LGBT rights in Canada
Status	Legal since 1969;[1] Equal age of consent since 2019.[2] Conversion therapy illegal under federal law since 2022.[3][4]
Gender identity	Change of name and legal sex available in every province and territory, under different rules, and without sex reassignment surgery
Military	LGBT people were authorized to serve openly in 1992.
Discrimination protections	Sexual orientation beginning provincially in 1977; federally since 1996; gender identity or expression federally since 2017
Family rights
Recognition of relationships	Same-sex marriage legally available throughout Canada in 2005.
Adoption	Same-sex couples allowed to adopt

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Canadian lesbian, gay, bisexual, and transgender (LGBT) rights are some of the most extensive in the world. Same-sex sexual activity was made lawful in Canada on June 27, 1969, when the Criminal Law Amendment Act, 1968–69 (also known as Bill C-150) was brought into force upon royal assent.^[1] In a landmark decision in 1995, Egan v Canada, the Supreme Court of Canada held that sexual orientation is constitutionally protected under the equality clause of the Canadian Charter of Rights and Freedoms.^[5] In 2005, Canada was the fourth country in the world, and the first in the Americas, to legalize same-sex marriage nationwide.^[6] In 2022, Canada was the third country in the world, and the first in North America, to fully ban conversion therapy nationwide for both minors and adults.

Canada was referred to as the most gay-friendly country in the world, when it was ranked first (indicating least dangerous) in Asher & Lyric's LGBTQ+ Danger Index in 2023.^[7] It was also ranked second in the Gay Travel Index chart in 2023,^[8] and fifth in the Equaldex Equality Index in 2023.^[9] The country's largest cities feature their own gay areas and communities, such as Toronto's Church and Wellesley neighbourhood, Montreal's Gay Village commercial district, Vancouver's Davie Village and Ottawa's Bank Street Gay Village.^[10] Every summer, Canada's LGBT community celebrates gay pride in all major cities, with many political figures from the federal, provincial and municipal scenes.

In recent decades, Canada went through some major legal shifts in support of LGBT rights (e.g. decriminalization, anti-discrimination, anti-harassment, gay marriage, homoparentality, blood donations, transgender rights and outlawing of conversion therapies). The 2020 Pew Research showed that 85% of Canada's general population (92% among Canadians aged between 18 and 29) had favoured social acceptance of homosexuality, up from 80% in 2013.^[11][12] Likewise, polls in June 2013 had shown an increase in the Canadian population's point of view, with a vast majority of Canadians giving their blessing to same-sex marriage, which was made available to all throughout Canada in 2005. The polls had also revealed that 70% of Canada's population had agreed that "same-sex couples should have the same rights to adopt children as heterosexual couples do," and that 76% had also agreed that "same-sex couples are just as likely as other parents to successfully raise children".^[13] By 2020, 91.8% of those surveyed in a poll commissioned by the Privy Council Office said they would be "comfortable" if a next-door neighbour was gay, lesbian or bisexual and that 87.6% said they would be "comfortable" if a neighbour was a transgender person.^[14]

