The Canadian Charter of Rights and Freedoms: Is Sexual Orientation Discrimination Sex Discrimination?

Abstract

This chapter argues that sexual orientation is already implicitly included in an enumerated Section 15(1) ground of the Canadian Charter of Rights and Freedoms, that is, ‘sex’, because almost every case of sexual orientation discrimination can be analysed as one of sex discrimination. Could sexual orientation be included in any other grounds? Plaintiffs using human rights legislation to challenge sexual orientation discrimination (where sexual orientation was not a listed ground) have also invoked such grounds as ‘marital status’ or ‘family status’. Much discrimination against same-sex couples in Canada is arguably not based on the marital status of the couple because the benefit is provided to unmarried opposite-sex couples. It can certainly be argued that the concept of discrimination based on ‘family status’ can be applied to discrimination against same-sex couples. But the exclusion of same-sex couples from a definition of ‘family’ that includes unmarried opposite-sex couples without children can more easily be analysed as discrimination based on ‘sexual orientation’ or ‘sex’ than as discrimination based on the vague ground of ‘family status’.