CENTREPIECE

Patchwork Laws: GLBT families and the right to adopt

By Melissa Luhtanen

Reprinted with permission

Vol. 2 Issue #2, Summer 2003

In my family adoption seems like a side issue to the real challenges of parenting: a technicality in a sea of decisions about what is in the best interests of our 15-month old, Ruby. If I am to be honest it is a niggling worry in the back of my head, one I know I should address, but that seems so ridiculous because we are just as much Ruby's parents as any other heterosexual parents would be in our situation.

Ruby was conceived through alternative insemination with an anonymous donor. If I were in a heterosexual relationship, adoption would be unnecessary. I would simply write my husband's name on the birth certificate and forever more he would be Ruby's legal parent, regardless of the fact that I did not use his sperm. My partner and I planned the birth, supported each other through the insemination roller coaster, waged 77 hours of labour together, and always share child care decisions and responsibilities, but she is not a legal parent, simply because we are queer.

While it is true that she is eligible in Alberta to be a parent, that takes time and money, and as a mom of a new baby it has been 14 months and the adoption paperwork is still sitting on my desk! Because my partner and I are lawyers, we have the option of doing it ourselves. For most new moms however, the $2,500 legal fee is an expense they probably didn't count into their calculations of getting pregnant. In addition, I wanted Vicki to be the legal parent of our daughter the minute Ruby's little nose started to emerge into this world. What if I had died during labour? Would Vicki have been given custody? Would Ruby's right to her Mom have been challenged or supported?

At present British Columbia is the only province that has addressed this issue in a legal forum. In Gill v. Murray, the B.C. Human Rights Tribunal found that it was discriminatory to demand that same-sex couples go through an adoption process, when opposite sex couples using donor insemination can simply list their names on the birth certificate. That case is a tribunal decision that could be appealed in the future.

Of course to get to the place where you can slot your name into the birth certificate, you must first live in a province where same-sex adoption is allowed in the first place. If you live in New Brunswick, P.E.I. or Nunavut, adoption by a same-sex couple is not permitted. These places do not allow adoption as a step-parent of your partner's biological/legal child, or adoption as a same-sex couple of a third party's child. In each of these places adoption is limited to opposite sex spouses or single unmarried individuals. Nunavut is in the process of approving Bill 12, a Human Rights Act that would include 'sexual orientation.' It has received second reading and has been sent to the Standing Committee. This legislation will open the door for Nunavut's Adoption Act, which presently has a heterosexual definition of spouse, to be challenged. P.E.I. is in the process of doing a series of amendments to its Family Law Act.

The other provinces have either amended their legislation or interpreted it to include step-parent and third party adoption by a same-sex couple. When deciding whether an adoption will be approved, the court must look at whether it will be in the best interests of the child. The 'best interests' test is one that is used for heterosexual step-parents as well. It is still too early in adoption case law to see whether heterocentric stereotypes will be used in applying this test. At present, couples that fall within the range of a ''typical' relationship (if there is such a thing,) where both partners are viewed as the parents of the child, have had no problems adopting. The courts however, are beginning to see the different family forms that exist in Canadian society. In April of this year an Ontario court in A.A. v. B.B. said that a child could only have two parents. In this case a partnered lesbian conceived using a male friend's sperm. Under law the parents were the birth mother and the friend, who was the father of the child. The baby however, was also 'parented' by the partner of the birth mother. The child referred to all 3 by parental labels, but the Court said that Ontario law did not provide for more than 2 people to be the legal parents of a child. An appeal is currently under consideration in this case.

Governments for the most part, have not made amendments of their own free will. GLBT communities fund each and every legal battle, and each issue is often fought province by province, thus slowing the progress of court cases that should have a predictable outcome. This is because provincially regulated areas of law have to be tackled in each province in order for change to happen nationwide. This is different for issues like marriage, which are federally regulated: once the Federal government re-writes the marriage laws, these laws will be in effect for all of Canada.

When provincial laws are challenged, such as in adoption or the setting up of registered domestic partnership agreements (RDPs,) the country is left with a strange patchwork quilt of legislation. For instance, in Nova Scotia the Law Reform (2000) Act introduced RDPs for same-sex couples. These RDPs ensured access to rights such as division of property on relationship breakdown. The RDP rights allotted under the Act did not include the right to adopt the biological child of a same-sex partner, leaving a gaping hole in rights for same-sex couples. Just as the Law Reform (2000) Act came into force, a decision by the Nova Scotia Supreme Court held that same-sex couples had the right to adopt their partner's biological child. Without this decision same-sex couples would have had relationship rights without the means of co-parenting their children.

