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The Canadian Lesbian and Gay Archives / Material |
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| What we demanded; What we got / Appx 7,500 words / 1 image / 65 K total |
Parliament Hill, August 28, 1971
(Photo: Canadian Lesbian & Gay Archives,
uncredited; possibly by Jearld Moldenhauer)
What we demanded;
What we got
Follow-up to "We Demand", 1971
In Issue 76 of The Body Politic, September 1981, Ed Jackson looked back ten years to August 28, 1971, date of (to paraphrase the headline) "the demo that launched a decade of gay militancy."
On that day a substantial crowd (1971 estimates ranged from 100 to 200 people; Ed in 1981 settled on 150) "marched back and forth across Parliament Hill in Ottawa to draw attention to the 'demands and grievances of homosexual citizens' outlined in a brief to the federal government."
That brief, dated August 21, 1971, had been published in full in Issue 1 of The Body Politic. It was titled there We Demand (the full text is available here online). It listed ten demands. Ed noted in his 1981 story that, a full decade later, only one of those demands had been met.
This document tracks what has happened to all the demands -- so far, and as far as I have been able to discover. It is based on a bigger background document (18,000 words in 10 separate web pages), What we got: The details, summarizing more than 170 related stories in The Body Politic and Xtra from 1974 to May 1997. Other sources consulted:
An overview appears just below. Following that are separate sections dealing with issues addressed in We Demand -- and showing each demand. Links listed at the end of the overview can lead you directly to any section. Further links in each section connect to more information on specific pages of What we got: The details.
The August 28, 1971 protest on Parliament Hill was held to mark an anniversary. On August 26, 1969, amendments to the Criminal Code had come into effect that made certain sex acts -- committed in private between any two consenting persons 21 or older -- no longer illegal. Before that, all homosexual sex (defined in law as "buggery" and "gross indecency") had been a criminal offence.
This legal change had less to do with organized gay protest (though there had been some, going back to the mid- 1960s), than with a changing moral climate. Britain had revised its Sexual Offences Act in much the same way in Jul 1967, based on recommendations in the Wolfenden Report -- published ten years earlier. Canadian abortion laws were also reformed in 1969.
Gary Kinsman called this "part of a broader process of reclassifying homosexuals, prostitutes, juvenile 'sex offenders,' and women seeking abortions as 'sick' or 'inadequate,' but no longer as necessarily criminal." As then justice minister Pierre Trudeau famously said after introducing, in Dec 1967, the reforms that would become law in 1969: "The state has no place in the bedrooms of the nation."
But Trudeau was also motivated by a glaring example of the state's place in the regulation -- and punishment -- of sexuality. On Nov 7, 1967, the Supreme Court of Canada had dismissed the appeal of Everett George Klippert, declared a "dangerous sexual offender" subject to indefinite detention -- based on self- confessed, non- violent, and mutually consensual sex with other adult men in private.
The case had drawn susbstantial media comment. One story in the Toronto Star was headlined: "Gentle George Klippert -- Must He Serve Life?" There was growing consensus (though hardly unanimous agreement) that he should not -- and that no one should face such penalties for clearly victimless "crimes." (Klippert was not paroled until Jul 20, 1971. See Kinsman and McLeod for much more on his case, and on the debate leading up to the 1969 amendments.)
But much of our sexuality -- in places not deemed "private", involving more than two people, or anyone under 21 -- remained subject to criminal law. It is no surprise, then, that the first demands made in 1971 were for further Criminal Code reform.
Most of the other demands in We Demand would end up being affected (and many finally effected) by a document even more influential than the Criminal Code. In 1982, Canada "patriated" its constitution from Britain and included in it for the first time a Charter of Rights, ensuring certain fundamental freedoms for all Canadians. Its "Equality Rights" section lists various grounds on which discrimination is prohibited.
"Sexual orientation" is not on that list. But the grounds listed are preceded by "in particular" -- meaning that discrimination might be challenged on other grounds as well. And, after the Charter came into effect in Apr 1985, that is exactly what happened. In the long struggle for gay rights in Canada, the words "in particular" turned out to be perhaps the two most important words in constitutional law. See much more on the Charter under Federal human rights protection.
