire women who do so), or refuse to
hire “women who choose emotional-sexual conduct with women” (but hire men
who do so). But a public employer would not refuse to hire “persons who
engage in sexual activity that does not have procreative potential or does not
involve penile-vaginal intercourse” or “persons who are unable to procreate
with their partners without assistance”. Such policies would arguably not dis-
criminate on the basis of sex, in that the choice (e.g., of sexual activity with a
person of a given sex that has procreative potential) is one of which only per-
sons of the opposite sex are biologically capable. But such policies would
exclude many heterosexual persons and would therefore not be adopted.’99
Neither race discrimination nor other forms of sex discrimination could be
hidden by incorporating the choosing person’s race or sex into the definition of
the kinds of conduct (or opportunity) at issue. A boy of African origin, excluded
from a school for children of European origin, could not be told that his choice
of a school reserved for a particular race was the reason for his exclusion rather
than his own race (attending a “same-race” school being open to all, without
regard to race, and attending a “mixed-race” school being prohibited to all,
without regard to race).” Nor could a refusal to permit a woman of East Asian
origin to marry a man of European origin be explained as resulting from her
choice of a spouse of a particular race rather than from her own race (“same-
’97Supra note 152.
198See Note, “Developments in the Law – Sexual Orientation and the Law” (1989) 102 Harv.
L. Rev. 1508 at 1527, n. 57 [hereinafter “Developments”]: no “biological differences” because
“[tihe physical acts themselves – anal and oral sex – are the same whether between a man and a
woman or two persons of the same sex; the difference is the cultural significance attached to the
gender of the participants.”
have any procreative potential.
199Most opposite-sex sexual activity involves the use of contraception and is not intended to
2See Brown v. Board of Education, 347 U.S. 483 (1954).
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CHRONIQUES DE JURISPRUDENCE
race” marriage being open to all, without regard to race, and “mixed-race” mar-
riage being prohibited to all, without regard to race).2″‘ Similarly, a girl barred
from a boys’ ice hockey league would not have her claim of sex discrimination
denied on the ground that her exclusion was based on her choice of the league
of the other sex rather than on her own sex (“same-sex” ice hockey being open
to all, without regard to sex, and “mixed-sex” hockey being prohibited to all,
without regard to sex).2 2
2.
The Illusion of Equal Treatment
Once the sex-based distinctions that underlie virtually all sexual orientation
discrimination have been exposed, the next step is to challenge the argument
that these distinctions do not constitute sex discrimination and do not need to
be justified because they are made “symmetrically”, in the sense that the choices
of both men and women are restricted. Thus, even though we have established
that Chris Vogel is treated differently “because [he] is a male,” we must refute
the claim that “[b]oth males and females are treated the same under the Dental
Services Plan.”20 3 Clearly, this claim is false if it means that the Plan permits
each individual man and woman the same choices. As was demonstrated above,
these choices are plainly not the same (i.e., they are unequal): a man can live
with a woman, a.woman cannot; a woman can live with a man, a man cannot.
This is “mirror-image symmetry”, in that the treatment on one side is the reverse
of that on the other, and therefore different. It is not “symmetry” in the sense
in which I use it, that is, treatment is the same on both sides. The claim that the
treatment is “the same” can only be defended if it is interpreted as a claim that
the treatment is “different but equivalent”, in the sense that all individuals of
both sexes are denied one option and no one is permitted to choose a person of
his or her own sex.
The short answer to this claim is that it attempts to justify one case of dis-
crimination by invoking the existence of another related case (i.e., the discrimi-
nation against men in Vogel I is justified by a related, but different, discrimina-
McLaughlin v. Florida, 379 U.S. 184 (1964) (mixed-race cohabitation).
20 1See Loving v. Virginia, 388 U.S. 1 (1967) [hereinafter Loving] (mixed-race marriage);
202Re Blainey and Ontario Hockey Assoc. (1986), 54 O.R. (2d) 513, 26 D.L.R. (4th) 728 (C.A.).
20 3See supra note 190 and accompanying text. See also Nielsen, supra note 7 at 570: “[T]he den-
tal care plan is … available to both women and men equally”; Guevremont, supra note 7 at 115:
opposite-sex definition of “common law spouse” in collective agreement “applies equally to the
corporation’s male and female employees”; DeSantis v. Pacific Telephone & Telegraph Co., 608
F.2d 327 at 331 (9th Cir. 1979) [hereinafter DeSantis]: “[W]hether dealing with men or women the
employer is using the same criterion: it will not hire or promote a person who prefers sexual part-
ners of the same sex”; State v. Walsh, 713 S.W.2d 508 at 510 (Mo. 1986): rejecting a sex discrim-
ination challenge to a law prohibiting same-sex sexual activity, because of “equal” application to
men and women; Phillips v. Wisconsin Personnel Commission, 482 N.W.2d 121 at 127-28 (Wis.
Ct. App. 1992): woman denied health insurance for her female partner treated the same as “sim-
ilarly situated males”, i.e., those with male partners; X & Y v. U.K. (No. 9369/81) (1983), 32 Eur.
Comm. H.R. D.R. 220, 5 E.H.R.R. 601 at 602: no evidence of sex discrimination against male-
male couple; “the only comparable group being that of lesbians, but a stable lesbian couple would
… have been treated in the same way …” Compare Valdes v. Lumbermen’s Mutual Casually Co.,
507 F Supp. 10 (S.D. Fla. 1980): sex discrimination argued where gay men preferred over lesbian
women.
McGILL LAW JOURNAL
[Vol. 39
tion against women).2″ This is something that can only be done under section
1 of the Charter. A second, allegedly “offsetting” sex-based distinction simply
cannot negate the sex-based distinction that was initially challenged nor cause
it to cease to be a-primafacie violation of subsection 15(1). Some pairs of sex-
based distinctions would surely survive section 1 review (e.g., separate toilets
for men and women). Other pairs (e.g., a law that only men could be doctors
and only women could be nurses) would not. 5
If there were a principle that “mirror-image symmetry” precludes a finding
of a prima facie violation of subsection 15(1), it could be stated as follows: a
first distinction based on an enumerated or analogous ground that excludes
group A, but not group B, from opportunity C, is not discriminatory if a second
distinction, based on the same ground as the first distinction, excludes group B,
but not group A, from opportunity D, in a way that could be said to correspond
to, offset or compensate for the first distinction. Such a principle would insulate
from section 1 review all forms of segregation or “separate but equal” (or “dif-
ferent but equivalent”) treatment, whether they are based on sex, race or another
enumerated or analogous ground.