Alberta is another example of the way laws for the queer community are developing in bits and pieces. Same-sex couples have had the right to adopt since the 1999 case of Re A (Adoption). Yet only in June 2003 did the parents of those adopted children get some relationship rights through the Adult Interdependent Partnership Act. Those rights, which mimic RDPs, do not encompass all the rights that a married couple has. Yet, the provincial government is planning on putting a block in front of same-sex couples that want to get married in Alberta.

This patchwork quilt of legislation within a province and across the country results in same-sex headed households living in legal limbo. Those that are unfamiliar with the law, or do not keep close watch of changes in the law, are at risk of being slotted into a new legal framework without ever knowing that legal rights and responsibilities have changed in their relationship. The Adult Interdependent Partnership legislation in Alberta is an example of this. After three years of living together same-sex couples automatically come under the legislation and therefore have legal rights and responsibilities that they did not have up until that point. There is no notification of this change in their legal status. In fact same-sex couples have lived outside of legal acceptance and regulation for so long that many queer couples do not accept that a law could define the seriousness of their relationship without their permission or knowledge.

For the transsexual community the legal battles have only begun.Last year NWT was the first place in Canada to include 'gender identity' as an enumerated ground of discrimination. Transsexual complainants are covered under the heading of 'sex' in some other provinces such as Ontario, British Columbia and Alberta. However, it is only within the last few years that human rights courts have acknowledged this.

Transsexual communities are at a place in human rights where the GLB communities found themselves sometime between 10 and 20 years ago. Their rights are in a legal limbo. Gender Identity has not been written into the majority of human rights legislation. Some jurisdictions recognize transphobia as discrimination based on 'sex' but there are very few cases giving guidance on transsexual rights, and no cases that have come out of the highest court ­ the Supreme Court of Canada. This means that in many cases a transsexual person has to fight extra hard for rights, and these rights are not standardized by a SCC or other high court judgment.

For the transsexual community the problems in adoption are framed around different issues. There are no laws per se against a trans person adopting a child. Transphobia is very real however, and my guess is that someone who can 'pass' and does not reveal that they are trans would have a greater chance of being able to adopt a child. There is a lengthy list of questions however, that the adoption agency will pose in any adoption, and a home study is often involved. In my research some adoption agencies said that they discussed 'sexuality' and would expect a trans person to 'come out' at that point. Not wanting to put any red flags up, I didn't mention that being trans was about gender identity and not necessarily sexuality. Some adoption agencies however, did say that they also ask questions about past medical history and this may require a trans person who has undergone SRS (Sex Reassignment Surgery) or other related surgeries to reveal personal information that would 'out' them. The option of course is there for the trans person to omit this information as being totally unrelated to their ability to parent a child, but they may then hinder the entire adoption process should this information be later revealed by some other means. This poses a legal and political dilemma for the prospective adoptive trans parent.

Discrimination in adoption will affect transsexual men and women who have not undergone any surgeries, more than those who have had a surgery such as SRS or a mastectomy. Many trans men decide not to have SRS because the surgery is extremely expensive and not reliable in terms of functionality. Others may not have the money needed for surgery. The result is that their identification could reveal their new legal name but may also reveal their birth sex instead of their true gender.

A final hurdle for trans adoptive parents will be the layering of discrimination that will occur if they are in a same-sex relationship, or any relationship for that matter, that does not look like the traditional heterosexual model.

Overall adoption rights for the GLBT communities are advancing along with other legal rights. Where adoption is legalized, GLBT communities can use private adoption agencies. In this case the biological mother/father chooses the adoptive parents and this can then result in a longer waiting period if a heterosexual couple is chosen over a queer couple. In larger centers there are private adoption agencies that service GLB communities, but this is rarely heard of in smaller centers.

There is much disparity between the provinces and territories, and there are still issues within provinces that have legalized adoption by same-sex couples. For instance, statistics in Toronto and British Columbia show that government agencies do place children with gays and lesbians. Here in Alberta there are no records of whether or not children are being placed by government agencies with same-sex couples. GLBT activists argue that government agencies follow an unwritten rule of avoiding placement of a child in a same-sex headed household. On the other hand, government agencies submit that there are no barriers to adoptions by gays or lesbians. It is clear however, that even as the formal legal barriers dissolve, there are hidden barriers that will continue to make adoption more difficult for GLBT communities.

Editor's Note: Melissa Luhtanen is a lawyer and human rights educator at the Alberta Civil Liberties Research Centre. She lives with her partner, Vicki and their baby Ruby. When Vicki and Melissa aren't cleaning yogurt off the walls, flung by Ruby's strong left hook, they are frolicking in the beautiful Calgary May snow. Since Ruby's birth, Melissa has been immersed in baby-yoga, the meditative art of being a Mom, chanting and relaxation with sweet little Ruby.

Staff and Volunteers

We have been busy these past few months. Research Associate Carmen Dowhaniuk has left us and we are in the process of recruiting a replacement. Good luck and thanks Carmen! We welcome our new Northern Alberta Human Rights Educator, Susan Jensen, a lawyer who lives in Vermillion.

