The Code states that it is public policy in Ontario to recognize the inherent dignity and worth of every person and to provide for equal rights and opportunities without discrimination. The provisions of the Code are aimed at creating a climate of understanding and mutual respect for the dignity and worth of each person, so that each person feels a part of the community and feels able to contribute to the community.
Every person in Ontario has a right to be free from discrimination and harassment relating to sexual orientation in the all the social areas protected by the Code. These include employment, services, goods and facilities, housing accommodation, contracts and membership in trade unions and vocational associations.
1.1 Sexual orientation
“Sexual orientation” is not specifically defined in the Code. However, the OHRC recognizes that sexual orientation is more than simply a “status” that an individual possesses; it is an immutable personal characteristic that forms part of an individual’s core identity. Sexual orientation encompasses the range of human sexuality from gay and lesbian to bisexual and heterosexual orientations, including intimate emotional and romantic attachments and relationships. It is most commonly gay and lesbian people who make claims of discrimination on the basis of sexual orientation. However, the protection of the Code extends to all individuals who are denied equal treatment because of sexual orientation. The Code also prohibits discrimination because of gender identity, such as that faced by transsexual, transgender and intersex persons. These protections are extended on the basis of sex rather than sexual orientation, and are discussed in the OHRC’s Policy on discrimination and harassment because of gender identity.
Courts at all levels have recognized the past and ongoing disadvantage suffered by lesbian, bisexual and gay people. In Egan v. Canada, the Supreme Court noted:
The historic disadvantage suffered by homosexual persons has been widely recognized and documented. Public harassment and verbal abuse of homosexual individuals is not uncommon. Homosexual women and men have been the victims of crimes of violence directed at them specifically because of their sexual orientation. They have been discriminated against in their employment and their access to services.
They have been excluded from some aspects of public life solely because of their sexual orientation. The stigmatization of homosexual persons and the hatred which some members of the public have expressed towards them has forced many homosexuals to conceal their orientation. This imposes its own associated costs in the work place, the community and in private lif.
While our province’s statutes prohibit discrimination and harassment on the basis of sexual orientation, unfair treatment based in homophobia and heterosexism is widespread and even socially accepted among many people. The Code requires that the OHRC and all organizations under its mandate take steps to prevent and appropriately respond to this unfair treatment, and develop a culture of rights that
is inclusive of lesbian, bisexual and gay people.
1.2 Homophobia and heterosexism
“Homophobia” and “heterosexism” are terms used to describe prejudice relating to sexual orientation. They refer to the assumption that heterosexuality is superior and preferable, and is the only right, normal or moral expression of sexuality. Both may also be the basis for negative treatment of gay, lesbian or bisexual people based on sexual orientation. Although these terms are closely related and overlapping, they also can emphasize different aspects and expressions of prejudice, and can therefore be helpful in identifying and addressing different aspects of the discrimination and harassment experienced by lesbian, bisexual or gay people.
“Homophobia” is often defined as the irrational aversion to, or fear or hatred of gay, lesbian or bisexual people and communities, or to behaviours stereotyped as “homosexual.” It is commonly used to signify a hostile psychological state in the context of overt discrimination, harassmetn or violence against gay, lesbian or bisexual people.
“Heterosexism” refers to the assumption that everyone is heterosexual. This definition is often used in the context of discrimination against bisexual, lesbian and gay people that is less overt, and which may be unintentional and unrecognized by the person or organization responsible for the discrimination. It can also be useful in understanding and identifying some kinds of institutional or societal bias, although homophobia may also be at play.
1.3 A further word about terminology
Terminology is fluid, and what is considered appropriate tends to evolve over time. Moreover, people within a group may prefer different terms to describe themselves. However, it is useful to identify terms that are considered most appropriate to avoid compounding a person’s experience of prejudice, harassment, or discrimination. It is generally best to use terms by which individuals self-identify, such as “bisexual,” “gay,” “lesbian” and “two-spirit.”
In contemporary usage, “gay” usually refers to men, although it is also used as a general term instead of “homosexual.” Some women may identify as “gay,” but may prefer the term “lesbian,” which refers specifically to women. Aboriginal lesbian, bisexual, or gay people may describe themselves as “two-spirit” or “two-spirited.” Individuals may use other terms to describe their sexual orientation; however “gay,” “lesbian,” and “bisexual” are usually accepted as neutral, general terms.