The “discriminatory impact” requirement in Andrews, as interpreted in
subsequent cases, makes it more difficult to dismiss such an argument than if
a distinction based on an enumerated or analogous ground were automatically
a primafacie violation of subsection 15(1). Assuming that substantially equiva-
lent opportunities are in fact provided separately to each group (e.g., in separate
locations), one may have to show that the justification for the separation is
based on some prejudice or stereotype, or that the separation actually inflicts
some kind of hann on one of the groups, if only by stigmatizing its members
as inferior. In the case of sexual orientation, one could argue that the different
options for each sex (which combine to make integration of the sexes, and
opposite-sex emotional-sexual conduct, compulsory) harm women by stigma-
tizing them as inferior (i.e., they are incomplete without a man, and any man
who seeks a relationship with another man degrades himself by “acting like a
woman”), or constitute the imposition of traditional sex roles and the prejudices
or stereotypes inherent in those roles.2′ 6
24See Pannick, supra note 194 at 204:
It is no defence to a charge of sex discrimination in one’s treatment of men that one
has discriminated against women in another respect…. [E]mployers [cannot] … impose
detriment X on men, and … justify it by the fact that they impose detriment Y on
women, and [do so] by reference to what they believe to be relevant differences
between the sexes.
205See Loving, supra note 201 at 7-12 (holding that a prohibition of mixed-race marriages is race
discrimination in spite of the “mirror-image symmetry” in its application to all races); Barnes v.
Costle, 561 F.2d 983 at 990, n. 55 (D.C. Cir. 1977) (sexual harassment of a woman by a man was
sex discrimination even though “a similar condition could be imposed on a male subordinate by
a … female … “).
20See Hughes, supra note 186 at 49-73; Leopold & King, supra note 186 at 163-65; “Devel-
opments”, supra note 198 at 1526-28, 1570, 1578-81; M. Fajer, “Can Two Real Men Eat Quiche
Together? Storytelling, Gender-Role Stereotypes, and Legal Protection for Lesbians and Gay Men”
(1992) 46 U. Miami L. Rev. 511 at 617-50; A. Koppelman, “The Miscegenation Analogy: Sodomy
Laws as Sex Discrimination” (1988) 98 Yale L.J. 145 at 158-60; B. Capers, “Sex(ual Orientation)
1994]
CASE COMMENTS
If one succeeds in establishing that the different treatment is harmful; it
does not necessaril5, follow under the “discriminatory impact” requirement that
the prohibition of discrimination is symmetrical (i.e., the same on both sides).
A number of writers have argued that subsection 15(1) should be interpreted as
protecting only members of “disadvantaged groups”. 0 7 This would mean that
the prima facie prohibition of sex discrimination in subsection 15(1) protects
only women (a “disadvantaged group”) and not men (an “advantaged group”),
and therefore that the only kind of sexual orientation discrimination that would
constitute sex discrimination would be discrimination against lesbian and bisex-
ual women and emotional-sexual conduct (including couple relationships)
between women. One can avoid this conclusion by arguing that discrimination
against gay and bisexual men and emotional-sexual conduct (including couple
relationships) between men harms women in the ways referred to above.” 8
However, no such argument should be necessary, because I would argue that
both the text of subsection 15(1) (which refers to “every individual”, not “every
member of a disadvantaged group”, and to “discrimination … based on sex”, not
“discrimination against women”), and the text of section 28 (“the rights referred
to in [this Charter] are guaranteed equally to male and female persons”),2t
make it impossible to read men out of “sex” in subsection 15(1).
3.
Form vs. Substance?
If the sex-based distinctions inherent in virtually all sexual orientation dis-
crimination are sufficient to trigger prima facie violations of subsection 15(1),
then any justifications that might be asserted for restricting same-sex and not
opposite-sex emotional-sexual conduct (for example, same-sex sexual activity
is “immoral”, “unnatural” or “offensive”, or lacks procreative potential or
potential for penile-vaginal intercourse; same-sex couple relationships are
and Title VII” (1991) 91 Colum. L. Rev. 1158 at 1163-67; Note, “Custody Denials to Parents in
Same-Sex Relationships: An Equal Protection Analysis” (1989) 102 Har’. L. Rev. 617 at 627-30;
E.R. Arriola, “Sexual Identity and the Constitution: Homosexual Persons as a Discrete and Insular
Minority” (1988) 10 Women’s Rts. L. Rep. 143 at 164; S. Law, “Homosexuality and the Social
Meaning of Gender” [1988] Wis. L. Rev. 187 at 196; K. Karst, “The Freedom of Intimate Asso-
ciation” (1980) 89 Yale L.J. 624 at 683-84; B.A. Babcock et al., Sex Discrimination and the Law:
Cases and Remedies (Boston: Little, Brown, 1975) at 179-80.
207See e.g. W. Black & L. Smith, Case Comment on Andrews v. Law Society of British Columbia
(1989) 68 Can. Bar Rev. 591 at 607-608; A. Petter, “Legitimizing Sexual Inequality: Three Early
Charter Cases” (1989) 34 McGill L.J. 358 at 362; C. Sheppard, “Recognition of the Disadvan-
taging of Women: The Promise of Andrews v. Law Society of British Columbia” (1989) 35 McGill
L.J. 206 at 222-25; D. Proulx, “L’objet des droits constitutionnels a l’6galit6” (1988) 29 C. de D.
567 at 589-93. See also. Turpin, supra note 153 at 1330-33. Compare Hess, supra note 152 at
943-44 (not essential for subsection 15(1) protection that men be “a ‘discrete and insular minority’
disadvantaged independently of the legislation under consideration”).
20 See supra note 206. One could also argue that gay and bisexual men, as opposed to hetero-
sexual men, are members of a “disadvantaged group” and are therefore entitled to benefit from the
prima facie prohibition of sex discrimination in subsection 15(1).
2gSee Hess, sitpra note 152 at 932-33, 943-44 (section 28 protects men as well as women); W.
