20 January, 2010

How did "sex" change from meaning one's gender to one's orientation

If there is one topic that is certain to generate responses in the blogosphere, it is whenever any one posts something that is considered by others to be homophobic (which now is defined as contrary to the gay rights agenda). The basis for the charge of discrimination that always follows such a post (at least within Canada) is usually based upon the philosophical and legal foundations of the Canadian Charter of Rights and Freedoms (Part I, section 15-1) which states:

 Equality before and under law and equal protection and benefit of law
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 

My question to anyone interested in such matters is this:  is the use of the word "sex" in this section not supposed to refer to one's gender and not one's sexual orientation?  If my memory serves, that was the interpretation that was accepted at the time. How and where did one's sexual preferences.orientation come to replace what was considered to be a word intended to deal with gender discrimination.

If one were to stretch out the concept of gender to include transgendered individuals - this I could understand as you are still dealing with a definition of gender. How is it that it came to be seen in a completely different light and meaning than is carried by the word "sex" in the context used in the Charter?

Let me express my reservation about doing so as follows:
1) sex in this legal sense meant gender
2. gender is determined by one's physicality
3. therefore this section of the charter (or similar other legal documents) offers no protection to people based upon their sexual preference as the defining characteristic of their personhood.

Anyone's input would be very much appreciated.

Thanks.

Fr. Tim

2 comments:

  1. That's an interesting observation, something I had not thought of earlier.

    Now it is not enough that we accept homsexuality, we actually have to applaud it and encourage it.

    I'm not sure if you're familiar with the story of Pastor Boisson from Alberta ?

    ReplyDelete
  2. Hi Tim,

    I am not a constitutional lawyer, however, I will provide a quote that summarizes how "sexual orientation" came to be read into Sections 15.1 and 15.2 of the Charter:

    "Equality Rights

    Section 15 of the Charter provides persons with several key equality rights. More specifically, this section states that every individual is equal before and under the law, and has the right to the equal protection and equal benefit of the law without discrimination (in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability). This section helps ensure every individual is considered equal under Canadian law and that governments don’t discriminate against certain groups in its policies and programs. Over the years, the courts have extended the section to include other grounds of discrimination, such as sexual orientation.

    It is also important to note that section 15 explicitly states it does not preclude any government law or program aimed at improving the status of a disadvantaged group (for example, an affirmative action program established to increase employment opportunities for women or minorities). This clarification is important in that it eliminates constitutional challenges to such programs on the grounds they discriminate against non-disadvantaged groups (such as white males)."

    Remember, the classes of persons who may not be discriminated against in section 15.1 are not exhaustive or exclusive of any other classes. The full article can be found here:

    http://www.mapleleafweb.com/features/canadian-charter-rights-and-freedoms-introduction-charter-rights

    Hope this helps.

    Cheers...Martin

    ReplyDelete

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