The term “homosexual” was popularized through medical usage, and has often been used to denigrate and stereotype lesbian and gay people, as well as a range of behaviours and practices ascribed to them. It is sometimes used as a general term, such as in legal documents and medical texts, and some individuals may identify as “homosexual.” However, many lesbian and gay people may perceive the term to be clinical or offensive, and bisexual people may also perceive it as exclusionary. It is therefore often better to avoid using the term “homosexual,” particularly to refer to an individual, and to use instead the terms by which people self-identify, such as “bisexual,” “lesbian” and “gay.”
1.4 The purpose and scope of the policy
This policy sets out the position of the OHRC with respect to sexual orientation at the time of publication, and replaces the OHRC’s earlier policy, approved in January 2000. The policy was developed based on extensive research and community consultations, and was updated in 2006 to reflect the significant legal and legislative changes that took place after the initial document was approved.
This policy deals primarily with issues that could form the basis of a human rights claim of discrimination. The policy is therefore bounded by the provisions of the Code and Canada’s legal framework for analyzing discrimination. At the same time, the policy interprets the protections in the Code in a broad and purposive manner. This is consistent with the principle that the quasi-constitutional status of the Code requires that it be given a liberal interpretation that best ensures its anti-discriminatory goals are attained.
OHRC policy statements contribute to creating a culture of human rights in Ontario. This policy is intended to help the public understand Code protections against discrimination and harassment because of sexual orientation. It is also meant to assist individuals, employers, organizations, providers of services and housing accommodation, and policy makers in understanding their responsibilities and acting appropriately to ensure compliance with the Code.
2. International protections
Several international bodies and covenants recognize the rights of gay, lesbian and bisexual people, and the need for protection against discrimination and violence based on sexual orientation.
The United Nations International Covenant on Civil and Political Rights (1966) (the Covenant) is monitored by the United Nations Human Rights Committee (UNHRC). The Covenant does not specifically list sexual orientation as a protected ground; however, in 1994, the UNHRC held that laws criminalizing consensual homosexual conduct violate protections for privacy (article 17) and against discrimination (articles 2 and 26), and have since affirmed the rights of same-sex couples. A number of UN bodies and documents explicitly list sexual orientation in non-discrimination and protections clauses.
The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) has been interpreted to extend protections on the basis of sexual orientation. Although the ECHR does not explicitly include sexual orientation in its prohibition on discrimination (Article 14), the European Court of Human Rights has ruled that discrimination and privacy (Article 8) protections extend to sexual orientation and the family relationships of lesbian and gay people. The European Union (EU) has also established important protections based on sexual orientation.
3. The Canadian context
3.1 Sexual orientation in provincial and federal human rights protections
The OHRC first recommended in 1977 that the Code should extend protection from discrimination on the basis of sexual orientation. The Ontario legislature amended the Code to add the ground of sexual orientation in 1986. In 1996, the OHRC initiated a community consultation process, resulting in an options paper and increased efforts in education, enforcement, complaint processing and litigation relating to sexual orientation. Out of this process, the OHRC developed the Policy on Discrimination and Harassment because of Sexual Orientation, approved in January 2000.
On June 20, 1996, section 3(1) of the Canadian Human Rights Act (CHRA) was amended to include sexual orientation as a protected ground. Administered by the Canadian Human Rights Commission, the CHRA guarantees the right to equality, equal opportunity, fair treatment and an environment free from discrimination in employment and the provision of goods, services, facilities or accommodation within federal jurisdiction.
The ground of sexual orientation is not named in the anti-discrimination section of the Canadian Charter of Rights and Freedoms (the Charter: section 15). However, the courts have accepted that section 15 is to be interpreted broadly, and that “analogous” grounds, i.e., personal characteristics other than those specifically listed, may also form the basis for discrimination against a group or individual. In 1995, in Egan v. Canada, noting the significant historical and ongoing disadvantage faced by gay and lesbian people, the Supreme Court unanimously found that sexual orientation was an analogous ground similar to the other grounds in section 15.