Black & I. Grant, “Equality and Biological Differences” (1990) 79 C.R. (3d) 372 at 380: “The
complete exclusion of men from s. 15 would be difficult to reconcile with the language of s. 28.”
Compare Brodksy & Day, supra note 189 at 37, 62, 82 (interpreting section 28 as protecting men
is “cruel” and “perverse”).
REVUE DE DROIT DE McGILL
[Vol. 39
“inherently unstable”, are not “financially interdependent” or require assistance
with procreation) could only be raised under section 1. Thus, the “formal” sim-
ilarity of same-sex and opposite-sex emotional-sexual conduct (but for the sex
of one of the persons involved) would permit a gay, lesbian or bisexual plaintiff
to move from subsection 15(1) to section 1. At this stage, in rebutting any
asserted justifications, the plaintiff could emphasize that the similarity is not just
a matter of “form” but of “substance”; that the feelings arising from same-sex
conduct are as intense as those arising from opposite-sex conduct; and that
being in love, making love, strolling hand in hand in a park, and setting up a
home with a partner have the same importance and value regardless of the sexes
of the persons involved. This “substantive” similarity should help counter any
asserted section 1 justifications.”‘
Assuming that crude, sex-based distinctions could not be used to discrimi-
nate between same-sex and opposite-sex couples, other neutral criteria (e.g.,
a monogamous sexual relationship, living together, owning property joint-
ly, merging finances) might exclude a disproportionate number of same-sex
couples from a particular benefit in spite of their long-term emotional commit-
ment. This would raise issues under subsection 15(1) of indirect (or adverse
effect) discrimination based on sex (or sexual orientation), accommodation of
difference, and the inadequacy of “formal” equality where same-sex couples are
in fact different from opposite-sex couples. As Douglas Sanders has pointed out,
in discussing the use of “‘we are the same’ data” by same-sex couples, “[t]he
idea of good homosexuals and bad homosexuals, judged by the degree to which
their lives parallel ideal heterosexual models, is rejected by many lesbians and
gays.” ” Thus, the Board of Inquiry in Leshner hastened to add:
People organize their intimate relationships differently depending on a variety of
factors … This is … true for heterosexuals as it is for homosexuals … [I]t [is not]
necessary for same-sex relationships to mirror the idealized model perceived with
respect to a heterosexual conjugal relationship. An administrative need for iden-
tification should be met by neutral, objective criteria rather than the prospect of
detailed personal inquiries, which we do not believe are the business of employ-
ers.
2 12
C. Other Not So Obvious Kinds of Sex Discrimination: Sexual Harassment
and Pregnancy
Because sexual orientation involves a choice (of emotional-sexual con-
duct), because the choice is restricted (on the basis of sex) on what appears to
be a “symmetrical” basis, and because the restrictions do not affect most women
or men (who are heterosexual), it is a less obvious example of sex discrimina-
tion. Similarly, because sexual harassment and pregnancy discrimination may
not affect all women, some courts have been reluctant (for this and other rea-
210Courts and tribunals have tended not to question the substantial similarity between a long-
tenn same-sex couple relationship and a long-term opposite-sex couple relationship. See e.g. Egan,
supra note 66 at 695-97 (F.C.T.D.); Knodel, supra note 7 at 745; Leshner, supra note 7 at
D/188-D/189; Vogel II, supra note 7 at 95.
211″Drawing Lines on Lesbian and Gay Rights” (7 January 1993) at 19, 28-29 [unpublished].
212Supra note 7 at D/189. See also supra note 44 and accompanying text.
19941
CHRONIQUES DE JURISPRUDENCE
sons) to treat these phenomena as sex discrimination. The Supreme Court of
Canada has, however, settled this issue (at least with respect to human rights
legislation) by interpreting “sex” in the former Manitoba Human Rights Ac 213
as including sexual harassment, in Janzen v. Platy Enterprises Ltd.,214 and preg-
nanc, discrimination, in Brooks v. Canada Safeway Ltd.15 The Court concluded
in Janzen that it is sufficient for sex to be a factor in the decision to treat an
employee differently, and therefore that not all women or men need be
affected.216 Similarly, in Brooks, the Court held that the fact that not all women
are pregnant at any one time makes no difference.17
Although sanctions against same-sex emotional-sexual attraction or con-
duct will apply to all men and all women, one could argue that they will affect
only those men and women who have such an attraction or engage in such con-
duct. But the fact that only some men or some women are affected is irrelevant.
As the Supreme Court of Canada held in Janzen and Brooks, they will be treated
differently because they are men or because they are women. A refusal to hire
Muslim women (but not Muslim men) or women with small children (but not
men with small children)218 is nonetheless sex discrimination, even though only
a subset of women is affected. The same is true when an employer refuses to
hire or provide benefits to women with female partners (but not men with
female partners), or men with male partners (but not women with male part-
ners). Thus, treating sexual orientation discrimination as sex discrimination
should not be conceptually more difficult than treating sexual harassment2 9 and
pregnancy discrimination as sex discrimination.220
D. The Drafters’ “Original Intent” as to What Sex Discrimination Is
Even if a plaintiff succeeds in convincing a court that sexual orientation
discrimination is “literally ‘ 22 sex discrimination because it involves sex distinc-
213S.M. 1974, c. 65.
214[1989] 1 S.C.R. 1252, 59 D.L.R. (4th) 352 [hereinafter Janzen cited to S.C.R.]. Dickson C.J.
(at 1279) defined sex discrimination as unequal treatment “on the basis of a characteristic related
to gender.” In Knodel (supra note 7 at 742-43), Rowles J. purported to apply this statement and
found that sexual orientation is not such a characteristic.
215[1989] 1 S.C.R. 1219, 59 D.L.R. (4th) 321 [hereinafter Brooks cited to S.C.R.].
216Supra note 214 at 1288-90.
217Supra note 215 at 1247-49.
218See Hickling, supra note 186 at 139-40:
219Harassment of gay, lesbian and bisexual persons in the workplace can also be analyzed as sex
discrimination. See S. Marcosson, “Harassment on the Basis of Sexual Orientation: A Claim of Sex
Discrimination under Title VII” (1992) 81 Georgetown L.J. 1.