Despite the struggles recorded below, changes to federal law -- the focus of We Demand -- were a sideshow to what became the Canadian gay movement's main game: battles to include the term "sexual orientation" in municipal, provincial, and territorial human rights laws. What we got: The details lists more than 170 stories on the federal front alone; had it covered other human rights efforts across the country, it would have listed many hundreds more.
As it is, this record takes us through six prime ministers, 10 ministers of justice (four of them later prime minister), at least four solicitors- general, a smattering of other ministers responsible (or not) -- and more than 25 years.
Perhaps the most telling lesson here is this: winning respect for our rights, and indeed for ourselves -- not just in kind words and good intentions, but in the law -- can take a very, very long time.
The first three demands (and parts of others) made in August 1971 related to the Criminal Code of Canada. They were:
1. The removal of the nebulous terms "gross indecency" and "indecent act" from the Criminal Code and their replacement by a specific listing of offences, and the equalization of penalties for all remaining homosexual and heterosexual acts; and defining "in private" in the Criminal Code to mean "a condition of privacy."2. Removal of "gross indecency" and "buggery" as grounds for indictment as a "dangerous sexual offender" and for vagrancy.
3. A uniform age of consent for all female and male homosexual and heterosexual acts.
The 1969 amendments to the Criminal Code had been part of an "omnibus" bill, including legal reforms not only on sex offences but on matters as wide ranging as abortion, contraception, gambling, lotteries, and gun control. This is a common way for governments to deal with potentially divisive issues. And it would be the vehicle for further Criminal Code reform. We have seen quite a few omnibuses come and go since 1971 -- most passing us by.
Some would deal with an issue not anticipated in We Demand: pornography. But anti-porn laws would end up having a significant, if indirect, impact on the effective age of consent.
As early as 1974, the Law Reform Commission of Canada recommended that all but the most serious sexual offences be removed from the Criminal Code. They reiterated that call in a Nov 1978 report, saying laws prohibiting buggery, bestiality, gross indecency, indecent assault, and rape should be replaced by only two provisions: "sexual interference" and "sexual aggression". The report also said there should be a uniform age of consent, possibly 18.
More than two years later, in Dec 1980, then justice minister Jean Chrétien said he would introduce a bill incorporating most of the Law Reform Commission proposals. He did, in early 1981. But in Jun 1982, in the face of a vocal "morality" campaign, he withdrew it. By Aug 1982 a more "palatable" version was passed. "Rape" was indeed replaced by three "sexual assault" provisions (of escalating severity). "Buggery" remained an offence, as did sex among more than two persons. The age of consent for homosexual acts remained 21.
By Jun 1983 a new justice minister, Mark MacGuigan, said further reforms were on the way -- but would focus on pornography. (Chrétien's 1981 bill had included a "kiddie porn" provision that didn't make it into law.) A commission to study pornography and prostitution (the Fraser Committee) was set up, and another (the Badgeley Committee) on sexual offences against children.
Both released their reports in early 1985. Between them, they called for a uniform age of consent (16 for most sexual acts; 18 for anal or vaginal penetration) and some other progressive reforms. But other recommendations would make it a crime to portray anyone under 18 in pornography, or to "advocate sexual abuse of children" -- defined as anyone under 18.
In Jun 1986 John Crosbie, justice minister under the new Conservative government, tabled two bills incorporating many recommendations in the Fraser and Badgeley reports. But both bills died as the Parliamentary session ended in August.
In Jun 1987, Parliament passed another omnibus Criminal Code reform bill, to take effect Jan 1, 1988. It is still largely in effect (see The bottom line below) -- though one section of particular (if not exclusive) relevance to gay men, on anal sex, has been struck down as a violation of the Charter of Rights. In Jun 1993 the Conservatives rushed through a pre-election "kiddie porn" law -- also still in effect.
The details
See 32 related stories (3,000 words), 1974 to 1995, in the page on Criminal Code reform.