History

Transgender people and cross-dressing practices have been recorded and documented in Canada for centuries. Different Indigenous groups have had their own traditions and terms to refer to transgender people, gender variance or sexual identity. These First Nations had perceptions towards gender and sexuality which differed significantly to that of the Western world. Many transgender people in these traditional roles were in positions of reverence, where they acted as caretakers of children who had lost their families, spiritual healers and warriors in battle. The Cree term apêw iskwêwisêhot refers to people who are assigned male at birth but act, dress and behave as female, while the term iskwêw ka napêwayat has the opposite meaning, that being a person assigned female at birth but acts and behaves as male. Similarly, the Kutenai titqattek describes women who take on roles traditionally characterized as masculine, including hunting and warfare. The Blackfoot term aakíí'skassi (meaning "acts like a woman"; also spelt a'yai-kik-ahsi) describes men who dress as women and typically perform chores and activities associated with women, such as basket weaving and pottery making. Many other Indigenous groups recognise similar terms: the Inuit sipiniq (ᓯᐱᓂᖅ), the Assiniboine wįktą, the Tlingit gatxan, and the Tsimshian kanâ'ts. Among the Ojibwe, male-to-female individuals are known as ikwekaazo, which literally translates to "men who chose to function as women", whereas female-to-male individuals are known as ininiikaazo. The European colonialists would describe such individuals as "homosexuals", "a curious compound of man and woman" or "berdache", meaning a catamite or a male prostitute. The term is now considered offensive and outdated. Following colonisation and the spread of Christianity by religious missionaries, many of these traditions began to die out. Transgender individuals were furthermore forced and assimilated into Europe-centric culture, and even among the Indigenous peoples perceptions began to change. In the early 1990s, Indigenous groups sought to reclaim many of their customs and traditions. LGBT Indigenous groups proposed the term "two-spirit" to refer to a traditional and cultural "third gender". In modern times, two-spirit is frequently used by First Nations groups to refer to people who embody these gender traits, and is occasionally used to reference the entire Indigenous LGBT community. As such, the terms LGBT2S or LGBTQ2S are increasingly used, with the 2S denoting two-spirited people; sometimes, this is denoted simply as 2, as in LGBTQ2. Records of homosexuality and same-sex relations also exist, notably among the Mi'kmaq, where the common phrase Geenumu Gessalagee, which translates to "he loves men", is used to refer to such individuals.^[15]

During the British North American era, sexual activity between men was a capital crime. However, there is no surviving record of any executions; political figures were reluctant to enforce the law.^[16] The death penalty was eventually repealed, though a broader law involving gross indecency between men was often enforced in the late 19th century.^[17] During the early to mid 20th-century, the law often portrayed homosexual men as sex offenders, including the court case of Everett George Klippert. He admitted to having sex with multiple men, which resulted in his life imprisonment. Same-sex sexual activity between consenting adults was soon decriminalized in 1969 as a result of legislation introduced in 1967, with then-Justice Minister and Attorney General of Canada Pierre Trudeau who eventually became the 15th Prime Minister of Canada and famously commented, "There's no place for the state in the bedrooms of the nation."^[18]

Up until 1973, homosexuality was considered to be a mental illness. Many treatments were used to cure people of their homosexual orientation, including electroshock therapy, lobotomies, and conversion therapies. In 1973, the American Psychiatric Association decided that homosexuality is not a mental illness. As a result, homosexuality was withdrawn from the Diagnostic Statistical Manual (DSM), which is the diagnostic reference guide used by all health and social services professionals in North America. In 1999, the American Psychological Association acknowledged in its code of ethics that to treat homosexuality as a psychological problem, a sexual deviance or a form of psychopathology is unethical.

Same-sex marriage became legal in Ontario in 2003, and was already legalized in eight of ten provinces and one of three territories when, on July 20, 2005, Canada became the first country outside Europe and the fourth country in the world to legalize same-sex marriage nationwide after the enactment of the federal Civil Marriage Act. Likewise, same-sex adoption was legalized in all provinces and territories under varying rules. Discrimination on the basis of sexual orientation and gender identity or expression in employment, housing and public and private accommodations is now prohibited by all provinces and territories, as well as the federal government. Transgender people are now allowed to change their legal gender in all provinces and territories under varying rules.