2201n Wisconsin, employment discrimination based on sexual orientation is prohibited by a pro-
hibition of employment discrimination based on sex. See Wis. Stat. Ann. 111.321, 111.36(1)
(West 1993). Subsection 111.36(1) states:
Employment discrimination because of sex includes, but is not limited to … (b)
[e]ngaging in sexual harassment … (c) [d]iscriminating against any woman on the basis
of pregnancy, child-birth, maternity leave or related medical conditions … (d) 1. …[dis-
criminating] against an individual … because of the individual’s sexual orientation …
221See Macauley v. Massachusetts Commission Against Discrimination, 397 N.E.2d 670 at 671
(Mass. 1979) [hereinafter Macauley]: “As a matter of literal meaning, discrimination against
homosexuals could be treated as a species of discrimination because of sex. We treat distinctions
McGILL LAW JOURNAL
[Vol. 39
tions that are different for each sex, he or she must confront a final hurdle: Was
the constitutional or statutory prohibition of sex discrimination intended to
apply to cases of sexual orientation discrimination? A number of courts and
human rights tribunals in Canada and the United States have refused to interpret
prohibitions of sex discrimination in human rights legislation as extending to
sexual orientation discrimination, because they assumed that the legislature
could not have intended such a result,222 especially if it had rejected a proposed
amendment that would have added “sexual orientation” expressly. 223
It is questionable whether a narrow interpretation of “sex”, as circum-
scribed by the legislature’s “original intent”, is appropriate in the case of human
rights legislation, especially in Canada where the Supreme Court has held that
such legislation “is of a special nature, not quite constitutional but certainly
more than ordinary,” and is to be given “an interpretation which will advance
its broad purposes.” ‘224 The “original intent” of the Manitoba legislature did not
seem to be a significant factor in determining whether “sexual harassment” and
“pregnancy” were implicitly included in “sex” in Janzen and Brooks.”s If a
court concludes that sexual orientation discrimination is sex discrimination, it
need not ask whether the legislature “intended” an unambiguous prohibition of
sex discrimination to apply to cases where the sex discrimination interferes with
a person’s choice of the direction of his or her emotional-sexual conduct. It
should ask only whether there is any statutory language expressly excluding the
application of such a prohibition to such cases. If not, and if no other statutory
exception (such as a bona fide occupational qualification) can be established,
the conclusion that the legislation has been violated should be inescapable.
An “original intent” argument is even weaker in the context of subsection
15(1) of the Charter, which is to be given a “broad and generous” interpreta-
based on pregnancy as distinctions based on sex, calling them ‘sex-linked’ … In a somewhat dif-
ferent sense, homosexuality is also sex-linked.”
222See University of Saskatchewan, supra note 178 at 564-65; Vogel 1, supra note 7 at DI/1658;
DeSantis, supra note 203 at 329-30: “Congress has not shown any intent other than to restrict the
term ‘sex’ to its traditional meaning”; Gay Law Students Association v. Pacific Telephone & Tele-
graph Co., 595 P.2d 592 at 612 (Cal. 1979): “Although, as a semantic argument, the contention
may have some appeal … when viewed in terms of expressed intent, the Legislature … did not con-
template discrimination against homosexuals”; Macauley, ibid.; Singer v. Hara, 522 P.2d 1187 at
1194 (Wash. Ct. App. 1974) [hereinafter Singer] (the majority that voted for Washington’s Equal
Rights Amendment did not intend it to permit same-sex marriages).
2
23See De Santis, ibid. at 329. Compare Mossop, supra note 7 (S.C.C.) (“family status”).
2240’Malley, supra note 22 at 547. But see Mossop, supra note 7 (S.C.C.) and text accompany-
ing notes 22 and 23.
225See Brooks, supra note 215 at 1228, 1250: “One cannot conclude from the fact that some
provinces [including Manitoba] have added pregnancy … that discrimination on the basis of sex
does not encompass pregnancy-based discrimination”; Janzen, supra note 214 at 1261, 1286:
amendments in Manitoba and other jurisdictions expressly prohibiting sexual harassment “were no
doubt intended to make … explicit what had previously been implicit”. Similarly, it is highly doubt-
ful that Parliament “intended” or “foresaw” that the CHRA’s prohibition of sex discrimination
would be applied to the exclusion of women from combat duties in the Armed Forces. Neverthe-
less, this absence of “original intent” did not preclude the perfectly logical conclusion that such
exclusion violates the CHRA. See Gauthier v. Canada (Canadian Armed Forces) (1989), 10
C.H.R.R. D/6014 (C.H.R.C.).
19941
CASE COMMENTS
tion,226 and with respect to which evidence of legislative intent is given “min-
imal weight”.227 As has been demonstrated above, sexual orientation discrimina-
tion clearly falls within the prima facie scope of the prohibition of sex discrim-
ination in subsection 15(1). That prohibition should be given its full primafacie
effect. Any special justification for excluding a particular case of sexual orien-
tation discrimination from the prima facie protection offered by “sex” in subsec-
tion 15(1) must be raised under section 1 of the Charter.
Whatever weight is given to the “original intent” of the drafters of the
Charter (or of human rights legislation), it can be argued that treating sexual
orientation discrimination as sex discrimination is entirely consistent with that
intent. This is true if the “original intent” or purpose behind a prohibition of sex
discrimination is defined, not with respect to specific applications of the prohi-
bition, but in terms of a general goal of eliminating the enforcement of tradi-
tional sex roles by legislatures or public (or private) employers.228 The obliga-
tion of men to choose emotional-sexual conduct only with women, and the
obligation of women to do so only with men, are perhaps the most fundamental
(and therefore invisible229 and unchallenged) aspects of traditional sex roles. The
legal and social persecution of gay and bisexual men (who violate the traditional
male role, thereby betraying and forfeiting their superior male status by engag-
ing in conduct that is only permitted to women)23 and lesbian and bisexual
women (who violate their traditional female role by seeking to live independ-
ently of men) is an integral aspect of enforcing traditional sex roles (men in the
workplace and women in the home, joined exclusively by traditional opposite-
sex marriages).” 1 As conservative writer William Gairdner argues:
[H]omosexuality … thrives when male/female role distinctions are discouraged.