The bottom line
Relevant criminal law as it stands today is summarized in What we got: The details / Current state of the Criminal Code. Links there lead to the full text of many sections of the Code. In brief, here's what happened to the three demands above:
Section 159, Anal intercourse, replaced the old provision on buggery -- as well as the conditions under which it is not a crime: if done in private between husband and wife; or by any two consenting persons 18 years of age or older. (Note: only two: looser definitions of "in private" were not extended to anal intercourse.) The higher age of consent for this act was ruled a violation of the Charter of Rights in 1995, and this entire section deemed to be "of no force and effect."
However, while the general age of consent is 14, other parts of the Criminal Code impinge on sex with or among people under 18. Section 163.1 defines "child pornography" as anything showing sexual acts with anyone who is or is depicted as being under 18 (and makes it the only kind of pornography for which simple possession is a crime). Sections 170 and 171 criminalize "procuring" of, or permitting sexual activity by, people under 18. Section 172 prohibits "Corrupting children" -- defined as being under 18. Section 212 makes it a crime to obtain sex from anyone under 18 for "consideration" (money, shelter, gifts, etc.).
So, behind a now uniform (and, some would say, surprisingly liberal) age of consent provision, there lie other laws that can still criminalize the sex lives of young people.
Back to List of sections
What we got: The details / Current state of the Criminal Code
Immigration
No longer "undesirable"
Despite proposals for reform going back to 1966, the Immigration Act in 1971 still prohibited homosexuals entry into Canada as "undesirable" -- along with pimps, prostitutes and drug addicts. We Demand insisted that:
4. The Immigration Act be amended so as to omit all references to homosexuals and "homosexualism."
This is the only demand made in 1971 that was met in the following decade. But it took some time to go from good intentions into law.
In Oct 1974, Minister of Manpower and Immigration Robert Andras said he would recommend removal of the ban on homosexuals. But a Feb 1975 government Green Paper on Immigration did not include that reform. Parliamentary committee hearings on the paper, held around the country, heard from many angry gay groups.
By Nov 1975 the committee agreed the ban should be dropped. But legislation to do so was not introduced for more than a year. It was passed in Jul 1977 -- but did not become effective until Apr 1, 1978.
The details
See 12 related stories (800 words), 1974 to 1978, in the page on Immigration.
The bottom line
Demand met, six years and seven months after it was made.
Back to List of sections
Federal employment rights
"National security" vs the Charter of Rights
5. The right of equal employment and promotion at all government levels for homosexuals.
The goal of this demand in 1971 was not simply to achieve employment rights, but to challenge the usual rationale for withholding them: "national security." Homosexuals were considered susceptible to blackmail and thus an automatic security risk.
In May 1977, solicitor general Francis Fox -- echoing arguments that had been made in We Demand -- said that "being an overt or publicly professed homosexual would in no way prevent" a person from being employed by "any government department or agency." Out of the closet, blackmail was not a risk.
But both the Armed Forces and the Royal Canadian Mounted Police (RCMP) continued to use old "security" and "operational effectiveness" rationales to harass and dismiss lesbians and gay men. Both forces eventually had to submit to the Charter of Rights and Freedoms and stop their discriminatory practices -- but they fought long and hard before giving in. See much more under Canadian Armed Forces, the RCMP, and Federal human rights protection, all below.
The details
See 2 stories (130 words) from 1977 in the page on Federal employment rights.
The bottom line
This demand was eventually met -- but in many stages, and not fully for almost 25 years. The Canadian Human Rights Act, regulating employment with the federal government, was not amended to cover sexual orientation until Jun 1996. See Federal human rights protection.
Back to List of sections
Divorce and child custody
A non-issue and a big (but not federal) one
6. The Divorce Act be amended so as to omit sodomy and homosexual acts as grounds for divorce; moreover in divorce cases homosexuality, per se, should not preclude the equal right of child custody.
Reforms to the Divorce Act never caught fire as a movement issue. I believe the ones demanded here were eventually enacted (though I have not done enough research on this to say how or when).