Constitutional framework

Legal and equality rights

The Constitution of Canada does not explicitly grant or deny any right to LGBTQ+ people, however the Supreme Court of Canada has held that the open-ended wording of section 15 of the Charter protects LGBTQ+ people from discrimination based on sexual orientation. Subsection 15(1) reads:

15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Section 15(1) was written so as to protect against discrimination generally, with the enumerated grounds of prohibited discrimination, such race and sex, being examples of prohibited grounds, rather than a closed list. In its landmark ruling in 1995 in the case of Egan v. Canada, the Supreme Court of Canada declared that sexual orientation was included within the bounds of section 15, as an analogous ground. Individuals were therefore granted equal protection against discrimination on the basis of that ground. The concepts of sex and physical disability in s. 15 have been interpreted to include transsexuality and HIV/STDs (see discussion below).^[19] As articulated, and reaffirmed in 2008, "the promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration".^[20]

Section 15 applies to all laws and government institutions in Canada, including law enforcement authorities, but the Charter does not grant rights against the private sector. Instead, a complaint against a business would be brought under the applicable federal or provincial human rights statute. For example, a discrimination complaint against a restaurant would generally fall under provincial anti-discrimination legislation and not the Charter. However, the Charter is part of the Constitution and therefore is part of the supreme law of the land. Courts must interpret statutes consistently with the Charter, including human rights laws.^[21] In private litigation, including human rights cases, "courts should, from time to time, re-evaluate the consistency of the common law with evolving societal expectations through the lens of Charter values".^[22] Equality rights under the Charter therefore will provide guidance for the interpretation of equality rights set out in human rights laws.

In its 1998 decision in Vriend v Alberta, the Supreme Court found the failure of the provincial legislature to include sexual orientation as a prohibited ground of discrimination in its human rights law was itself a violation of section 15 Charter rights. As of 2017, all provinces, territories, and the federal government explicitly include sexual orientation and gender identity as prohibited grounds of discrimination in their human rights acts.

Reasonable limits

The entire Charter is also subject to a general limit in section 1 that allows "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The Oakes Test sets out the Supreme Court of Canada's interpretation of this exception. This analysis may consider conflicting Charter rights. For example, the right to equality based on sexual orientation under section 15 may be limited by the freedom of religion under section 2, and vice versa. It may also be limited by the right to denominational (religious) schools under Section 93 of the Constitution.

Enforcement mechanism

In the last decades, the rights of LGBTQ+ Canadians were largely enhanced due to several court decisions decided under Section 15 of the Canadian Charter of Rights and Freedoms (French: Charte canadienne des droits et libertés), which was included in the Constitution of Canada in 1982, and came into force in 1985.

Some of the cases were funded under the Federal Government's Court Challenges Program,^[23] which in 1985 was expanded to fund test cases challenging federal legislation in relation to the equality rights guaranteed by the Charter. There were also funding to challenge provincial laws under a variety of programs, but its availability had differed considerably from province to province.^[24]

Notwithstanding

In addition, section 15 is subject to the "notwithstanding clause" of the Charter that allows the federal Parliament and the provincial Legislatures to declare that a law is exempt from certain sections of the Charter for up to five years, which exemption may be renewed any number of times. In 2000, Alberta amended its Marriage Act to define marriage as being between a man and a woman.^[25] The law invoked the notwithstanding clause of the Charter, but the amendment was nevertheless invalid since the capacity to marry is a matter of exclusive federal jurisdiction according to the Constitution.^[26] The notwithstanding clause can only be used to make exceptions to the Charter; it cannot change the federal division of powers. In any case, the five-year exemption period expired in 2005.

The notwithstanding clause has never been used by the federal Parliament. It is generally believed that such a use would constitute a politically embarrassing admission that the law in question should violate human rights.

However, the notwithstanding clause is no gateway for a government to exercise unjust or oppressive uses of political power. Section 33 of the Charter, as the entire Charter, is also subject to section 1,^{[citation needed]} and, as it applies only to sections 2 and 7 to 15, is of no force or effect for overriding section 1.

Division of jurisdiction between federal government and provinces

In addition to the Charter, another significant constitutional factor is the division of authority between the federal government and the provincial governments. Under the Constitution of Canada, some matters are allocated to the exclusive jurisdiction of the federal Parliament, while other matters are allocated to the exclusive jurisdiction of the provincial legislatures. Many of the issues which have direct impact on LGBT rights are under provincial jurisdiction.

