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social sciences

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The tragedy of AIDS prompted the coming out of numerous individuals who might otherwise have remained closeted. The pandemic also kept the subject of homosexuality in the news. Both of these developments helped humanize the struggle for equality and contributed to greater tolerance for glbtq people, thus setting the stage for further political and social gains in the 1990s.

Charter of Rights

In 1980 official discussions of a new national Charter of Rights and Freedoms began. The intent was to move Canada from its traditional reliance on "common law," as in Great Britain, to a constitutional structure that incorporated something similar to the United States Bill of Rights. The document was adopted in 1982, but its Section 15, which dealt broadly with equal rights but did not specifically address the issue of sexual orientation, was not implemented until 1985 in order to allow provincial and other governments time to revise existing laws to conform with the new section.

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Many glbtq rights groups across Canada submitted briefs to the parliamentary subcommittee dealing with the equality provisions, outlining how they believed the new section should be interpreted. They found cause for encouragement in the subcommittee's final report, which called for the specific inclusion of sexual orientation as a banned basis for discrimination and established a uniform age of consent.

When Prime Minister Brian Mulroney announced that his government would issue a position on the report in early 1986, glbtq activists formed the Equality Writes Ad Hoc Committee to conduct a letter-writing campaign to press for an interpretation of Section 15 that guaranteed their rights. The effort was successful, and the government made a statement endorsing the view that sexual orientation should be included among the prohibited grounds for discrimination.


Thirty-five members of Equality Writes then founded EGALE (Equality for Gays and Lesbians Everywhere/Egalité pour les gais et les lesbiennes). EGALE, which now describes itself as "a national organization committed to advancing equality and justice for lesbian, gay, bisexual and trans-identified people, and their families, across Canada," has grown to over 3,300 members. Its activities include public education projects, appearances before government committees, and interventions in numerous glbtq rights cases across the country and in the Supreme Court.

The adoption of the Charter was an important requisite step in the quest for equal rights, but it did not itself establish those rights. Legal interventions and pressure on the provincial and national governments were necessary to make the promise of the Charter a reality.

For example, only in 1992, some six years after the government declared that sexual orientation discrimination was illegal under the Charter, did the Canadian armed forces lift restrictions against openly gay and lesbian servicemembers. Similarly, only in 1998 did the Supreme Court of Canada rule that the exclusion of homosexuals from Alberta's Individual Rights Protection Act was a violation of the Charter, in effect establishing a national gay rights law. Other judicial rulings, by both provincial and federal courts, subsequently established adoption rights and inheritance rights for same-sex couples.

Legal recognition of gay and lesbian couples was among the most significant of the goals of EGALE. To that end they participated in Egan v. Canada, a case brought by longtime activist James Egan after John Nesbit, his partner since 1948, applied for and was denied a spousal allowance under the Old Age Security Act. After losing in the lower courts, Egan and Nesbit appealed to the Supreme Court, which, although ruling that Section 15 prohibited discrimination based on sexual orientation, nevertheless dismissed the appeal in 1995 on the ground that the definition of "spouse" in the Old Age Security Act was constitutional. Subsequently, however, other courts have ruled that members of gay and lesbian couples are entitled to survivors' benefits.

Struggle for Same-Sex Marriage

Egan and Nesbit's suit presaged the quest for the next great goal of glbtq Canadians, the passage of laws permitting same-sex marriages. A hopeful sign came in May 1999, when the Supreme Court ruled that same-sex couples were entitled to the same rights and obligations as heterosexual couples, but a month later parliament voted overwhelmingly to retain the definition of marriage as strictly heterosexual.

In 2002, however, Superior Courts in Ontario and Quebec ruled that prohibiting same-sex marriage was a violation of the Charter, and the next year the British Columbia Court of Appeal followed suit. A decision by the Ontario Court of Appeal on June 10, 2003 upheld a lower-court ruling in favor of the rights of same-sex couples and established a new definition of marriage as "the voluntary union for life of two persons to the exclusion of all others." The change went into effect immediately, and the day after the historic ruling, Michael Leshner, a crown prosecutor, and his partner, Michael Stark, became the first gay couple to wed in Canada.

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