Heeding the Times from Harry Antonides' Desk

When Human Rights are Trivialized

April 1, 1988 -

Sometimes labour disputes approach the ridiculous. At one time workers had few if any defences against unfair management decisions, but today the tables seem to have turned, especially since equality has become the rage. Unions all too often are willing accomplices in abusing rules designed to protect workers. A good illustration of this trend is the recent ruling of the learned members of the Ontario Divisional Court on a dispute between Wardair and one of its employees.

Wardair, a major Canadian airline, had ordered Robert Elder, a flight attendant, to remove an earring from his left ear, claiming that it was a violation of the company dress code that might cause customer resentment and thus damage the company's business.

The employee complied but launched a protest through the grievance procedure of the collective agreement. At the arbitration hearing, he argued that wearing an earring was a form of self-expression and his way of projecting himself to the community in which he worked. The arbitrator, David Beattie, a law professor at the University of Toronto, ruled that the company failed to prove damage to its business and that the anti-earring ruling for male flight attendants discriminated against male employees. The company then appealed the arbitrator's decision to the Ontario Divisional Court, which held that the arbitrator had acted within his jurisdiction. All three judges agreed with this decision, although one judge dissociated himself from the reasoning, claiming that there was nothing unreasonable in the airline's dress rule.

When human rights and equality are invoked to allow a male flight attendant to wear an earring and the elaborate and costly machinery of dispute resolution is used to resolve such an issue, rights and freedoms are trivialized to the detriment of us all.

The arbitrator's argument that since female flight attendants may wear earrings, it is discriminatory to forbid male flight attendants to do so may seem quite innocuous. By the same reasoning, shouldn't male flight attendants also be allowed to wear dresses, high-heeled shoes, cosmetics, and so on if they so desire? What is so significant about the difference in male and female attire anyway? But what at first glance looks like a silly dispute may have far-reaching consequences in the long-term. In fact, it may very well be part of a much larger trend to question (and eventually destroy) all traditional norms and institutions. Using the principle of equality to settle such disputes does not enhance our well-being and freedom but merely shows up the spiritual and moral confusion of our age. Read on.

Supreme Court Rejects Lesbian Demand

Those who oppose the sexual orientation clause in human rights codes correctly argue that the clause does more than simply protect the civil and constitutional rights of homosexuals.

Homosexuals are working towards a radical redefinition of public mores regarding sexuality, marriage, and the family. A good example is a recent case before the Supreme Court of Ontario in which a lesbian employee of the Toronto Public Library Board, Karen Andrews, claimed that she and her live-in female partner (and her two children) are entitled to family coverage under the Ontario Hospital Insurance Plan. The Toronto Public Library Board is willing to pay the family rate for OHIP premiums, and Andrews's union, the Canadian Union of Public Employees Local 1996, supports her case.

The Ministry of Health, which administers OHIP, has refused to accept this application for family coverage. The Ministry's lawyer argued that the definition of a family in the relevant legislation restricts it to spouses of the opposite sex. He told the Supreme Court of Ontario that a lesbian's relationship with her partner can be likened to the obligation of one sister to another sister. He explained that lesbians are not alone in such a situation but that other non-traditional family units, such as adult sisters, cousins, or a mature child supporting a parent under the same roof, also are required to pay separate OHIP premiums. Furthermore, he pointed out, the lesbian couple are at a financial advantage because Andrews's partner can apply for premium assistance, and her two children are already covered through premiums paid by their father.

On March 7, the Ontario Supreme Court ruled that lesbian mates do not meet the criteria of "spouse" as defined by the Health Insurance Act and other provincial laws. The term spouse, said Justice Nicholas McRae, refers to a person of the opposite sex in approximately 79 Ontario statutes. He wrote: "Heterosexual couples procreate and raise children. They marry or are potential marriage partners and, most importantly, they have legal obligations of support for their children whether born in wedlock or out and for their spouses pursuant to the Family Law Act. A same-sex partner does not and cannot have these obligations."

McRae also ruled there was no basis to the couple's argument that OHIP's refusal to consider them spouses threatens their liberty to "engage in an adult, intimate and consensual relationship with a person of the same sex."

Andrews is not really interested in the financial benefits; she explained that she initiated the three-year court battle and jeopardized her career in the interests of obtaining dignity and equal treatment. She said that the province's refusal to grant her equal treatment to heterosexuals in common-law relationships is an attack on the dignity of homosexuals. Her lawyer argued that failure to provide family coverage to same-sex couples amounts { to sexual orientation discrimination contrary to the Human Rights Code. The Canadian Union of Public Employees is considering an appeal of the Supreme Court ruling.

Mr. Justice McRae expressed the opinion that Andrews's case before him was "premature" because the courts have ruled that claims of discrimination must first be pursued under the Human Rights Code of Ontario, and so this is probably not the last we'll hear of the matter. On the basis of precedent, Ontario's Supreme Court refused to recognize a homosexual relationship as a marriage in this case. However, the Human Rights Commission may well view this as discrimination on the basis of sexual orientation and side with the complainant. If that would happen, the destructive intentions and impact of the "sexual orientation" clause in the law would become undeniably evident.

This article originally appeared in Comment magazine, a journal founded by Harry Antonides. Find all of Harry’s pieces, and thousands more, at http://www.cardus.ca/comment