Major subjects under federal jurisdiction are the criminal law power, and marriage and divorce. The criminal law power can deal with matters such as hate speech and sentence modifiers for bias motives. In the past, it has been used to criminalise LBGT conduct. The federal jurisdiction over marriage and divorce gives Parliament the power to determine which parties can marry, and also the rules governing divorces, also LGBT issues of interest.

Subjects under provincial jurisdiction include matters such as spousal support for unmarried couples, adoption, filiation of children, vital statistics (including identity documents such as birth certificates), child custody and support, education, housing, health care, pensions and social security. As well, most workplaces fall under provincial jurisdiction.^[27]

Human rights law follows this allocation of subjects.^[28] The Canadian Human Rights Act is of relatively limited application, applying mainly to the federal government and federally regulated workplaces, such as banks, aviation, and inter-provincial transportation. Provincial human rights laws apply to a much broader range of subjects. Provincial human rights laws apply to most schools, rental housing and health care, and workplaces.

Legality of same-sex sexual activity

Overview

Same-sex sexual activity has been legal in Canada since 1969. Since June 2019, the general age of consent for all sexual activities has been 16. However, where there is a relationship of trust, authority or dependency, the age of consent is 18. The relationship must not be exploitative of the young person. Any form of sexual abuse and exploitation is seriously proscribed by law in respect of any person, regardless of age. Age of consent laws also provide "close in age" exceptions for youngsters aged 12 through 15. Those exceptions are also subject to the same prohibitions where there is a position of trust or an exploitative relationship.^[29]

History of decriminalization

During the British North American era, same-sex sexual activity between men was a capital crime.^[16] The death penalty was eventually repealed and a broader law involving gross indecency between men was often enforced in the late 19th century.^[17]

In June 1969, Parliament passed the Criminal Law Amendment Act, 1968–69, which decriminalized sexual activity between men, with an higher age of consent, set at 21 years.^[30] In 1987, the age of consent for homosexual practices was set at 14, which was the age of consent for heterosexual sex.^[31][32][33] However, section 159 of the Criminal Code continued to make it a criminal offence to engage in anal intercourse with a woman or with a man if one of the parties was under 18 (with an exception if the act was committed by a married couple) or if more than two persons were present in the room where it took place.^[32][33]

After the enactment of the Charter, courts in Ontario,^[34] Quebec,^[35] British Columbia,^[36] Nova Scotia,^[37] and Alberta^[38] each independently declared section 159 to be unconstitutional as a violation of the equality provision of the Charter. Since the early 2000's, no conviction for private and consensual anal sex appears to have taken place; in more recent times, some individuals were charged with the offence, but ultimately declared not guilty.

On November 15, 2016, the Liberal Government introduced legislation to repeal section 159 of the Criminal Code. The bill, C-32, would have set the age of consent for anal intercourse to 16, which has been the age of consent for all other types of sexual activities since 2016.^[39] The bill was later incorporated into a new bill, C-75, which was tabled in late March 2018. Liberal MP Randy Boissonnault, a special advisor to the prime minister on LGBTQ2 issues, stated on behalf of the Government: "We heard from the community that section 159 is a piece of archaic legislation that has continued to affect young men, so it's important to get this debated and passed through the house."^[40] On June 21, 2019, the bill received royal assent and was enacted as law.^[2]

Apology to LGBTQ+ people

On November 28, 2017, Prime Minister Justin Trudeau issued a formal apology in Parliament to members of the LGBTQ+ community:^[41]

It is with shame and sorrow and deep regret for the things we have done that I stand here today and say: We were wrong. We apologize. I am sorry. We are sorry... To members of the LGBTQ+ communities, young and old, here in Canada and around the world: You are loved. And we support you. To the trailblazers who have lived and struggled, and to those who have fought so hard to get us to this place: thank you for your courage, and thank you for lending your voices. I hope you look back on all you have done with pride. It is because of your courage that we're here today, together, and reminding ourselves that we can, and must, do better. For the oppression of the lesbian, gay, bisexual, transgender, queer, and two-spirit communities, we apologize. On behalf of the government, Parliament, and the people of Canada: We were wrong. We are sorry. And we will never let this happen again.

