Legal News - Ontario - Marriage equality without qualification

March 20, 2006

Marriage equality without qualification
Ontario Human Rights responds to LGBT inclusion
By Kevin Bourassa and Joe Varnell

Gay marriage, same-sex marriage, queer marriage: gay and lesbian partnerships have been portrayed under many terms in private, in public, and in the media. But as we have said since our earliest interviews (2000), we see ourselves in a marriage. The word "gay" does not appear on our marriage certificate.

With the inclusion of same-sex couples in marriage, old terminology like "same-sex partnerships" can be replaced. Gay or straight, the terms are now the same.

The Ontario Human Rights Commission (OHRC) announced updates to its Policy on Discrimination and Harassment on March 16. The move further demonstrates the leading role Ontario has played in protecting Canada's commitment to diversity, equality, and a just society.

"Discrimination and harassment based on sexual orientation have no place in our society," said Chief Commissioner Barbara Hall. "The Commission's updated policy stresses the positive obligations individuals and organizations have to respect, protect, and promote the rights of gays and lesbians."

The OHRC's announcement underscores how things have progressed since marriage equality became a reality in Canada with the Ontario court victories.

"The updated policy," the OHRC says, "reflects the significant court decisions and legislative changes since that time ... expand[ing] the ground of marital status to include same-sex relationships. The updated policy considers that individuals often face unique discrimination based on a combination of personal characteristics and stereotypes. For example, an Ontario human rights tribunal found that a gay man who took sick leave from his job was discriminated against when he was subjected to rumours that it was because he had AIDS.

"The updated policy also discusses subtle and systemic discrimination, and clarifies the responsibility of organizations to address human rights concerns. For example, in 2005, the British Columbia Court of Appeal found that a North Vancouver school district had failed to take sufficient steps to stop a repeating pattern of homophobic harassment. Because of this case, the school board instituted comprehensive anti-harassment policies and programs, taking a strict zero-tolerance approach to the subject. "

References to "same-sex partnerships" have been removed from the policy, as the qualifier is no longer necessary.

"Marital status is defined under section 10(1) of the Code as “the status of being married, single, widowed, divorced or separated and includes the status of living with a person in a conjugal relationship outside marriage”. This definition is inclusive of same-sex couples, whether married or “common-law”. Therefore, the separate ground of “same-sex partnership” has been removed. Complaints brought by persons regarding discrimination on the basis of a conjugal relationship with a person of the same sex will be addressed as discrimination based on the grounds of sexual orientation and marital status, in addition to any other grounds that may be involved."

Family Status

"Family status is a protected ground in the Code, and is defined under section 10(1) as the 'status of being in a parent and child relationship'. Lesbian, gay and bisexual people may have children through previous heterosexual unions, same-sex relationships with biological parents, adoption, or assistive reproductive technologies. Homophobic stereotypes and lack of legal recognition have both contributed to discrimination faced by these individuals and families. Gay, bisexual and lesbian people may also form important dependency and caregiving relationships that are not currently recognized under this ground of the Code or other provincial and federal legislation."

The way from tolerance to acceptance

Although legislation has been changed, and case law established, protection in court is cold comfort for people who experience intolerance and bigotry in public. The OHRC outlines how society will continue to progress, urged along by significant stakeholders.

"The ultimate responsibility for a healthy and inclusive environment rests with employers, landlords, unions, vocational and professional organizations, service providers, and other organizations and institutions covered by the Code. There is an obligation to ensure that environments are free from discrimination and harassment. It is not acceptable from a human rights perspective to choose to remain unaware of the potential existence of discrimination or harassment, or to ignore or fail to act to address human rights matters, whether or not a complaint has been made."