Gay Rights Bill Passes
One year ago this week, Chris Phibbs and Chris Higgins, lesbian partners for seven years, hosted a celebration at their Toronto home. "There were flowers, telegrams, balloons," recalls Phibbs. "It was as much fun as a family has ever had." The occasion: one week earlier, Ontario Court Judge David Nevins had made a groundbreaking decision - and ruled that Phibbs could adopt Higgins's three-year-old son, Zak. "It was," recalls Phibbs, "a great feeling." But last week, as she prepared to mark that anniversary, Phibbs was having less celebratory feelings about another chapter in Canadian gay history - the first and second readings of the controversial Bill C-33. Designed to amend the Canadian Human Rights Act, the bill would prohibit discrimination based on sexual orientation in institutions that operate under federal jurisdiction, including the military, banks and telecommunications. Commenting on the decision of Prime Minister Jean Chrétien to allow a free vote on the bill - and on the 53 MPs who voted against it - Phibbs said: "These people seem to think that human rights are like a shopping list, that you can pick and choose who you're not going to discriminate against and too bad for the rest." Added Phibbs: "I'm glad this has put the struggle into the limelight, but when will we ever just get to stop struggling?"
Many gay people across the country were asking that question last week as they watched the firestorm of debate over a bill that in the words of Susan Ursel, a Toronto lawyer and gay rights expert, "should have just been a housekeeping exercise." After all, in 1995, the Supreme Court of Canada ruled that sexual orientation is protected under the Canadian Charter of Rights and Freedoms. And the Canadian Human Rights Commission had announced three years earlier that it would begin accepting complaints of discrimination based on sexual orientation - precisely what the proposed law would codify. What is more, seven provinces (all but Alberta, Prince Edward Island and Newfoundland) already outlaw discrimination against gays and lesbians in their human rights codes. And court rulings across the country - as well as private corporations - are quietly handing homosexual men and women same-sex employee benefits, bereavement leave and rights to adoption. "Chrétien acts like a hero in introducing this," said Barbara Findlay, co-chair of the lesbian and gay rights section of the B.C. branch of the Canadian Bar Association. "But he's merely committing to paper what is effectively happening on its own."
Still, many gays also expressed relief that Chrétien took a stand at a time when their rights are still a matter of much debate. Indeed, although the Reform party suspended MP David Chatters from caucus last week after he said it was acceptable to fire openly gay workers, an Alberta court ruled just three months ago that Edmonton's King's College, a private Christian school, could do just that. In ruling on the 1991 dismissal of laboratory instructor Delwin Vriend, the judges explicitly stated that social policy was a matter for elected legislators to decide, not the courts and that the legislature had not included sexual orientation as a prohibited ground of discrimination in the province's human rights code. "We are on a long and tortuous road to full equality," says Svend Robinson, who along with Réal Ménard of the Bloc Québécois is one of only two openly homosexual MPs. "Bill C-33 is a step in the right direction."
In fact, several recent court decisions have forced into law what many opponents of Bill C-33 fear is its logical extension: the recognition not only of the rights of gay individuals, but of their partnerships. In last year's Ontario adoption ruling, for example, the court ordered a fundamental redefinition of the word "spouse" in the province's Child and Family Services Act to include partners of the same sex. The ease with which that was accomplished stood in sharp contrast to the bitter battle that had gripped the province's legislature only one year earlier, when then-premier Bob Rae's NDP government introduced a law to give same-sex couples the rights of those in common-law relationships. Rae failed, even after bowing to pressure to reword the proposed law to explicitly exclude adoption rights.
Gays have been even more successful in gaining victories that affect their bank accounts, winning several important court battles for same-sex employment benefits for their partners. In 1990, Toronto became the first municipality in Canada to extend such rights to its workers. Since then, Ontario, British Columbia, New Brunswick and Nova Scotia have followed suit for their employees. And corporate Canada has been jumping on the bandwagon. Among the leaders: Bell Canada, Northern Telecom, Dow Chemical and several of the big banks. "The general trend is towards more companies going that way," says Stuart Graham, a lawyer with the Toronto human resources consulting firm Hewitt Associates. "Many are moving slowly, waiting to see if employees will press them, but almost everyone is at least looking into it."
The courts have also moved too slowly for some - and occasionally shocked gay rights advocates by blaming the pace of change on social attitudes towards gays. Just last year, James Egan and John Nesbit of Courtenay, B. C., gay partners for 48 years, claimed that the Old Age Security Act unfairly excluded them from federal pension benefits. The Supreme Court ruled that their fundamental rights under the charter were infringed - but that it was a reasonable infringement. The explanation, wrote Justice John Sopinka: "Equating same-sex couples with heterosexual couples ... is still generally regarded as a novel concept."
No matter how limited the scope of Bill C-33, both its opponents and supporters see it as an important step in reversing that status - and pulling the entire notion of gay rights out of the closet and more firmly into the mainstream of national debate. Saying that he fears the new law could lead to subsequent pressure to allow gay marriage, Reform MP Ian McClelland, who last week acknowledged that he has a gay son, put it this way: "If your wife asks why there is a brochure for a new car on the kitchen table, you can tell her it's only a brochure. But the next thing she knows, there's going to be a car in the driveway."
Gay rights advocates balk at the connection - but say that the bill's victory is important to them nonetheless. "The real fear people have is that it will lead to just a bit more recognition and respect for gays," says Cynthia Petersen, a gay rights expert and law professor at the University of Ottawa. "And no matter how many victories we have won in the courts, in the work-place, or in the provinces, that is a path down which many Canadians are still not ready to go." At least not, it seems, without a battle.
Maclean's May 13, 1996