Cultures that want to guard against the threat of homosexuality must therefore
226justice McIntyre said in Andrews, supra note 69 at 175:
Both the enumerated grounds … and other possible grounds of discrimination recog-
nised under s. 15(1) must be interpreted in a broad and generous manner, reflecting the
fact that they are constitutional provisions not easily repealed or amended but intended
to provide a “continuing framework for the legitimate exercise of governmental power”
and, at the same time, for “the unremitting protection” of equality rights …
227See Reference Re Section 94(2) of the Motor Vehicle Act, R.S.B.C. 1979, [1985] 2 S.C.R. 486
at 507-509, 24 D.L.R. (4th) 536.
22SFor a discussion of how “original intent” can be defined more broadly, see R. Dworkin, “The
Bork Nomination” The New York Review of Books (13 August 1987) 3. See also’Pannick, supra
note 194 at 204: the G.B. Sex Discrimination Act 1975 “was introduced precisely to prevent reli-
ance on real or perceived biological or cultural differences between the sexes, except where Par-
liament expressly provided an exception to the anti-discrimination principle.”
229See supra note 189 and accompanying text.
23See e.g. J. Boswell, Christianity, Social Tolerance and Homosexuality: Gay People in Western
Europe from the Beginning of the Christian Era to the Fourteenth Century (Chicago: University
of Chicago Press, 1980) at 74-75 (discussing loss of status of adult male citizens of Rome if they
permitted themselves to be penetrated by another man’s penis, which only politically powerless
women, adolescent males and slaves were supposed to do).
23’See supra note 206 and accompanying text. Compare W. Gairdner, The Trouble with Canada
(Toronto: Stoddart, 1990) at 73, 82-83, 209-10, 273-84 (suggesting that traditional sex roles, that
assign women to the home and insist on traditional opposite-sex marriage as the only option, are
essential to the success of a capitalist economy); T. Honor6, Sex Law in England (London: Duck-
worth, 1978) at 103-105: “Homosexual men are less likely to marry and support wives,” which
“tends to undermine the economic position of women
REVUE DE DROIT DE McGILL
(Vol. 39
drive a cultural’wedge down hard between maleness and femaleness, for it is no
simple coincidence that homosexuality is flourishing in a time of feminism. They
go together like the two sides of a coin. The attempt of the state to neutralize male
and female differences is manifest in its effort to “normalize” homosexuality, mar-
keting it to us in its agencies and schools as a “value-free” matter of sexual “ori-
entation”.
232
Of such writers, Kenneth Karst has observed:
It is not just coincidence that [those] most disturbed about the liberalization of
society’s response to same-sex orientation are also the most concerned to see that
women return to “the family” … to domesticity.233
E. Sex Discrimination against Same-Sex Couples
A sex discrimination argument is well suited to cases of discrimination
against same-sex couples. One need only ask whether, if the plaintiff were a per-
son of the opposite sex, his or her partner would qualify for the benefit in ques-
tion. In Vogel I, Karen Andrews, Mossop, Veysey, Knodel, Egan, Vogel H and
Leshner?4 the answer was yes because, in each case, the benefit was wade avail-
able to unmarried opposite-sex couples. Courts have failed to recognise this
because they have focused solely on the sex of the (chosen) partner, aw’d not on
the sex of the plaintiff (the choosing partner).?3 In Mossop, the Tribunal noted
that Brian Mossop’s partner, Ken Popert, would have qualified as a “common-
law spouse” “but for [his] gender” or “except for [his] sex.” 6 Similarly, in
Egan, Martin J. said that “had [John] Nesbit [the partner] been a woman cohab-
iting with [James] Egan [the plaintiff] …. [Nesbit] would have been eligible for
the spouse’s allowance.” What courts need to do is to shift their focus from
the sex of the (chosen) partner, which gives the relationship its sexual orienta-
tion, to the sex of the plaintiff (the choosing partner). If Martin J. had merely
reversed the names of Nesbit and Egan (i.e., “had Egan [the plaintiff] been a
woman cohabiting with Nesbit [the partner] … [Nesbit] would have been eligi-
ble for the spouse’s allowance”), he would have stated a primafacie case of sex
discrimination under subsection 15(1).
A sex discrimination approach can also be applied to same-sex marriage. 8
In Layland, if Todd Layland were a woman, he would have been permitted to
marry Pierre Beaulne (and vice versa). Until Baehr v. Lewin, Canadian and
2321bid. at 281.
233″The Pursuit of Manhood and the Desegregation of the Armed Forces” (1991) 38 U.C.L.A.
L. Rev. 499 at 509.
r24Supra note 7.
23-5Although the partner is often a co-plaintiff (as was John Nesbit in Egan) and also suffers sex
discrimination, it simplifies the above analysis to treat the party who has the relationship with the
defendant government (e.g., the pensioner, employee or’prisoner) as the plaintiff, and the other
party (who has no such relationship) as the partner.
236Supra note 14 at D/6097-D/6099 (C.H.R.C.).
237Supra note 66 at 695 (F.C.T.D.).
23See e.g. W. Eskridge, “A History of Same-Sex Marriage” (1993) 79 Va. L. Rev. 1419 at
1504-10; J. Trosino, “American Wedding: Same-Sex Marriage and the Miscegenation Analogy”
(1993) 73 Boston U.L. Rev. 93; M. Strasser, “Family, Definitions and the Constitution: On the
Antimiscegenation Analogy” (1991) 25 Suffollk U.L. Rev. 981; Note, “The Legality of Homosex-
ual Marriage” (1973) 82 Yale L.J. 573.
19941
CHRONIQUES DE JURISPRUDENCE
United States courts that had considered the issue had all concluded that mar-
riage is “by definition” opposite-sex. 9 They did so even when the plaintiff
relied on Loving v. Virginia,”24 in which the United States Supreme Court struck
down laws prohibiting mixed-race marriage as racially discriminatory, in spite
of the “mirror-image symmetry” of the treatment of races.241 In Singer, a Wash-
ington Court of Appeals considered whether the “definition of marriage … in
and of itself … constitutes a violation of [the Washington Equal Rights Amend-
ment],” prohibiting discrimination “on account of sex”. It held that the Amend-
ment did not apply to distinctions “founded upon the unique physical character-
istics of the sexes,” and that “the refusal of the state to authorize same-sex
marriage results from … impossibility of reproduction rather than… discrimina-
tion ‘on account of sex’.” The fact that opposite-sex couples are permitted to
marry even when one or both partners are infertile or when they do not want to
have children was dismissed as an “exceptional situation”,24 as it was by the
majority in Layland. But, as mentioned above,243 these facts cannot be ignored
and clearly demonstrate that the distinction is based on sex and not on “impos-
sibility of reproduction” (meaning inability to have children with genetic input
from both partners).
