Press Release

November 3, 1999

Separate Is Unequal! No Separate Definition for Those in Same-Sex Relationships

Doing the Right Thing

EGALE understands that the federal government is currently consideringthe introduction of omnibus legislation to treat those in same-sexrelationships equally, and to bring its laws into conformity with theCharter of Rights. EGALE welcomes this initiative. At the same time,EGALE strenuously opposes any attempt to create a separate regime forthose in same-sex relationships by using terminology that would relegateour relationships to an inferior status.

Separate is not Equal

Creating separate relationship classes for gays and lesbians would befundamentally offensive because it maintains a discriminatorydistinction in terminology, and suggests that the relationships of someCanadians are less worthy of respect than others. So-called "separatebut equal" regimes were used in the United States to maintain racialsegregation and were ultimately recognized as unconstitutional anddiscriminatory. Canadian courts have held that creating separatecategories for those in same-sex relationships is a form of "separatebut equal" regime, and offends human rights legislation.

Inappropriate to invite further legal challenges

It would be an irresponsible use of public funds for the Government toreplace one discriminatory regime with another. Any such legislationwould inevitably be challenged in the Courts, and the Government wouldfind itself mired in the same legal challenges it is facing now.Moreover, such a Bill could well fail in the House of Commons,particularly if it were subject to a free vote, since it would beattacked both by those supportive of equal rights and by those opposedto recognizing same-sex relationships. A failed legislative battle overa piece of discriminatory legislation would be politically embarrassingin the extreme for the Government.

The Law

The Federal Court has already struck down an attempt by the federalgovernment to create a separate definition for those in same-sexrelationships. Dale Akerstrom, a member of EGALE’s Board of Directors,was involved in a challenge to a federal employee benefits plan whichcontained a separate provision for "same-sex partners", who wouldreceive the same benefits as "common law spouses". On August 14, 1998,the Federal Court ruled that "this scheme remains discriminatory",approving the position that a separate definition is "a loathsomeartifact of the similarly-situated approach" and an "appalling doctrine[which] must not be resuscitated in Canada 40 years after itsmuch-heralded death in the United States."

It’s about human dignity

Similarly, the Supreme Court of Canada has ruled in Egan v. Canada,Vriend v. Alberta and M v. H & Ontario that constitutional equality rightsare violated when human dignity is undermined "even though no economicloss is occasioned". The Supreme Court of Canada affirmed that "thisprinciple has been recognized in the cases of the U.S. Supreme Courtdealing with the segregation of races."

What are the alternatives?

The Governments of Quebec and British Columbia have simply extended thedefinition of "spouse" in numerous laws—and the sky has not fallen.The Federal Government adopted an alternative approach in amendments tothe Public Service Superannuation Act earlier this year, replacing theterm "surviving spouse" with the more generic term "survivor", applyingthe same terminology to same-sex and opposite-sex relationships.

"Equal rights not special rights"

All we ask is to be treated equally—in substance and in form. Let’snot create separate categories for separate classes of Canadians.Courts, Governments and the Canadian public together accept that thetime to act is now. We urge the Government to do it—and do it right.

Excerpts from Attorney General of Canada v. Akerstrom & Moore, a federalcourt decision ruling that creating a separate definition for those insame-sex relationships remains discriminatory:

Summary

In Attorney General of Canada v. Moore & Akerstrom (T-1677-96), JudgeMacKay of the Federal Court (Trial Division) ruled on August 14, 1998that the Federal Government had violated the Canadian Human Rights Actby attempting to set up a separate provision for "same-sex partners",who would receive the same benefits as "common law spouses".

Federal court decision

The Federal Court ruled (at pp 34-35, 39-40) that "such an approach isdiscriminatory within the meaning of the Canadian Human Rights Act. Inmy view, the scheme proposed by the employer establishes a regime of ‘separate but equal,’ one that distinguishes between relationships onthe basis of the sexual orientation of the participants. Thus, thisscheme remains discriminatory.... In my view, on the facts of the case at bar, the employer’s separatedefinition of same-sex partners, made without explanation, reinforces adistinction drawn between same-sex and heterosexual couples, one madetypically on discriminatory grounds. Such a distinction [relies] onclassifications reflecting pre-existing biases without a plausiblenon-discriminatory rationale ... [I]t is no more appropriate for theemployer in this case to have established a separate definition forpersons in same-sex relationships than it would be for an employer tocreate separate definitions for relationships of persons based on theirrace, colour or ethnicity, or any other prohibited ground enumerated inthe Act."

The Judge also cited with approval the comments of Linden J, in dissent,of the Federal Court of Appeal in Egan v. Canada, in which Linden J.referred to the "separate but equal doctrine" as:

"a loathsome artifactof the similarly-situated approach. One cannot avoid the conclusionthat offering benefits to gay and lesbian partners under a differentscheme from heterosexual partners is a version of the separate but equaldoctrine. That appalling doctrine must not be resuscitated in Canada 40years after its much-heralded death in the United States."

Excerpt from majority judgment of the Supreme Court of Canada in Egan vCanada (at para. 161):

"The law confers a significant benefit by providing state recognition ofthe legitimacy of a particular status. The denial of that recognitionmay have a serious detrimental effect upon the sense of self-worth anddignity of members of a group because it stigmatizes them even though noeconomic loss is occasioned. This principle has been recognized in thecases of the U.S. Supreme Court dealing with the segregation of races."

For further information:
John Fisher, Executive Director of EGALE,
Email: john@egale.ca
EGALE National Office in Ottawa: (613) 230-1043

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