The Supreme Court subsequently found, in Vriend v. Alberta (1998), that the Alberta government’s assertion that human rights protection was being introduced incrementally did not justify the failure to include protection for lesbians and gay men in the province’s human rights legislation, and that the omission of this protection is not reasonable within the meaning of section 1 of the Charter. The Court therefore required that sexual orientation be “read into” the offending legislation, and that Alberta extend protection from discrimination based on sexual orientation. All jurisdictions in Canada now offer protections from discrimination on the basis of sexual orientation in their human rights legislation.
3.2 Recognition of same-sex relationships
Despite legal protections on the basis of sexual orientation, same-sex couples have been subject to specific kinds of discrimination because their relationships were not recognized under the law. Statutes have traditionally used the concept of “spouse” as the basis for allocating rights, powers, benefits and responsibilities to partners, and “spouse” has been implicitly or explicitly defined in heterosexual terms. This was reflected in many Ontario statutes, including the Code; however, there have been significant changes in legislation and case law on these matters in recent years.
Same-sex relationships began to gain important recognition through cases involving family law, and denial of spousal survivor, pension, health and employment benefits. In these cases, definitions of spouse and marital status that were limited to opposite-sex couples were found by human rights tribunals to be discriminatory and to constitute denial of the equality rights in section 15 of the Charter. In M. v. H, (1999), the Supreme Court of Canada found that opposite-sex definition of “spouse” in section 29 of Ontario’s Family Law Act (FLA), which precluded “M” from making an application for support from her former same-sex partner of 12 years, violated section 15 of the Charter:
The societal significance of the benefit conferred by the statute cannot be overemphasized. The exclusion of same-sex partners from the benefits of s. 29 of the FLA promotes the view that M., and individuals in same-sex relationships generally, are less worthy of recognition and protection. It implies that they are judged to be incapable of forming intimate relationships of economic interdependence as compared to opposite-sex couples, without regard to their actual circumstances.
In response, the Ontario legislature amended the FLA and a number of other statutes so that they applied to same-sex partners, adding “same-sex partnership status” as a prohibited ground of discrimination under the Code.
While these measures were important in extending greater equality rights, there were still many distinctions in law that had discriminatory effects on gay, lesbian and bisexual people and their families. Some of these distinctions related to access to the actual status of marriage. While opposite-sex couples continued to have the choice to live “common-law” or to become married, those in same-sex couples were still denied this choice. Furthermore, the insistence on a separate category of same-sex partnership, instead of inclusive definitions of terms such as “marital status,” “family,” “spouse,” and “relative” reaffirmed discriminatory views and reinforced the stereotypes held by some, that same sex couples are not “real” families.
This situation shifted significantly on June 10, 2003, when the Ontario Court of Appeal released its decision in Halpern v. Attorney General of Canada (“Halpern”). In its decision, the Court found that the common law definition limiting marriage to persons of the opposite-sex breached the equality rights of same-sex couples under the Charter. The Court reformulated the definition of marriage as “the voluntary union for life of two persons to the exclusion of all others,” effective immediately. Following this decision, the Government of Canada announced that it would not pursue appeals in Halpern and similar cases in other provinces. As a result of Halpern, Ontario became the first jurisdiction in Canada in which same-sex couples could legally marry. Many other jurisdictions followed suit, and the federal government began a process of addressing the matter.
On March 9, 2005, the Ontario Legislature passed legislation amending a broad range of provincial statutes, changing definitions of spouse and marriage and removing other heterosexist bias. Changes to the Code included removal of the ground of “same-sex partnership,” which was no longer required due to the newly inclusive, gender-neutral definitions of “marital status” and “spouse.”
On July 20, 2005, the federal Civil Marriage Act was signed into law, legalizing same-sex marriage across Canada by defining civil marriage as “the lawful union of two persons to the exclusion of all others.” Amendments were made to federal legislation most directly affected by the Civil Marriage Act, replacing opposite-sex definitions of “spouse” and other language with gender-neutral terms. Additional barriers were removed by changing legislative references to “natural” parents and “blood” or adoptive relationships, to focus instead on “legal” parent-child and familial relationships.
