e-6497 (Civil and human rights)

Canada is a country built on the values of diversity, inclusion and respect for human rights. Subsection 15(1) of the Canadian Charter of Rights and Freedoms – which applies to all government actions – guarantees equality to all individuals without discrimination based on several grounds. Although the grounds of “sexual orientation”, “gender identity” and “gender expression” are not explicitly listed in the text of subsection 15(1) of the Charter, it is important to note that the enumerated grounds are not exhaustive. The Supreme Court of Canada has recognized “sexual orientation” as an analogous ground. Courts have found laws and policies which misgender or otherwise do not recognize the gender identity of transgender and non-binary individuals could constitute discrimination, contrary to section 15 of the Charter.

In addition, Canadians also benefit from protections under the Canadian Human Rights Act (CHRA), which prohibits discrimination based on sexual orientation, gender identity, and gender expression in the provision of employment, accommodation, and services within areas of federal jurisdiction. Unlike the Charter, there is no “notwithstanding clause” in the CHRA.

Despite these enshrined rights, discrimination based on sexual orientation, gender identity and expression continues to be a reality in Canada and it must be eliminated. In the current climate, there is a disturbing rise in hate and violence against 2SLGBTQI+ communities, which contributes to a heightened climate of fear for 2SLGBTQI+ people.

The Government of Canada is committed to promoting equality for 2SLGBTQI+ individuals, protecting their rights, and addressing both historical and current discrimination against 2SLGBTQI+ communities.

The Government has taken several actions to end discrimination against 2SLGBTQI+ people in Canada, including:

• 2017: The Canadian Human Rights Act was amended to protect gender identity and gender expression.
• 2022: Parliament criminalized conversion therapy, see Statement.
• 2022: Launch of the first Federal 2SLGBTQI+ Action Plan.

The Government of Canada intervened in the case of English Montreal School Board et al. v. Attorney General of Quebec et al. before the Supreme Court of Canada, as it had committed to doing. This case raises important constitutional questions regarding the use of the notwithstanding clause and has implications for the rights and freedoms of all Canadians.

The Supreme Court’s decision will shape how both federal and provincial governments may invoke the notwithstanding clause for years to come. As the Court considers this case, Canadians can count on the Government of Canada to defend their Constitution, respect their rights and freedoms, and to stand up for the Charter that protects them.