Child custody did become a major issue, particularly for lesbian mothers -- though these battles were fought in the courts, not in the arena of federal law. Even in 1971, the law did not specifically probibit custody by a homosexual parent, saying only that the "conduct of the parties" in a divorce was an important criterion. Over time, courts would (sometimes, not always) decide that living with a gay or lesbian parent was in "the best interest of the children."
The details
See 2 stories (230 words), 1982 and 1983, in the page on Divorce and child custody.
The bottom line
Demand effectively met (I think).
Back to List of sections
Canadian Armed Forces
From "deemed necessary to discriminate" to forced non-discrimination
7. The right of homosexuals to serve in the Armed Forces, and therefore the removal of provisions for convicting service personnel of conduct and / or acts legal under the Criminal Code; further the rescinding of policy statements reflecting on the homosexual.
Anti-gay discrimination by the Canadian Armed Forces began to be challenged in the mid-1970s, often by service personnel brave enough to come out and fight the consequences. Many garnered media attention and the support of the gay movement -- but, for years, they always lost. Service policy did not allow "the retention of sexual deviates in the Forces." In 1978 a court ruled that "Relations between the Queen and Her military personnel, as such, in no way give rise to remedy in the civil courts."
Major purges -- particularly of lesbians -- were reported in 1977 and 1985, with individual cases of harassment and dismissal also coming to light. In 1979 the Chief of Defence Staff had justified it all by saying: "Experience has shown that the presence of homosexuals can be most disruptive. Such disruption often takes the form of physical attacks on the homosexual concerned."
He concluded: "There is only one way of insuring our servicemen and women that their rights will be respected: by denying employment to homosexuals."
By 1985 there was another way to insure rights: the Canadian Charter of Rights and Freedoms, in effect as of Apr 17. By Mar 1986 the federal government pledged to end anti- gay discrimination in "all areas of federal jurisdiction" -- including the Armed Forces. The Forces fought back, seeking exemption on the grounds of "operational effectiveness."
In May 1989, the Forces stopped dismissing gay and lesbian personnel -- but barred them from promotion, training, or security clearances, putting their careers in limbo. In 1991 a court ruled that this treatment violated the Charter -- which an earlier ruling had said protected people from discrimination based on sexual orientation.
The Forces finally surrendered on Oct 27, 1992, in a settlement with lesbian Michelle Douglas, who had challenged her 1988 dismissal. Douglas got $100,000; the Forces got a court order forcing them to concede that their anti- gay practices violated the Charter and would stop forthwith. A statement issued by the Chief of Defence Staff the same day said: "Canadians, regardless of their sexual orientation, will now be able to serve their country in the Canadian Forces without restriction."
The details
See 20 stories (1,470 words), 1977 to 1992, in the page on the Canadian Armed Forces.
The bottom line
Demand met -- 21 years and two months after it was made.
Back to List of sections
Royal Canadian Mounted Police
Homo files and the fruit machine
8. To know if it is a policy of the Royal Canadian Mounted Police to identify homosexuals within any area of government service and then question them concerning their sexuality and the sexuality of others; and if this is the policy we demand its immediate cessation and destruction of all records so obtained.
The RCMP is Canada's federal police force and, until 1984, was the country's primary intelligence service. It was indeed their policy to spy on and keep files on homosexuals -- and many other potential "subversives" as well.
This was obviously suspected in 1971, but was not confirmed until 1977 -- as part of much more sweeping revelations of wrongdoing uncovered by the McDonald Royal Commission on the RCMP. A 1980 book on the force revealed massive surveillance of homosexuals going back to the 1950s, and included the bizarre tale of the "Fruit Machine" -- a device meant to detect homosexual desire in men exposed to erotic pictures.
The dramatic extent of RCMP surveillance was exposed in the McDonald Commission's Aug 1981 report: the force had files on more than 800,000 people -- one out of every 30 Canadians. The report recommended abolition of the RCMP's intelligence function, creation of a civilian security agency -- and destruction of files based solely on a person's sexual orientation.
By early 1982 the government agreed to destroy the files -- but only after a policy to guide the process was in place. That took until early 1983. Confirmation that the files had been destroyed, and that "this category of file has been discontinued", did not come until Jun 1984. In the same month, the Canadian Security Intelligence Service (CSIS, independent of the RCMP) was established.