3.3 A note on balancing rights
A question that has arisen in a number of cases alleging discrimination based on sexual orientation is that of when parties make competing rights claims. It should be noted that the extension of rights to one group does not itself diminish the rights of another group, and it must be established whether there is indeed a genuine conflict. If so, rights claims have been balanced based on the particulars of each case, and the understanding that no right is absolute. Case law has indicated that services normally offered to the public must be offered in a non-discriminatory manner, and that human rights protections are to be interpreted broadly, while defences for discrimination are interpreted narrowly.
 For example, Egan v. Canada,  2 S.C.R. 513; Vriend v. Alberta,  1 S.C.R. 493; Attorney General of Ontario v. M. and H.,  2 S.C.R.; Halpern v. Canada (Attorney General) (2003), 65 O.R. (3d) 161(C.A.).
Egan v. Canada,  2 S.C.R. 513 at para. 173 per Cory, J.
 Aboriginal people who are transsexual, transgender or intersex may also refer to themselves and their gender identity as “two-spirited”.
Toonen v. Australia, 1994: Views of the Human Rights Committee under article 5, paragraph 4, of the optional Protocol to the International Covenant on Civil and Political Rights, UNHRCOR, 50th Sess., Communication No. 488 (1994).
Young v. Australia, 2003: Views of the Human Rights Committee under the optional Protocol to the International Covenant on Civil and Political Rights, UNHRCOR, 78th Sess., Communication No. 941 (2003).
 The United Nations Committee on Economic, Social and Cultural Rights has specified that, as it threatens health, discrimination on the basis of sexual orientation is a violation of rights under Article 2.2 of the International Covenant on Economic, Social and Cultural Rights (General Comment No. 14 (2000).
The United Nations Commission on Human Rights adopted a resolution on extrajudicial, summary or arbitrary executions in April 2002 calling on governments to investigate “promptly and thoroughly cases of ... all killings committed for any discriminatory reason including sexual orientation... and to bring those responsible to justice before a competent, independent and impartial judiciary and to ensure that such killings are neither condoned nor sanctioned by government officials or personnel”.
The United Nations High Commissioner for Refugees (UNHCR) also extends protection based on sexual orientation indicating that gay and lesbian persons facing attack, inhumane treatment, or serious discrimination, and whose governments are unable or unwilling to protect them, should be recognized as refugees: UNHCR, Protecting Refugees: Questions & Answers (Geneva, UNHCR, 1996).
Other United Nations conventions may provide protections to gay, lesbian or bisexual persons although sexual orientation may not be specifically mentioned. For example, Convention against Torture and Other Cruel, Inhuman or Degrading Punishment (1984), Convention on the Elimination of All Forms of Discrimination Against Women (1981), and Convention on the Rights of the Child (1989) (article 2).
 Criminal laws against consensual sexual relations violate the right to privacy under Article 8 (Dudgeon v United Kingdom (1981), 3 E.H.R.R. 40; Norris v Ireland (1991), 13 E.H.R.R. 186), and that such laws must be fully repealed (Modinos v Cyprus (1993),16 E.H.R.R. 485). The Court has similarly found that bans on military service (Lustig-Prean and Beckett v UK: Lustig-Prean and Beckett v United Kingdom (1999),  29 E.H.R.R. 548) and denial of custody (Salgueiro da Silva Mouta v Portugal (1999),  31 E.H.R.R. 47) based on sexual orientation violate Article 8. In the latter case, the Court also affirmed that Article 14 protection against discrimination is to be interpreted as including sexual orientation. Article 14 has subsequently been used to affirm the family rights of same-sex couples (Karner v Austria (2003),  38 E.H.R.R. 24), and to find that differing ages of consent for heterosexual and homosexual relations are discriminatory (L. v Austria (2003), 36 E.H.R.R. 55; S.L. v Austria (2003), 37 E.H.R.R. 39).
 The Treaty of Amsterdam, which came into effect on May 1, 1999, establishes human rights provisions on a number of grounds and empowers the EU to take appropriate action to combat discrimination.
In December 2000 the Council of the European Union issued a Directive on equal treatment in employment and occupation, barring employment discrimination based on sexual orientation and other grounds. The directive is binding on member states and national implementation is a condition for states wishing to join the EU.
The Charter of Fundamental Rights of the European Union, signed in December, 2000 by the Presidents of the European Parliament, the Council of the European Union and the European Commission, explicitly prohibits discrimination based on sexual orientation (Article 21 (1)).
