No rights for gays
Whereas the Bermuda Constitution and the Human Rights Act were brought into force to give effect to the recognition of the inherent dignity and the equal and inalienable rights of individuals recognised by the Universal Declaration of Human Rights as proclaimed by the United Nations and the principles encapsulated in the European Convention for the Protection of Human Rights and Fundamental Freedoms, both instruments together fall pitifully short of protecting the fundamental rights of gays.In dealing with cases that are brought under human rights legislation, the Canadian courts and tribunals observe the rules of construction in a wide and purposive manner so as to advance the objectives of the underlying legislation.
In Haig -v- Canada (1992) 9 OR (3d) 495, the Complainant, a homosexual and a captain in the Canadian Armed Forces, once his sexuality was discovered, became subject to CAF policy directives towards homosexuals which disqualified him from promotions, postings or other military training.
As a result he left the CAF and sought redress through the Canadian Human Rights Act.
He discovered that he was precluded from doing so because the Act’s section 3(1), like ours, does not include sexual orientation as a prohibited ground of discrimination.
As a consequence, he made an application under the Canadian Charter of Rights and Freedoms seeking various declarations, inter alia, granting gays the right to protection under the Human Rights Act in seeking redress against discrimination on the grounds of sexual orientation.
The trial judge held that “the absence of sexual orientation from the list of proscribed grounds of discrimination is section 3 of the Canadian Human Rights Act is discriminatory as being contrary to the guarantee of equal benefit of the law set out in section 15 of the Charter.”
The Attorney General of Canada appealed. However the Court of Appeal in Ontario dismissed the appeal and stated as follows: “Section 15 of the Charter does not, in express terms, include sexual orientation as a basis of discrimination against which constitutional protection is guaranteed as integral to equality before and under the law and equal protection and benefit of the law. It is now clear that section 15(1) of the Charter provides protection not only to the enunciated grounds but also to grounds that are analogous to them—.Courts in Canada have acted on the premise that sexual orientation is an analogous grounds or is a ground covered by section 15 of the Charter.”
Unfortunately, those principles cannot be applied by the courts in Bermuda notwithstanding the decision of the Privy Council in Minister of Home Affairs and Another -v- Fisher [1986] A.C. 319. Having traced the history of the Bermuda Constitution which was greatly influenced by the European Convention and subsequently ratified by the United Kingdom and applied to Bermuda, the Privy Council stated — “These antecedents, and the form of Chapter I, itself calls for a generous interpretation avoiding what has been called ‘the austerity of tabulated legalism’, suitable to give the individuals the full measure of the fundamental rights and freedoms referred to.’
The reason the position in Bermuda is different from that in Canada is that the Canadian Charter of Rights and Freedoms guarantees equality before and under the law and the right to equal protection and equal benefit of the law without discrimination.
In Bermuda, however, despite the purported entitlement to the fundamental rights and freedoms of the individual contained in section 1 of the Bermuda Constitution, section 12 guarantees protection against discrimination only on the grounds of race, place of origin, political opinions, colour or creed and the protection for privacy guaranteed by section 7 is restricted to unlawful search and entry. The courts in Bermuda would therefore be unable, by any stretch of the imagination, to interpret those sections to treat sexual orientation as an analogous ground or a ground covered by the Constitution.
Also, it should be noted that the narrow protection guaranteed in section 7 of the Constitution does not conform with the wider protection guaranteed by Article 8 of the European Convention which protects the right to respect for private and family life vis-à-vis the right to protection against discrimination on the grounds of sexual orientation (Lustig-Prean -v- United Kingdom (1999) 7 BHRC 65 and
In short, therefore, gays have no rights nor redress under the laws of Bermuda.
At best, a gay person who has been discriminated against can seek relief before the European Court in an action against the United Kingdom claiming that the Constitution and the Human Rights Act do not conform with the European Convention.
So where does that leave an aggrieved gay person who does not have the benefit of any enforceable rights like other protected classes of individuals? That remedy is most impractical given the time effort and expense that an aggrieved party would be forced to undergo in order to protect a fundament right guaranteed by all other western democracies.
Venous Memari is chairwoman of the Human Rights Commission and a lawyer at Mello Jones & Martin. The foregoing are solely the views of the writer in her personal capacity, and do not necessarily reflect the views of Mello Jones & Martin.