The RCMP also had a long-standing policy of excluding gay men and lesbians from its employ. A 1985 RCMP Policy in Respect of Homosexual Conduct, citing "bona fide operational / occupational impediment", reiterated that gay people were not, and would not be, "knowingly engaged or retained in the RCMP as peace officers."
But even the Mounties had to bow before the Charter of Rights. When the federal government promised in Mar 1986 to end anti-gay discrimination in "all areas of federal jurisdiction," the solicitor general of the day made it clear that that included the RCMP. Proof came by 1989, when an RCMP officer challenged dismissal based on his sexual orientation, and was reinstated.
The details
See 24 stories (1,970 words), 1975 to 1989, in the page on the RCMP.
The bottom line
Existence of homo files revealed six years after We Demand; the demand for their destruction took 12 years and 10 months to be met and confirmed.
Back to List of sections
Other rights in law
From an early '70s grab bag, some mid-'90s results
9. All legal rights for homosexuals which currently exist for heterosexuals.
Lest anything be forgotten, this blanket demand was prepared and served up with a smorgasbord of legal rights not enjoyed by homosexuals in 1971.
Some issues cited did not fall under federal jurisdiction, but were later addressed in provincial and territorial human rights codes (a list of when they were enacted is shown at the beginning of the section on Federal human rights protection.) A few dealt with concerns even more local. I'll cover each one separately.
(1) because homosexuals cannot legally marry, they face economic discrimination in that the benefits of filing joint income tax returns and conferring pensions rights are denied to them;
This touched on a topic that languished until the early 1990s -- and then became the gay and lesbian rallying cry of the day: "spousal" rights. Income tax, pensions, and other joint benefits such as coverage of partners under workplace group insurance plans were at issue in attempts to change definitions of "spouse" and "family" in both federal and provincial law.
The major provincial battle was in 1994, over Ontario's Bill 167, introduced by the governing New Democratic Party. It would have allowed (and, as some critics noted, possibly forced) same- sex couples to be defined as spouses. On Jun 9, 1994, in a free vote -- the NDP did not impose party discipline on its members -- the bill was defeated.
But many companies and government agencies were already extending "spousal" coverage to partners of gay and lesbian employees -- even though the federal Income Tax Act fails to recognize insurance plans that offer such same- sex benefits.
Further on the federal front, a court ruling in Nov 1989 had recognized two gay men as a "family" for the purpose of visiting rights in prison -- and ruled at the same time that the Charter of Rights prohibited discrimination based on sexual orientation. Earlier, the Canadian Human Rights Commission had ruled that "it is reasonable to conclude that homosexual couples may constitute a family." In 1993 the Supreme Court overturned this redefinition of "family status" -- but suggested a challenge based on "sexual orientation" might have fared better.
In May 1995, the Supreme Court ruled that restriction of old-age pension benefits to spouses of the opposite sex was a "reasonable limit" of the kind allowed by the Charter of Rights -- even though it was clearly discriminatory. Behind this loss was a deeper victory: the country's highest court had unanimously confirmed that the Charter did, indeed, generally prohibit discrimination based on sexual orientation.
In Jun 1996 the federal government was ordered by the Canadian Human Rights Commission to extend benefits to same- sex partners of all its employees. The government complied with part of the ruling, but appealed an order to revise all laws "which give benefits to heterosexual couples that are denied to same- sex couples."
The details: See 16 stories (1,350 words), 1983 to 1997, under Income tax and pensions in the page on Other rights in law. You'll find more information there on relevant court cases, the names of gay people now famous citations in human rights jurisprudence: Mossop; Beu & Veysey; Haig & Burch; and Egan & Nesbit.
The bottom line: We haven't reached it yet. Some benefits conferred on heterosexual couples, married or common- law, still don't extend to same- sex partners.