We enjoyed the services of several law students this summer; Sandra Smyth, Jan Goodwin, and Krishna Koul all did a great job. We are continuing to work with the Canadian Institute of Resources Law on the joint project on human rights and resource development. Eric Goodwin is helping us out with our education evaluation project.

We are fortunate to be working with excellent volunteers for the last few months including Justin Dos Ramos Katie Frank, Emily Baum, Sylvie Lang, Mona Motamedi, Eman Safadi, Danielle Grover, Tracy Arnell, Paul Harden, Scott Smith, Susan Blackman, Allison Eng, Rosalynn Roxas, Kelly Meyers, Heather Cooke, Tekisha Rayne and others. The new semester has just started and we have had many inquiries, so I am sure there will be even more volunteers to thank next newsletter! Thanks!! -Linda McKay-Panos
Alberta Civil Liberties Research Centre

Civil Liberties Award

Call for Nominations - deadline November 21
Do you know an Albertan who has demonstrated outstanding leadership in promoting civil liberties and human rights through legal research, education or advocacy?

Please provide us with a letter, email or fax in which you provide details about why your chosen person should receive our Civil Liberties Award. The letter must be received by November 21, 2003.

The award will be given at a special ceremony on December 3rd at the University of Calgary.

Announcements

September 26 to October 5, 2003 Calgary International Film Festival.

Call 283-1490 for information.

October 3-4, 2003: Human Rights and Resource Development in Alberta: Workshop, Lethbridge. Contact Pat Albrecht at 220-3974 for information.

October 3, 2003: Media Forum on the Importance of Diversity in Media, Classrooms and in Society. Contact Vilma Dawson at 268-5175 for information.

October 22, 2003: Domestic Violence Panel, University of Calgary, Faculty of Law Murray Fraser Hall, Room 2370 12:00 p.m.

December 3, 2003: International Human Rights Day Forum: Security vs. Human Rights Moot Court, Murray Fraser Hall. 12:00 p.m.

Is there a human right to affordable, suitable, and adequate housing in Canada?

Reprinted from Law Now 27(6) 2003
By Linda McKay-Panos

Across Western Canada this winter, it has been unseasonably cold. As I go about my daily business grumbling about the weather and my car's reluctant engine, I often wonder about the circumstances of the large number of Canadian individuals and families who are homeless living on the streets, in cars, in shelters or in other temporary accommodation. Many of the people who are living in shelters are working at jobs that don't pay well enough for them to afford proper housing for their families. The housing situation in Canada is said by many to have reached a state of crisis, particularly for Aboriginal persons.

There are many statistics that back up these assertions. One recent study clearly illustrates the problem. On October 23, 2002, the Edmonton Homelessness Count Committee made its fifth annual count of homeless people in the City of Edmonton. In providing this 24-hour snapshot, the Committee found 1915 homeless people, of which 1213 were absolutely homeless and 702 were living in emergency accommodations. Among these were 118 families with 267 children under 15; about 43% of the people were Aboriginal, 43% were Caucasian and 14% were neither Aboriginal nor Caucasion (October 2002, A Count of Homeless Persons in Edmonton: http://www.gov.edmonton.ab.ca ). It is important to note that Aboriginal people were over-represented in the count, as they do not comprise anywhere near the same percentage of the Edmonton population as do Caucasian persons.

The situation of homeless people in Canada appears not to have gone unnoticed by the government. In the past couple of years, the federal government signed affordable housing agreements with a number of territories and provinces, promising to provide funding to help increase the supply of affordable housing. Also, several private member's bills have been introduced into Parliament seeking to include a right to housing as a human right, recognized in Canada's Bill of Rights. The most recent was introduced in February, 2003 (Bill C-376).

What will amount to "affordable", "suitable" and "adequate" housing in Canada? The Caledon Institute of Social Policy provides definitions of these terms (October 2001, Toward a Comprehensive Affordable Housing Strategy for Canada by Steve Pomeroy, at 2). In summary, it says:

Affordable: household not paying more than 30 percent of its income for housing;

Suitable: household has a sufficient number of bedrooms based on the family composition; and

Adequate: household is safe, has basic plumbing and is in a reasonable, habitable state of repair.

These criteria seem reasonable, in light of Canada's standard of living and our climate. The Caledon Institute found that affordability of housing was the greatest problem in Canada. They suggest the causes are incomes that are too low and rents that are too high.