Life Together, A Report on Human Rights in Ontario (Ontario Human Rights Commission, 1977).
Sexual Orientation Strategies, Options Paper (December 1996: Ontario Human Rights Commission, unpublished).
Constitution Act, 1982, Part I.
Andrews v. Law Society of British Columbia,  1 S.C.R 143.
Egan v. Canada,  2 S.C.R. 513.
Vriend v. Alberta,  1 S.C.R. 493.
Leshner v. Ontario (No. 2) (1992), 16 C.H.R.R. D/184 (Ont. Bd. Inq.), Dwyer and Simms v. Municipality of Metropolitan Toronto & Attorney General of Ontario Unreported decision, September 27, 1996, Ont. Bd. Inq.
 In Leshner v. Ontario (No. 2) (1992), 16 C.H.R.R. D/184 (Ont. Bd. Inq.), a human rights tribunal ordered the provincial government to "read down" the opposite-sex definition of marital status in the Code and to provide equivalent survivor benefits to its gay and lesbian employees through an arrangement outside of the existing pension plan.
In Attorney General of Ontario v. M. and H.,  2 S.C.R. 3 (“M. v. H”), the Supreme Court of Canada found that that the opposite-sex definition of “spouse” in section 29 of Ontario’s Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), which precluded “M” from making an application for support from her former same-sex partner of 12 years, constituted a denial of the equality rights in section 15 of the Charter. Writing for the majority, Cory J. stated:
The societal significance of the benefit conferred by the statute cannot be overemphasized. The exclusion of same-sex partners from the benefits of s. 29 of the FLA promotes the view that M., and individuals in same-sex relationships generally, are less worthy of recognition and protection. It implies that they are judged to be incapable of forming intimate relationships of economic interdependence as compared to opposite-sex couples, without regard to their actual circumstances (at para. 73).
Attorney General of Ontario v. M. and H.,  2 S.C.R. 3.
Family Law Act, R.S.O. 1990, c. F.3.
Attorney General of Ontario v. M. and H.,  2 S.C.R. 3 at para. 73, per Cory J.
 Letter from Letter from former Chief Commissioner Keith C. Norton, Q.C., B.A., LL.B to Hon. James Michael Flaherty, Attorney General of Ontario (Feb. 8, 2000) Toronto.
Halpern v. Canada (Attorney General) (2003), 65 O.R. (3d) 161(C.A.). This case combined two applications brought to the courts by several couples in Toronto and directly addressed the exclusion of same-sex couples from the institution of marriage. One application was brought in August 2000 by seven gay and lesbian couples whose requests for marriage licences had been held in abeyance by the clerk of the City of Toronto while she applied to the Court for directions. The other application was made by two couples who were issued marriage certificates by their minister in January 2001. Their marriages were solemnized by an ancient Christian tradition, called the publication of banns, which was lawful in Ontario; however, the Registrar-General refused to register the documents, citing an alleged federal prohibition against same-sex marriage.
 In an earlier decision, (EGALE Canada Inc. v. Canada (Attorney General) (2003), 225 D.L.R. (4th) 472 (B.C.C.A.), the British Columbia Court of Appeal had also found the definition of marriage unconstitutional and had amended the definition but had suspended the remedy until July 2004 to allow a legislative response. However, in light of the immediate effect of the Ontario decision and the fact that the federal government chose not to appeal it, on July 8, 2003, the BC Court changed its order to allow the reformulated definition of marriage to apply immediately.
Similarly, on March 19, 2004, the Quebec Court of Appeal upheld a lower court decision that declared the opposite-sex definition of marriage unconstitutional and lifted the delayed effect of the ruling so same-sex couples had the immediate right to marry in Quebec (Hendricks v. Canada (Attorney General) (2004), 238 D.L.R. (4th) 577 (Que.C.A.).
 For example: Dunbar v. Yukon Territory,  Y.J. No. 61, 2004 YKSC 54; Vogel v. Canada (Attorney General),  M.J. No. 418; Boutilier v. Nova Scotia (Attorney General),  N.S.J. No. 357; N.W. v. Canada (Attorney General),  S.J. No. 669, 2004 SKQB 434.