— Prime Minister Justin Trudeau, 28 November 2017

On June 21, 2018, the Governor General granted royal assent to the Expungement of Historically Unjust Convictions Act (French: Loi sur la radiation de condamnations constituant des injustices historiques).^[42][43] The Act allows a person who was convicted of certain homosexual acts prior to their being lawful in 1969, or later on, of anal intercourse under the now repealed section 159 of the Criminal Code, to have the RCMP, and federal departments or agencies, "destroy or remove any judicial record of the conviction". The Act also requires that any provincial or municipal police force, or courts, which were involved in such convictions to be notified of the expungement order.

The Parole Board of Canada has stated that an expungement is different from a record suspension or pardon, which is for those who were duly convicted of a crime.

With expungement, the Government recognizes that those whose record of conviction constitutes a historical injustice should not be viewed as "former offenders." Their conviction was for an act that should never have been a crime and had the conviction occurred today, it would likely be inconsistent with the Canadian Charter of Rights and Freedoms. If an application for expungement is approved, federal records of that conviction will be destroyed or removed. Unlike a record suspension/pardon, expungement is also available to those both living and deceased.^[44]

One commentator stated that while a pardon is about the Queen forgiving someone for doing something wrong, an expungement means: "The Queen did something wrong. Will you forgive her?"^[45]

Police chiefs of Canada apology

In December 2020, Police chiefs of Canada made a formal apology - for the decades of oppression and opposition towards homosexuality and LGBT rights within the 1960s through to today across Canada.^[46]

We felt on the International Day of Human Rights this year was the right opportunity for us to make the apology, to reconcile our past, and to begin the healing process moving forward. On behalf of the Canadian Association of Chiefs of Police, I want to sincerely apologize for the harm we caused by not fully supporting Two-spirit, Lesbian, Gay, Bisexual, Transgender, and Queer Communities. We now have a better understanding of the impact that specific laws, policies and decisions had on the community and how we contributed to institutional bias, intolerance, and the violation of human rights. We acknowledge the pain our actions have caused, the personal suffering, shame and trauma our public positions contributed to, and the deep distrust and divide that was created by the positions we took. We take responsibility for our past wrongdoings and, on behalf of the Canadian Association of Chiefs of Police, I am sorry.^[47]

— Bryan Larkin, president of the Canadian Association of Chiefs of Police, 10 December 2020

It is critical for all Canadian police services to show support to Two-Spirit, Lesbian, Gay, Bisexual, Trans, Transgender, and Queer (2SLGBTQ+) members within communities and organizations across Canada. We must stand together against homophobia, transphobia, and any other kind of marginalization, shaming, disrespect or hate. To ensure the national strategic priority would be translated into tangible and practical actions, the CACP created the Equity, Diversity and Inclusion Committee with a mandate to support efforts to create and enhance police practices that promote fairness, equity and inclusion through the identification, mitigation and elimination of the impact of implicit bias and discrimination in practices and policies that may support systemic barriers, and to promote the advancement of diversity within policing institutions. It is essential for police organizations to recognize the impact of their words and actions. While we have improved to better practice and uphold principles of equity, diversity and human rights, there is still much work to be done and the CACP is working hard to support police organizations across the country in their efforts to champion the systemic changes that need to be made to create an inclusive and equitable society for all.^[48]

— Deputy Chief Roger Wilkie & Suelyn Knight, Co-chairs of the CACP Equity, Diversity and Inclusion Committee, 10 December 2020

Recognition of same-sex relationships

Same-sex marriage

Same-sex marriage in Canada
BC AB SK MB ON QC NB PE NS NL YT NT NU
Legal
Reference Re Same-Sex Marriage Halpern v Canada (AG) Civil Marriage Act
Parliament
38th House · 38th Senate 39th House · 39th Senate
Same-sex marriage by province
Related
Civil unions in Quebec Adult interdependent relationship in Alberta Domestic partnership in Nova Scotia Common-law relationships in Manitoba
v t e

Provincial initiatives

Even before 2005, when Parliament enacted the Civil Marriage Act implementing same-sex marriage across the country, same-sex relationships were already recognized by many provinces, as some provincial statutes were already assigning the same rights and obligations to same-sex and opposite-sex couples living together.