Postscript, Oct 1997: On Jul 22, 1997, the legislature of British Columbia passed Bill 31, recognizing same- sex domestic partners as spouses. Xtra West reported that "close to 500 pieces of legislation already on the books will be re- examined to ensure equality for lesbians and gay in family and spousal benefits, rights and responsibilities."
Xtra reported on Sep 11, 1997 an order by the Treasury Board (no date given) that in dealing with its own employees the federal government ignore the words "of the opposite sex" in the definition of "common- law spouse." In a case before the Ontario Court of Appeal in late Oct 1997, the Canadian Union of Public Employees challenged the opposite- sex definition of "spouse" in the federal Income Tax Act. The court has yet to rule on the case.
(2) likewise homosexuals are unable to partake of the benefits of public housing;
The right to accommodation without discrimination, in both public and private housing, is specifically covered in provincial human rights codes.
The details: None. I did not track stories on provincial human rights efforts -- there being far too many. The bottom line: The Equality Rights section of the Canadian Charter of Rights and Freedoms is assume to prohibit discrimination based on sexual orientation even where local human rights codes do not list it as a specific ground -- though a 1996 Alberta court ruling has called that assumption into question.
(3) they are brought up under an education system which either through commission or ommission [sic] fosters both a narrow and prejudicial view of homosexuality;
Education is a provincial and municipal responsibility. A few of the many battles to affect education as it relates to sexuality, and to improve the lot of lesbian and gay students, are noted in Victories and defeats: A gay and lesbian chronology 1964 - 1982.
The details: None recorded. The bottom line: Still an ongoing battle.
(4) again owing to the fact that homosexuals cannot enter into legally recognized marriages, they are not permitted to adopt children except under the most unusual circumstances. (Although we recognize that adoption is an area of provincial jurisdiction, we feel that this does not completely remove all responsibility from the federal government);
Like child custody, adoption was addressed mostly in court decisions and provincial laws. A May 1995 Ontario Family Court ruling affirmed the right of lesbian partners to be adoptive parents of each other's children. In a Nov 1996 revision to the British Columbia Adoption Act, gay and lesbian couples were allowed to adopt; previously a lesbian or gay man could adopt only as a single parent.
Sexual Orientation and Canadian Law, 1996, says there are no laws prohibiting gay men or lesbians, per se, from adopting, but notes that in some provinces two people who want to adopt as a couple must be legally married or "free to marry" each other -- effectively excluding same- sex couples.
The details: None other than the above. The bottom line: So far, this is it.
(Note that, despite mention of marriage here and in point (1) above, the gay movement in Canada never made legal recognition of same- sex marriages a primary concern. Many early liberationists found that cause far too "accomodationist" to warrant serious effort. Even in the 1990s, with gay marriage a media rage in the U.S. and partnership rights still a major issue in Canada, few here advocate legal marriage as the best route to recognition of the rights and obligations of personal relationships -- even, perhaps, for heterosexuals.)
(5) too often in the private sector, once an individual's homosexuality has become know, he or she is discriminated against in employment, and exploited by unscrupulous landlords;
As in point (2) above, discrimination in private sector employment and accommodation is prohibited by human rights codes.
The details: None recorded. The bottom line: Same as for point (2).
(6) in known places frequented by homosexuals or in places where they gather, both direct and subtle harassment by police officers is too often commonplace;
The RCMP is the only police force directly accountable to the federal government, and the only one for which I tracked stories in What we got: The details. But over the years The Body Politic and Xtra carried hundreds of reports on local police harassment -- surveillance and entrapment in parks and washrooms; bar and bath raids; infiltration and disruption of gay demos; and much more.
In fact, by the late 1970s resistance to police power was seen to be a more pressing concern than that old movement standard, "sexual orientation in the human rights code." Some major stories are noted in Victories and defeats: A gay and lesbian chronology 1964 - 1982. All police action was, of course, rooted in (highly selective) use of various provisions of the Criminal Code, dealt with above.
(7) since sexuality is not covered under the Canadian Bill of Rights, homosexuals are excluded from protections which are guaranteed to other minority groups such as those of race, religion, or national origin.
