Legal Cases in Canada | Egale Canada's MyGSA.ca

Legal Cases regarding Homophobia in Canadian Schools

Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825

This was a case that went to the Supreme Court of Canada in 1996. The Supreme Court found that “A school board has a duty to maintain a positive school environment for all persons served by it and it must be ever vigilant of anything that might interfere with this duty” (para. 50) and that the freedom of expression of teachers can be restricted if it interferes with the establishment of a positive educational environment (para. 2).

Kempling v. The British Columbia College of Teachers, 2005 BCCA 327

In this case, a teacher at a public school wrote negative letters against the LGBT community to a newspaper. He was cited for misconduct and was found guilty of conduct unbecoming of a BCCT teacher in front of an administrative tribunal. In 2005, the British Columbia Court of Appeal sided with the administrative tribunal’s decision and upheld Kempling’s suspension. His appeal was dismissed.

School District No. 44 (North Vancouver) v. Jubran, 2005 BCCA 201

This case went in front of the British Columbia Court of Appeal in 2005 and the case was found in favour of Jubran. Jubran was harassed at school because of his perceived sexual orientation. The Court found that a school has a duty to provide an environment that is free from harassment for all students.

Lindsay Jane Willow v. Halifax Regional School Board, Dr. Gordon Young and John Orlando, 2006 Nova Scotia Human Rights Commission

This case went in front of the Nova Scotia Human Rights Commission and they cited Jubran in their decision. Willow had been accused of inappropriate sexual behaviour with a female student by two other teachers at the school, who believed she was a lesbian and made the accusation as a result. The Human Rights Tribunal found that the school board did not act properly and owed the teacher a standard of care.

Trans Legal Cases

There seem to be very few legal cases involving trans matters, especially cases that have gone before provincial courts of appeal or the Supreme Court of Canada. There are few explicit legal protections for trans people: unfortunately, freedom from discrimination based on either gender identity or gender expression is not enumerated as a prohibited grounds in the Canadian Charter of Rights and Freedoms or the Canadian Human Rights Act, and trans people are also not listed in the Criminal Code as either an identifiable group or a group specifically protected from hate crimes.

Recently, there have been some trans cases from provincial and federal Human Rights Tribunals, however, and most provinces and territories read gender identity into the protected grounds of sex or gender. For example, the Ontario Human Rights Tribunal case Forrester v. Peel (Regional Municipality) Police Services Board (No. 2), 2006 HRTO 13 at paras. 404-415 established that transsexuality falls under the ground of sex in the Ontario Human Rights Code (the Code). Under the Code, this includes transsexual, transgender, and intersex persons, as well as cross-dressers and other people whose gender identity or gender expression is, or is seen to be, different from their birth-identified sex. Because gender identity is not explicitly mentioned as a prohibited ground for discrimination, however, cases involving these matters are dealt with on a case-by-case basis. Consequently, the extent and ways in which they are taken up is at the discretion of those involved in the individual tribunal.

Nixon v. Vancouver Rape Relief (VRR) was the first case involving a human rights complaint by a trans-identified person to go before a provincial court of appeal. Kimberly Nixon, a victim of violence by a male partner, had received support from the Battered Women’s Support Services (BWSS). In 1995, she felt that she was ready to make a contribution back to the feminist anti-violence movement and she started volunteer training at VRR. At the second session, a trainer called her aside and asked Nixon about her gender identity. When Nixon revealed that she was a transwoman, the trainer asked her to leave the session. Nixon then filed a human rights complaint against VRR. Although the BC Court of Appeal held that the behaviour of the VRR in excluding transwomen constituted discrimination under the Human Rights Code, it nevertheless ruled that s.41 of the Code permits a women’s service organization to discriminate against a sub-group of women, namely transsexual women in this case.

The BC Court of Appeal is the highest level of court in Canada ever to rule on a case of discrimination against a transperson and this decision is a set-back for trans equality rights. What it does do, however, is reinforce the need for the explicit inclusion of transpeople in human rights legislation in federal law and regionally across the country, as the Northwest Territories did in 2002.

On October 31, 2002, the Northwest Territories adopted Bill 1, adding gender identity to its Human Rights Act, becoming the first jurisdiction in Canada explicitly to prohibit discrimination against transpeople:

“5. (1) For the purposes of this Act, the prohibited grounds of discrimination are race, colour, ancestry, nationality, ethnic origin, place of origin, creed, religion, age, disability, sex, sexual orientation, gender identity, marital status, family status, family affiliation, political belief, political association, social condition and a conviction for which a pardon has been granted.”

Egale partnered with the Canadian Professional Association for Transgender Health (CPATH) in support of MP Bill Siksay’s Private Member’s Bill (C-389). The Bill seeks to amend the Canadian Human Rights Act and the Criminal Code to include gender identity and gender expression as prohibited grounds of discrimination. It passed second reading in the House of Commons on June 9, 2010. Egale will continue to monitor and support the passage of this Bill.