In 2001, Saskatchewan enacted a pair of statutes relating to domestic relations. The two acts amended all provincial statutes which related to the rights and obligations of common law couples, and applied them equally to all common law couples, whether opposite-sex or same-sex couples.^[49][50]

In 2002, Quebec addressed the situation of conjoints de fait (de facto spouses), both same-sex and opposite-sex. The National Assembly amended the Civil Code of Quebec to provide same-sex and opposite-sex couples with an all-encompassing solution, the most extensive possible within provincial jurisdiction. The amendments created a legal status of civil unions.^[51] Couples who choose to form such a union, regardless of gender or sexual orientation, benefit from the same effects as those of marriage, "as regards the direction of the family, the exercise of parental authority, contribution towards expenses, the family residence, the family patrimony and the compensatory allowance."^[52] Since then, in addition to being bound to share a community of life, and owing each other respect, fidelity, succour and assistance, civil union spouses have the same rights, duties and obligations as married couples. However, unlike marriage, which is under federal jurisdiction, a civil union is valid only in Quebec, and may not be recognized outside of the province. The couple may be faced with unexpected problems if they are outside Quebec.^[53]

Court decisions

Between 2002 and 2005, courts in several provinces and one territory ruled that restricting marriage to opposite-sex couples is a form of discrimination that is prohibited by Section 15 of the Charter. The courts struck down the common law definition of marriage used under federal law, and held that same-sex couples had the right to marry in those jurisdictions. Trial courts deferred the effect of their rulings, to allow the federal government time to consider whether it would enact legislation or appeal the decisions. However, the Ontario Court of Appeal in its decision held that the new definition came into effect immediately in Ontario.^[54] Courts in other provinces and one territory followed that approach, with the result that those Canadian jurisdictions became the third in the world to allow same-sex marriage, after the Netherlands and Belgium. By July 2005, same-sex marriages were legally recognized in all provinces and territories except Alberta, Prince Edward Island, the Northwest Territories and Nunavut, encompassing over 85% of Canada's population.

Federal government response

The Federal Government announced in the summer of 2003 that it would not appeal the decisions, and would draft legislation to allow same-sex marriages across the country. The bill was put before the Supreme Court of Canada to ensure that it would withstand a Charter challenge by those who oppose same-sex marriage. In December 2004, the Supreme Court declared the proposed definition of "marriage" as being consistent with respect to all matters referred to in the Charter, and as falling within the exclusive legislative authority of the Parliament of Canada.^[26]

Parliament passed the bill on July 20, 2005, making Canada the fourth country to legalize same-sex marriage nationwide, and the first to do so without a residency requirement.^[55]

Public opinion

One study by Mark W. Lehman suggests that between 1997 and 2004, Canadian public opinion on legalizing same-sex marriage underwent a dramatic shift: moving from minority support to majority support and that this support was the result of a significant shift in positive feelings towards gays and lesbians.^[56]