 In response to Halpern, in July of 2003, the federal Minister of Justice submitted a draft Bill to the Supreme Court of Canada for an opinion in a process known as a reference. The Bill defined civil marriage as “the lawful union of two persons to the exclusion of all others”. The Supreme Court rendered its opinion on December 9, 2004, indicating that extension of marriage rights to same-sex couples is consistent with s. 15(1) of the Charter. Bill C-38, known as the Civil Marriage Act, S.C. 2005, c. 33 was then introduced into Parliament.
 The Ontario Spousal Relationships Statute Law Amendment Act, 2005, S.O. 2005, c. 5 (Bill 171).
 This codified the definition of marriage for the first time in Canadian law and made Canada the fourth nation in the world to legalize same-sex marriage following Belgium, the Netherlands, and Spain.
 During the legal and legislative proceedings that culminated in the Civil Marriage Act, the question of protection of religious freedoms with regard to performing same-sex marriages has became the subject of significant political, legal and social debate. Amendments to both the Code and Ontario’s Marriage Act clarified existing protections of religious belief to address the specific matter of solemnization of same-sex marriages. Section 18.1(1) of the Code, and 20(6) of the Marriage Act clarify that religious officials (those registered under s. 20 of the Marriage Act) may refuse to solemnize or assist in solemnizing same-sex marriages and to refuse to allow a sacred place to be used for this purpose, due to religious belief.
Trinity Western University v. British Columbia College of Teachers,  1 S.C.R. 772. Trinity Western University (“TWU”) had been denied approval of a teacher education program by the British Columbia College of Teachers on the basis that it was contrary to the public interest because TWU appears to follow discriminatory practices. TWU offers education within a “Christian context” and requires students to sign a document outlining “Community Standards” containing a prohibition of “homosexual behaviour”. The Court concluded that, due to the absence of concrete evidence that the training teachers would receive at TWU would foster discrimination in the public schools of British Columbia, the freedom of individuals to adhere to certain religious beliefs while at TWU should be respected. However, the Court held that the freedom to hold these beliefs is broader than the freedom to act on them and acknowledged that teachers must understand the pluralistic and diverse nature of Canadian society. A teacher in a public school who acts on these beliefs in a discriminatory manner would still be subject to disciplinary proceedings.
In Hall v. Powers (2002), 213 D.L.R (4th) 308 (Ont.S.C.J.), the Ontario Superior Court granted an interlocutory injunction restraining the Durham Catholic District School Board from preventing Marc Hall’s attendance at his high school prom with his boyfriend. The Court was called upon to balance Hall’s s. 15 Charter right to be free from discrimination on the basis of his sexual orientation with the right to freedom of religion in s. 2(a) of the Charter and the protection of denominational school rights in s. 93(1) of the Constitution Act, 1867. The Court recognized a diversity of opinion within the Catholic community with regard to homosexuality and found that the restrictions imposed on Mr. Hall rights were not defensible under section 1 of the Charter.
In Brockie v. Brillinger (No. 2) (2002), 222 D.L.R. (4th) 174 (Ont. Sup. Ct. Div. Ct.), the Ontario Divisional Court considered whether a human rights tribunal decision on a claim of discrimination in a service because of sexual orientation infringed Scott Brockie’s right to freedom of religion under s. 2 of the Charter. The tribunal had found that Brockie and Imaging Excellence Inc. denied services to Ray Brillinger and the Canadian Lesbian and Gay Archives contrary to the Code and ordered Brockie and Imaging to provide the same printing services to lesbian and gay people and to organizations in existence for their benefit that they provide to other members of the public. The Divisional Court cited R. v. Big M Drug Mart Limited (1985), 18 D.L.R. (4th) 321, Dixon C.J.C, noting that service of the public in a commercial service must be considered at the periphery of activities protected by freedom of religion. However, the Court held (at para. 56) that the objectives of the Code must be balanced against Mr. Brockie’s right to freedom of religion and conscience. The Court narrowed the tribunal’s order to clarify that Mr. Brockie would not be required to print material which could reasonably be considered to be in direct conflict with the core elements of his religious belief [at para. 58].
Trinity Western University v. British Columbia College of Teachers,  1 S.C.R. 772 at para. 29.
Ontario Human Rights Commission v. Brockie,  O.J. No. 2375 (Ont. Sup. Ct.).