The Canadian Bill of Rights, enacted by the Diefenbaker government in 1960, was a regular act of Parliament, not part of constitutional law. It was binding only on the federal government and federally regulated corporations -- so it had limited impact. Not much attention was paid to it after passage of the Canadian Human Rights Act in 1977 -- though that Act was similarly limited. True constitutional human rights protection came only with the Canadian Charter of Rights and Freedoms, 1982 (in effect Apr 17, 1985).
For both -- and for relevant details and bottom line -- see Federal human rights protection below.
We Demand wrapped up this omnibus demand with the follwing note:
"While the list could go on (for example, the condition of homosexuals in prisons) the point should be by now sufficiently clear that, as a group, homosexuals are 'second class citizens' in a democratic society which purports to recognize only one class of citizenship based on equality."
Back to List of sections
Federal human rights protection
The Canadian Human Rights Act and -- in particular --
the Canadian Charter of Rights and Freedoms
10. All public officials and law enforcement agents to employ the full force of their office to bring about changes in the negative attitudes and de facto expressions of discrimination and prejudice against homosexuals.
This final demand concluded with a call to "all government officials to publicly support an amendment to Part 1 Section 1 of the Canadian Bill of Rights" to include "sexuality". (Note: not "sexual orientation" -- a term never used anywhere in We Demand.)
So, only near its end did this manifesto of the Canadian gay movement in 1971 touch on what became, for years to come, that movement's primary political goal: the prevention -- in law -- of discrimination against gay people, through amendment of human rights legislation.
As noted often above, these battles were fought mostly in provincial arenas and are not covered here in any detail. For the record (and at the risk of reducing many long, hard struggles to a simple list), here's when legislated protection against discrimination based on sexual orientation was achieved in various provinces and territories:
Quebec: Dec 1977; Ontario: Dec 1986; Yukon: Feb 1987; Manitoba: Jul 1987; Nova Scotia: Jun 1991; New Brunswick: May 1992; Saskatchewan: Jul 1992; British Columbia: Jul 1992.
The situation elsewhere is more complex. Sexual orientation was "read into" the Alberta Individual Rights Protection Act by a court decision in Apr 1994, in the case of Delwin Vriend, a chemistry instructor fired from a Christian college for being gay. But the province appealed to a higher court and won, in Feb 1996, reading sexual orientation out of the Act.
[Postscript: On Apr 2, 1998 the Supreme Court of Canada, ruling in the Vriend case, declared that Alberta's human rights law must be brought in line with the Charter of Rights (see below), and therefore must be read to cover sexual orientation as a prohibited ground of discrimination. Alberta's Conservative government considered invoking the "notwithstanding" clause of the Charter, allowing it to ignore the ruling, but in the end did not.]
In Aug 1995 the Supreme Court of Newfoundland "read in" protection for gay people -- and the government let the ruling stand. Prince Edward Island and the Northwest Territories have not amended their laws -- but human rights agencies in both places have said they will, nonetheless, hear discimination cases based on sexual orientation.
All this "reading in" is based on (and "reading out" potentially challenged by) what is now the supreme human rights law of the land: the Canadian Charter of Rights and Freedoms. Entrenched in Canada's constitution in 1982 and effective Apr 17, 1985, the Charter did not then (and still does not) specifically list sexual orientation as a prohibit ground of discrimination. How it came to protect us anyway -- and how gay men and lesbians won even more specific rights in federal law -- is quite a long story (and, thankfully, the last long story in this document).
One note: keep in mind below the distinction between the Canadian Charter of Rights and Freedoms and the Canadian Human Rights Act (confusing as it may be). The latter is a regular act of Parliament, binding only on the federal government, its agencies, and federally incorporated businesses (banks, airlines, railroads, etc.). The Charter is part of the Constitution of Canada, binding on everybody (more or less; see notes on the Charter in the May 85 entry in What we got: The details / Federal human rights protection).
The 1960 Bill of Rights was never amended as proposed in We Demand in 1971 -- but within a few years that was irrelevant. By 1974 the government had proposed new federal human rights legislation, with a new commission to enforce it. Gay groups lobbied for three years to make sure the new law would includes protections based on sexual orientation, but -- to no one's surprise -- when it was passed in Jun 1977, it did not.