Adoption

The first province to allow adoption of children by same-sex couples in Canada was British Columbia in 1996.^[57] Since then, adoption by same-sex couples has been legalized in Ontario (1999),^[58] Nova Scotia (2001),^[59] Saskatchewan (2001),^[49] Newfoundland and Labrador (2002),^[60] Quebec (2002),^[51] Manitoba (2002),^[61] the Northwest Territories (2002)^[62][63] and Yukon (2003).^[64] In Alberta, stepchild adoption was legalized in 1999.^[65][66][67] Eight years later, in 2007, joint adoption became legal in Alberta.^[68] New Brunswick legalized joint adoption in 2008,^[65][69] while Prince Edward Island did so in 2009.^[70] Nunavut legalized adoption by same-sex couples in 2011, and thus became the last province or territory in Canada to do so.^[71] Three provinces (British Columbia, Ontario, and Saskatchewan) will grant parental status to three or more intentional parents allowing for a wider range of queer and trans families. These parents may be in addition or in place of the birth parent. However, some find the "law operated within some strong normative constraints."^[72]

Discrimination and harassment protections

Enforcement mechanism

The Federal Government and every province and territory in Canada have enacted human rights acts that prohibit discrimination and harassment on several grounds (e.g. race, sex, gender identity or expression, marital status, religion, disability, age and sexual orientation) in private and public sector employment, housing, public services and publicity. Some acts also apply to additional activities. These acts are quasi-constitutional laws that override ordinary laws as well as regulations, contracts and collective agreements.^[73] They stand by the rule that every person has the right to the equal benefit of the law. They are typically enforced by human rights commissions and tribunals through a complaint investigation, conciliation and arbitration process that is slow, but free, and includes protection against retaliation. A lawyer is not required.

Anti-discrimination definitions

Sexual orientation is not defined in any human rights act, but is widely interpreted as meaning heterosexuality, homosexuality and bisexuality. It does not include transgender people.^[74] The Federal Court of Canada has stated that sexual orientation "is a precise legal concept that deals specifically with an individual's preference in terms of gender" in sexual relationships, and is not vague or overly broad.^[75]

As of 2017, all human rights acts include "gender expression" and/or "gender identity" as prohibited grounds for discrimination. Previously, human rights tribunals had interpreted their human rights acts as including gender identity and gender expression under the category of "sex" as a prohibited ground for discrimination.^[76][77][78]

The Ontario Human Rights Commission has adopted the following definition:

Sexual orientation is more than simply a 'status' that an individual possesses; it is an immutable personal characteristic that forms part of an individual's core identity. Sexual orientation encompasses the range of human sexuality from gay and lesbian to bisexual and heterosexual orientations.^[79]

And defines gender identity and gender expression as follows:

Gender identity is each person's internal and individual experience of gender. It is their sense of being a woman, a man, both, neither, or anywhere along the gender spectrum. A person's gender identity may be the same as or different from their birth-assigned sex. Gender identity is fundamentally different from a person's sexual orientation. Gender expression is how a person publicly presents their gender. This can include behaviour and outward appearance such as dress, hair, make-up, body language and voice. A person's chosen name and pronoun(s) are also common ways of expressing gender.^[78]

Similar definitions exist in other provinces' Human rights commissions, for example, Quebec's Commission defines sexual orientation as the emotional or sexual attraction to someone, and, as a personal characteristic, as being permanent or difficult to change.^[80]

All human rights laws in Canada also explicitly prohibit discrimination based on disability, which has been interpreted to include AIDS, ARC and being HIV-positive, and membership in a high-risk group for HIV infection.^[19]

Federal law

On June 20, 1996, the Canadian Human Rights Act (CHRA; French: Loi canadienne sur les droits de la personne) was amended to include sexual orientation as a protected ground. The CHRA guarantees the right to equality, equal opportunity, fair treatment and an environment free from discrimination in employment and the provision of goods, services, facilities or accommodation within federal jurisdiction, such as federal departments and agencies, the Canadian Armed Force, banks, radio and television stations, airlines, and interprovincial transportation facilities.