In Baehr v. Lewin, the Supreme Court of Hawaii became possibly the first
court in the world24 to accept the argument that sexual orientation discrimina-
239See Layland, supra note 7; Re North and Matheson, supra note 5; Singer, supra note 222 at
1191-92; Jones v. Hallahan, 501 S.W.2d 588 (Ky. Ct. App. 1973); Baker v. Nelson, 191 N.W.2d
185 at 186 (Minn. 1971) [hereinafter Baker].
240Supra note 201.
24 1Singer, supra note 222; Baker, supra note 239 at 187: “[T]here is a clear distinction between
a marital distinction based merely upon race and one based upon the fundamental difference in
sex … ”
242See Singer, ibid. at 1193-95.
243See supra notes 136-38 and accompanying text.
244In Toonen, supra note 124, para. 8.7, the U.N. Human Rights Committee said obiter that
“‘sex’ in articles 2 … and 26 [of the International Covenant] is to be taken as including sexual
orientation.” In Engel v. Worthington, 23 Cal. Rptr. 2d 329 (Ct. App. 1993), a California Court of
Appeal held that a publisher’s refusal to include a picture of a male-male couple in a high school
reunion memory book was sex discrimination contrary to s. 51 of the California Civil Code.
The highest courts of Germany and the Netherlands have refused to strike down the exclusion
of same-sex couples from marriage. See Herr S & Herr W, No. 1 BvR 640/93, German Federal
Constitutional Court (Bundesverfassungsgericht) (4 October 1993), [1993] Neue Juristische
Wochenschrift 3058; Netherlands Supreme Court (Hoge Raad der Nederlanden) (19 October
1990), RvdW 1990, nr. 176, [1992] Nederlandse Jurisprudentie, No. 129. In both decisions, the
word “marriage” (in Article 6(1) of the German Basic Law and Article 12 of the European Con-
vention) was given a traditional interpretation as meaning “opposite-sex marriage”, and a sex dis-
crimination argument does not seem to have been made. Both decisions cited the European Court
of Human Rights’ interpretation of “marriage” in Article 12 of the European Convention as refer-
ring “to the traditional marriage between persons of opposite biological sex,” in a case where a
transsexual man was seeking the right to marry (Rees v. United Kingdom (1986), Eur. Ct. H.R. Ser.
A, No. 106, paras. 49-50, 9 E.H.R.R. 56). The European Court has not yet heard a case involving
same-sex marriage. The French Cour de cassation has denied claims of same-sex couples to the
same benefits as unmarried opposite-sex couples. See Cass. soc., 11 July 1989, Bull. civ.
1989.V.311, No. 514; Cass. soc., 11 July 1989, Bull. civ. 1989.V.312, No. 515. See generally K.
Waaldijk, “The Legal Situation in the Member States” in K. Waaldijk & A. Clapham, eds., Homo-
sexuality: A European Community Issue (Dordrecht, Neth: Martinus Nijhoff, 1993) 71 at 91-101.
McGILL LAW JOURNAL
[Vol. 39
tion is sex discrimination, and to hold that exclusion of same-sex couples from
marriage is at least prima facie sex discrimination that must be justified.245 It
rejected the “liberty” or “privacy” argument of the plaintiffs, three same-sex cou-
ples, that they had “a fundamental constitutional right to same-sex marriage aris-
ing out of the right to privacy or otherwise.”2′ However, the Court accepted their
“equality” or “equal protection” argument, not on the basis that “homosexuals”
are a “suspect class”,247 but on the basis that “sex” is a “suspect category” under
the Hawaii Constitution248 and that the marriage law “denies same-sex couples
access to the marital status and its concomitant rights and benefits … on the basis
of the applicants’ sex.” ‘249 It rejected the dissent’s argument that “all males and
females are treated alike. A male cannot obtain a license to marry another male,
and a female cannot obtain a license to marry another female.””0 In so doing, it
accepted the analogy to Loving v. Virginia” and the United States Supreme
Court’s rejection of “mirror-image symmetry” of the treatment of races as pre-
cluding a finding of race discrimination. The Supreme Court of Hawaii described
as “tautological and circular” and as “tortured and conclusory sophistry” the
arguments that “same sex marriage is an innate impossibility” and that the plain-
tiffs “were denied a marriage license because of the nature of marriage itself.”
Instead it observed that, “as Loving amply demonstrates, constitutional law may
mandate, like it or not, that customs change with an evolving social order.”” 2
Same-sex couples should not book their flights to Hawaii quite yet, as the
Supreme Court of Hawaii did not strike down the “opposite-sex couples only”
marriage law. Rather, it held that the law “is presumed to be unconstitutional …
[unless the State of Hawaii] can show that (a) the statute’s sex-based classifica-
tion is justified by compelling state interests and (b) the statute is narrowly
drawn to avoid unnecessary abridgments of the [plaintiffs’] constitutional
rights.” z 3 It remains to be seen whether the State can discharge this heavy bur-
den, but an argument such as “lack of procreative capacity” should not be
enough. If the Supreme Court of Hawaii ultimately holds that the State has
failed to do so, and the Hawaii Constitution is not amended to overtum the deci-
sion,’
“the State of Hawaii will no longer be permitted to refuse marriage
245The argument was initially accepted by two judges, with one concurring on other grounds,
and two dissenting. A motion for reconsideration, together with a change in the composition of the
Court, seems to have altered the result to three judges accepting the argument, one concurring on
other grounds and one dissenting (supra note 13 at 48, 68, 70, 74-75).
2461bid. at 57.
247″[I]t is irrelevant … whether homosexuals constitute a ‘suspect class’ because it is immaterial
whether the plaintiffs … are homosexuals” (ibid. at 58, n. 17). The Court defined sexual orientation
narrowly as direction of attraction, and neither saw it as including the choice of direction of con-
duct, nor saw particular instances of conduct (e.g., a marriage) as having sexual orientations. “Par-
ties to a same-sex marriage could theoretically be either homosexuals or heterosexuals” (ibid. at
51, n. 11).