The head of the newly formed Canadian Human Rights Commission, Gordon Fairweather, consistently fought this "human rights omission," urging the gay movement to keep pushing for amendment of the Canadian Human Rights Act. In 1980, two members of Parliament introduced private member's bills to amend the Act. One of them, Svend Robinson of the NDP, would do so repeatedly -- before and after he came out publicly in 1988. None would ever pass.
By 1981 attention shifted to the proposed new Charter of Rights. This was to be part of Canada's new constitution, "patriated" from Britain in 1982. Initial efforts to have its Equality Rights provision (Section 15) include sexual orientation failed. But the final wording of Section 15 turned out to be significant nonetheless -- by virtue of two small word, shown in italic below:
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.
The addition of "in particular" (to the Charter's third draft) meant that the list of prohibited grounds of discrimination was not exclusive. And on those two words, all future human rights protection for lesbians and gay men came to depend.
The Charter came into effect on Apr 17, 1985. The federal government struck a Parliamentary committee to study its effects on existing laws, touring the country in the process and hearing from lots of lesbian and gay groups -- as well as many non-gay ones supporting legal protection for gay people. The committee's Oct 25, 1985 report concluded that "the prohibited grounds of discrimination enumerated in Section 15 are simply illustrative and do not exhaust the forms of discrimination" prohibited by the Charter. Unanimously, the all- party committee recommended that "sexual orientation" be assumed part of Section 15.
On Mar 4, 1986, justice minister John Crobsie stood in Commons to declare that the Conservative government would "take whatever measures are necessary to ensure that sexual orientation is a prohibited ground of discrimination in relation to all areas of federal jurisdiction." Svend Robinson said: "Don't hold your breath!" The Canadian Human Right Act still stood unamended and would stay that way -- until the courts got into the act.
In Nov 1989, in a case brought by two gay men, one in prison, seeking "family" visitation rights, the Federal Court of Canada ruled that the Charter's Section 15 must be read to include sexual orientation as an "analogous ground." In Sep 1991 the Ontario Court, General Division, ruling on the case of a gay man harassed out of the Armed Forces, went even further: because the Canadian Human Rights Act did not include sexual orientation, as the Charter now said it must, the whole thing was unconstitutional. If the federal government didn't amend the Act within six months, it would be struck down. The government appealed.
In Aug 1992 the Ontario Court of Appeal upheld the Sep 1991 ruling -- but didn't strike down the Canadian Human Rights Act. Instead, it ruled that sexual orientation must be "read into" it. The government had until Oct 30 to appeal yet again -- but did not. On Oct 31, 1992, The Globe and Mail reported that "homosexuals will now have an undisputed right to use the Human Rights Act to protect themselves from discrimination."
In May 1995, in the Egan & Nesbit old-age pension case, the Supreme Court of Canada put the icing on the cake: all nine justices confirmed that Section 15 of the Charter of Rights must indeed be read to include sexual orientation.
(All these influential court cases are the same ones noted in Other rights in law, above. See more on them and their protagonists in the related page of What we got: The details.)
But the Canadian Human Rights Act was still not amended -- merely symbolic as that move might now be. On Apr 29, 1996, justice minister Allan Rock introduced a bill to do so -- having promised it 485 days before. Bill C-33 passed the House of Commons May 9, 1996, the Senate on Jun 5 and, on Royal Assent, at last became law by the end of that month.
The details
See 63 stories (5,300 words), 1974 to 1996, in the page on Federal human rights protection. Also there: more on the Canadian Charter of Rights and Freedoms (noting provisions that potentially limit rights) and a link to the Charter's full text.
The bottom line
Demand met (if in amendment to the Canadian Human Rights Act, not the Bill of Rights) 24 years and 10 months after We Demand. But, more importantly, the Charter of Rights and Freedoms now protects lesbian and gay men from discrimination all across Canada.
And with that, you can bet this story will continue.
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[We Demand] [What we got: The details]
[Victories and defeats: A gay and lesbian chronology 1964 - 1982]