Attempts to add "gender identity and expression" as protected grounds began when NDP MP Bill Siksay introduced a private member's bill in the House of Commons in 2005. When it failed to pass before Parliament was dissolved, he reintroduced the bill in 2006 and again in 2009, with additional provisions to add gender identity and expression to the hate crimes provisions of the Criminal Code.^[81] In February 2011, it passed third reading in the House of Commons with support from all parties, but was not considered in the Senate before Parliament was dissolved for the 41st Canadian federal election. Similar bills were introduced in the next Parliament, and Randall Garrison's bill was passed in the House of Commons, but it died on the Senate order paper when the 2015 federal election was called.^[82]

In May 2016, the government introduced An Act to amend the Canadian Human Rights Act and the Criminal Code, to add "gender identity or expression" in the Canadian Human Rights Act and the hate crimes provisions of the Criminal Code.^[83] In June 2017, the Canadian Parliament passed the bill and it received royal assent a week later. The law went into effect immediately.^[84][85][86]

Provincial and territorial lawsedit

In 1977, the Quebec Charter of Human Rights and Freedoms, which is both a charter of rights and a human and youth rights act, was amended to prohibit discrimination based on sexual orientation, and later harassment, in 1982. Thus, the province of Quebec became the first jurisdiction in the world larger than a city or county to prohibit sexual orientation discrimination, and harassment (including but not limited to mockery, insult, bullying, and intimidation at school, or at work), in the private and public sectors. The law was later amended to include gender identity and gender expression in 2016.^[87] Since 2008, Quebec's Ministry of Justice has specifically been assigned for the fight against homophobia, so as to perform full social acceptance among and within Quebec's population. "The mandate of the Bureau de lutte contre l'homophobie is to oversee the implementation, monitoring and assessment of the Government Action Plan against Homophobia," which "promotes respect for the rights of sexual minority members," and sets down "the creation of safe, inclusive environments," as one of its five priorities.^[88][89]

In 1984, in Manitoba, LGBT activists pushed for inclusion of protection from discrimination on the grounds of sexual orientation with tactics including a 59-day hunger strike by Richard North.^[90] In 1987, Manitoba passed the Human Rights Code which included protections from discrimination based on sexual orientation.^[91]

In 1998, the Supreme Court ruled in Vriend v. Alberta that the exclusion of sexual orientation from human rights acts was a violation of section 15(1) of the Charter of Rights and Freedoms. Sexual orientation was thus protected by law under every jurisdiction in Canada. In 2009, Alberta became the last jurisdiction in Canada to add "sexual orientation" to its human rights code.

Since June 2017, all provincial and territorial human rights legislation explicitly prohibits discrimination based on gender identity, and some also explicitly include gender expression.^[92]

LGBT discrimination protections tableedit

Activities where equality guaranteededit

Accordingly, discrimination, including harassment, based on real or perceived sexual orientation, gender identity, or HIV/AIDS status is prohibited throughout Canada in private and public sector employment, housing, services provided to the public and publicity. All aspects of employment are covered, including benefits for spouses and long-term partners. Examples of services include credit, insurance, government programs, hotels and schools open to the public. Schools open to the public are liable for anti-gay name-calling and bullying by students or staff.^[130] LGBT Canadians have been allowed to serve in the military since the Douglas case was settled in 1992.^[131]

Prohibited discrimination occurs not only when someone is treated less favourably or is harassed based on a prohibited ground, but also when a uniform policy or practice has a perhaps unintended disproportionately adverse effect based on the ground. This is called "adverse effect discrimination."^[132] For example, it might in theory be discriminatory for schools open to the public to require parental consent for student participation in all school clubs, assuming that students are less likely to ask for or get permission to participate in gay–straight alliance clubs.

Exceptionsedit

Human rights acts have no exceptions specifically for sexual orientation or gender identity, however, human rights acts typically include an exception for "bona fide requirements" or qualifications that applies to most grounds (e.g. sex, sexual orientation, disability), but only when the stringent requirements of the Meiorin Test are met.

Since human rights acts are quasi-constitutional laws, it is not possible for job applicants or unions, for example, to sign away equality rights.^[73] However, other laws may explicitly say that they apply notwithstanding a human rights act. Furthermore, some collective agreements include broad non-discrimination provisions that actually expand upon the rights listed in human rights acts.