24Slbid. at 67.
2491bid. at 60.
250 bid. at 67-68, 71.
25See Koppelman, supra note 206.
252Supra note 13 at 63.
253Ibid. at 67.
254Attempts to have the Hawaii legislature propose a referendum on a constitutional amendment
19941
CASE COMMENTS
licenses to couples merely on the basis that they are of the same sex.” 5 Busi-
ness could boom both for travel agents and experts on inter-jurisdictional rec-
ognition of marriages.
Conclusion
Attempts by same-sex couples to achieve equality with opposite-sex
couples raise a number of issues for legislatures and courts. One issue is the
question of whether the equality, if granted, should take the form of “equalizing
up” or “equalizing down”: Should benefits (including the right to marry) be
extended to same-sex couples, or should they be taken away from opposite-sex
couples, thereby eliminating the ways in which couple relationships are pre-
ferred (justifiably or not) over non-couple relationships? 6 For legislatures, the
answer will depend on the popularity of the benefit. For courts, the initial
answer should be clear, in that the principles set out in Schachter v. Canada
(Employment and Immigration Commission) 7 will almost always favour exten-
sion to the small group of persons excluded by the challenged distinction (same-
sex couples). A challenge to another distinction excluding a different group of
persons could produce a different result.
A second issue is how to define “couple” or “spousal” relationships. What
distinguishes such relationships from “non-couple” or “non-spousal” relation-
ships? I would suggest that shared housing or finances and commitment or car-
ing will not be enough in some cases, and that the main distinguishing feature
will be an actual, former or potential sexual relationship. But it is difficult for
courts to treat this as the deciding factor, both because it is not a requirement
of a valid marriage and because courts are understandably reluctant to enquire
into the sexual activities of couples. What must be noted about both these issues
(extension or abolition of benefits and definition of “couple”) is that they can
and must be kept separate from the issue of discrimination against same-sex
prohibiting same-sex marriage, under Article XVII, section 3 of the Hawaii Constitution, have so
far been unsuccessful. See P. Freiberg, “In Hawaii, Fight for Marriage Heats Up” (25 March 1994)
The Washington [D.C.] Blade 1.
255Supra note 13 at 57.
256There is a debate within the gay, lesbian and bisexual community as to whether same-sex
couples should be seeking the right to marry or an end to the ways in which married couple re-
lationships are preferred over other relationships. See e.g. Herman, supra note 140 at 794-804; N.
Duclos, “Some Complicating Thoughts on Same-Sex Marriage” (1991) 1 L. & Sexuality 31; N.
Polikoff, “We Will Get What We Ask For: Why Legalizing Gay and Lesbian Marriage Will Not
‘Dismantle the Legal Structure of Gender in Every Marriage”‘ (1993) 79 Va. L. Rev. 1535. 1 would
argue that, in the short term, the heterosexual majority is unlikely to abolish civil marriage or
remove all of the benefits it may bring. As long as it exists, and even if the only additional benefit
is a symbolic one, same-sex couples will not have the same range of options as opposite-sex cou-
ples and will not be “equal” to them, unless they are permitted to marry. It is true that although
burdens tied to the benefits of marriage could be avoided by not marrying, certain “involuntary”
burdens would accompany equal treatment of unmarried same-sex and opposite-sex couples (e.g.,
calculation of welfare benefits based on combined incomes). See Duclos, ibid. at 52-55. Perhaps
“involuntary” burdens must be accepted as part of the “package” that equality with opposite-sex
couples represents, and their elimination sought by other means for all unmarried couples, or all
couples.
257[1992] 2 S.C.R. 679, 93 D.L.R. (4th) 1.
REVUE DE DROIT DE McGILL
[Vol. 39
couples. The basic equality claim of same-sex couples is that, whatever benefits
(including a right to marry) the State decides to allocate to couples, and how-
ever it decides to define “couples”, “spouses” or “families”, the allocation or
definition should not discriminate against them, either directly or indirectly,
whether on the basis of sexual orientation or sex.
In Egan, the Supreme Court of Canada is presented with the opportunity
of deciding that sexual orientation is an analogous ground under subsection
15(1) of the Charter, and that discrimination against same-sex couples is dis-
crimination on the basis of sexual orientation or sex and must be justified under
section 1. If it were to adopt such a principle (and find no section 1 justifica-
tions), it would establish that same-sex couples are generally entitled to the
same benefits as unmarried opposite-sex couples, where such benefits are pro-
vided for by statute, or are otherwise provided by “government”. But its reason-
ing in interpreting an analogous ground (sexual orientation) or an enumerated
ground (sex) in subsection 15(1) as applying to discrimination against same-sex
couples in the provision of benefits, would probably apply to human rights acts
that expressly prohibit discrimination based on sexual orientation or sex. It
would thereby lend support to the reasoning in Leshner that a prohibition of sex-
ual orientation discrimination in a human rights act protects same-sex couples,
and that subsection 15(1) of the Charter precludes attempts to limit such a pro-
hibition to discrimination against gay, lesbian and bisexual individuals, by using
opposite-sex definitions of “spouse” or “marital status” to exclude same-sex
couples from protection.” s If the Tribunal’s reasoning is ultimately accepted by
appellate courts,29 it could mean that the recent attempt to insert such a limit
into the Nova Scotia Human Rights Act could be struck down,2 6 and that all
Canadian employers (public and private sector) bound by such statutory prohi-
bitions would have to extend employment benefits provided to unmarried
opposite-sex partners to the same-sex partners of their employees.26’
rSsLeshner, supra note 7 at D/197-D/201.
9In Clinton (supra note 7), an Ontario Human Rights Commission board of inquiry held, with-
25
out relying on subsection 15(l) of the Charter, that the denial of benefits to Elizabeth Clinton’s
partner, Laurie Anne Mercer, constituted sexual orientation discrimination, in spite of the opposite-
sex definitions of “marital status” (and “spouse”) in the Ontario Human Rights Code (supra note
47, s. 10(1)). The Ontario Divisional Court relied on these definitions (and did not permit a Charter
argument) in reversing the Board of Inquiry’s decision on 3 May 1994. See “Bill to Be Introduced,
Free Vote Confirmed” XTRA [Toronto] (13 May 1994) 13. Compare Parkwood, supra note 7; Car-
leton, supra note 7.
26See R.S.N.S. 1989, c. 214, as am. by An Act to Amend Chapter 214 of the Revised Statutes,
1989, The Human Rights Act, S.N.S. 1991, c. 12, s. 3(i). See also Bill C-108, An Act to Amend
the Canadian Human Rights Act and Other Acts in Consequence Thereof, 3d Sess., 34th ParI.,
1992, s. 10. Compare the Quebec Charter of Human Rights and Freedoms, supra note 117, s. 137
(prohibitions of sexual orientation and sex discrimination do not apply to pension and other social
benefit plans).
261This could mean all Canadian employers, if the Supreme Court approves the reasoning in
Haig (supra note 59) or accepts a sex discrimination argument. In Clinton (supra note 7 at D/384),
the board of inquiry ordered that “no employee benefit plan be offered in … Ontario which limits
common-law conjugal benefits to persons of the opposite sex.” But see supra note 259. On 9 June
1994, the Ontario legislature voted (68-59) against-a bill (Bill 167, the Equality Rights Statute Law,
Amendment Act) that would have amended 56 statutes that discriminate against same-sex couples
(including the opposite-sex definitions of “spouse” and “marital status” in the Ontario Human
1994]
CHRONIQUES DE JURISPRUDENCE
What about any benefits that. may justifiably be restricted to married
couples, and the right to marry itself? The Supreme Court of Canada may also
have the opportunity in Layland (if there is an appeal from the Ontario Court
of Appeal’s decision) to apply any principle it adopts in Egan to the most fun-
damental and historically entrenched kind of discrimination against same-sex
couples: denying them the right to marry. In its impact on discrimination
against same-sex couples, a decision striking down the exclusion as contrary
to the Charter would be equivalent to Brown v. Board of Education.262 The
heterosexual majority in Canada may be reluctant to see the institution of civil
marriage63 “demeaned” by allowing same-sex couples to sit in the same mar-
riage clerk’s waiting room as opposite-sex couples, 264 or might prefer them to
have their own “separate but equal” registration procedure with a name other
than “marriage”.265 But the Supreme Court of Canada would be declaring that
Rights Code, supra note 47, s. 10(1)), and that would have permitted same-sex couples to adopt
children jointly but not marry (a matter seen as falling within federal jurisdiction). See C. Mclnnes
& J. Rusk, “Gay-Couples Bill Survives [first reading] Vote” The [National] Globe and Mail (20
May 1994) Al; E. Payne, “What’s in the Equality Rights Statute Law Amendment Act” The
Ottawa Citizen (3 June 1994) A4; B. Powell, “Ontario Rejects [on second reading] Same-Sex Bill”
[10 June 1994) Al. In the case of pension plans, an additional obstacle is the opposite-sex defi-
nition of “spouse” in the federal Income Tax Act. See Leshner, supra note 7 at D/196. The Canadian
Union of Public Employees is bringing a Charter action to challenge the definition. See Capital
XTRA [Ottaiva] (19 November 1993) 13.
262See Egan, supra note 7 at 441-43 (F.C.A.); Layland, supra note 7 at 680; Leshner, supra note
7 at D/196.
263Civil marriage must be distinguished from religious marriage, which would probably be pro-
tected by subsection 2(a) of the Charter against any attempt to apply a statutory prohibition of sex-
ual orientation discrimination or sex discrimination.
264See e.g. A. Santin, “Protect Gays, Survey Says, but Don’t Sanction Marriage” Winnipeg Free
Press (6 February 1993) All: Angus Reid poll finds that 56% of Canadians “believe that homo-
sexual couples who wish to marry should not qualify for legal recognition of their union.”
2651n 1989, Denmark established a “separate and not quite equal” procedure that permits two
persons of the same sex to register their partnership but not to adopt children jointly. See Denmark,
Lov om registreret partnerskab (Law on Registered Partnership), Lov 7 June 1989, nr. 372; L.
Nielsen, “Family Rights and the ‘Registered Partnership’ in Denmark” (1990) 4 Int’l J.L. & Fam.
297; M.H. Pedersen, “Denmark: Homosexual Marriages and New Rules Regarding Separation and
Divorce” (1992) 30 J. Fam. L. 289; L. Nielsen, “Denmark: New Rules Regarding Marriage Con-
tracts and Reform Considerations Concerning Children” (1992-93) 31 Univ. Louisville J. Fam. L.
309; D. Henson, “A Comparative Analysis of Same-Sex Partnership Protections: Recommenda-
tions for American Reform” (1993) 7 Int’l J.L. & Fam. 282. In 1993, Norway adopted a similar
procedure but confined it to “two homosexual persons of the same sex.” See Norway, Lov om
registrert partnerskap (Law on Registered Partnership), Lov 30 April 1993, nr. 40, 1. On 7 June
1994, Sweden’s parliament adopted registered partnership legislation that is similar to the Danish
and Norwegian laws. See “Sweden to Let Homosexuals Marry” International Herald Tribune (8
June 1994) 2. On 8 February 1994, the European Parliament called on the Commission of the Euro-
pean Communities to draft a recommendation ending “the barring of lesbians and homosexual cou-
ples from marriage or from an equivalent legal framework” and “any restrictions on the rights of
lesbians and homosexuals to be parents or to adopt or foster children” (EC, Resohtion on Equal
Rights for Homosexuals and Lesbians in the EC, No. A3-0028/94 (8 February 1994), paras. 12-14.
The Ontario Law Reform Commission has recommended that legislation be enacted that would
permit any two unmarried adults to register a “Registered Domestic Partnership” (Report on the
Rights and Responsibilities of Cohabitants under the Family Law Act (Toronto: Ontario Law
Reform Commission, 1993) at 53-55, 70-71). Like the Ontario proposal, procedures for registering
“domestic partnerships” that have been established in a number of U.S. cities are open both to
McGILL LAW JOURNAL
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such exclusion or segregation cannot be permitted in a “free and democratic
society” that believes in equality without discrimination based on sexual orien-
tation or sex.
same-sex couples and to unmarried opposite-sex couples, giving the former, one recognition option
(registration) and the latter, two (registration or marriage). See C. Bowman & B. Comish, “A More
Perfect Union: A Legal and Social Analysis of Domestic Partnership Ordinances” (1992) 92
Colum. L. Rev. 1164.