In recognition of the severity of the problem, many would like to be able to point to legislation to support their assertion that we have the right to adequate housing in Canada. What are our human rights to affordable, sufficient, and adequate housing? This right and similar standard of living rights are well articulated in the international sphere. Article 25(1) of the Universal Declaration of Human Rights says that "Everyone has the right to a standard of living adequate for health and well-being including food, clothing, housing." Article 11 of the Covenant on Economic, Social and Cultural Rights states that everyone has the right to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. Canada has signed and is bound by this United Nations Convention. Our government must report on a regular basis to the United Nations Committee on Economic, Social and Cultural Rights (the "Committee") about compliance with all of the provisions in this Convention. The Committee then responds to this report. In its concluding observations in 1998, the Committee said:

The Committee is gravely concerned that such a wealthy country as Canada has allowed the problem of homelessness and inadequate housing to grow to such proportions that the mayors of Canada's largest cities have now declared homelessness a national disaster.

One of the concerns about international law is that the remedies are elusive to many everyday people. The force of international opinion will probably have an impact on Canadian federal and provincial governments over time, but what can an individual Canadian do to assert an immediate right to affordable, sufficient and adequate housing and how can he or she obtain a remedy in Canada? Two main sources of human rights in Canadian law are the Charter of Rights and Freedoms (the "Charter") and the human rights legislation found in all provinces. If a person experiences discrimination in housing he or she is turned away from rental accommodation because of his or her source of income, race, religion, and like grounds he or she can complain to the human rights commission in the province and obtain a remedy. Anti-discrimination legislation is therefore supportive of the right to housing, if the problem is discrimination.

However, what if the problem is not one of discrimination, but poverty? Can we assert our right to housing using the Charter? Can we argue that the government has an obligation to provide an adequate standard of living, which includes adequate housing? Charter section 7 guarantees our right to security of the person and subsection 15(1) protects us from discrimination. However, translating these provisions into a right to housing is far from certain under our current case law.

There are very few reported legal decisions dealing with whether Canadians have the right to housing under the Charter. This right is at best in an embryonic stage under the Charter case law. In a 2003 decision, Gosselin v. Quebec, the Supreme Court of Canada was asked to rule on whether Charter sections 7 or 15 are violated when a person receives inadequate welfare benefits, resulting in the deprivation of his/her basic needs. Of particular interest to the right to adequate housing was the justices' ruling on Charter section 7. Seven of nine justices found that nothing in the jurisprudence on Charter s. 7 suggested that the section placed positive obligations on the state, such as the obligation to guarantee adequate living standards. Thus, in the circumstances of the case, there was no violation of the right to life, liberty and security of the person that warranted a novel application of s. 7. However, two dissenting justices held that Charter's section 7 imposes a positive obligation on the state to offer basic protection for the life, liberty and security of its citizens. The Court was not addressing the issue of the right to housing, but this decision perhaps sheds some light on the position the court might take if faced with a right to housing case. Thus, it remains to be seen whether section 7 can be helpful in asserting a right to adequate housing.

In the 1990s, when Canadians were seriously looking at amending our Constitution, some human rights advocates argued that economic and social rights should be spelled out clearly in the Charter, leaving no doubt as to our basic rights to an adequate standard of living, housing and the like. However, the negotiations failed and our Constitution remains unchanged.

Sometimes human rights law does not keep up with what most of us would agree are human rights. At the moment, Canadian law has not yet developed sufficiently for one to strongly assert that we have a recognizable legal right to adequate housing. The international community has made it clear that we have this right, and that it should be recognized in Canada. Many would say that the Canadian jurisprudence needs to catch up. 

Video Reviews

by Melissa Luhtanen, Human Rights Educator

Apples and Oranges 2003, 18 minutes NFB

This film, aimed at 8 ­ 12 year olds, shows a teacher discussing gays and lesbians with his class. Interspersed with their learning about homophobic stereotypes are 2 cartoon vignettes demonstrating some positive ways of dealing with name-calling and homophobia. Apples and Oranges is a wonderfully positive and inspiring way to give kids a chance to contribute to their own learning about difficult issues such as bullying and homophobia. The jacket to the video includes some definitions and activities to keep the communication created by viewing the video open in your classroom.

Sticks & Stones: Words that hurt and how young people can overcome them, 2001, 17 minutes NFB

A film that discusses the various forms of families and what defines a family. An exploration of gay and lesbian families from the perspective of kids. Kids use their compassion to understand same-sex families and how name calling can harm fellow students. This film leaves the viewer feeling as if more must be done to accommodate gay and lesbian families, while providing some great ideas on how to do it. Aimed at grades 3 to 7.

In Other Words, 2001, 27 minutes NFB

An informative look at gay, lesbian, bisexual and transgendered (glbt) culture from a youth perspective. Celebrates diversity while providing interesting and important education on what it means to be glbt. This film is a great way to educate your class, ages 13 and up, on the basics and definitions of being glbt. It encompasses the diversity of these communities and demonstrates how name calling and bullying can negatively impact glbt youth's lives.

Stolen Moments, 1997, 91 minutes NFB

Stolen Moments takes you on a voyage through three centuries of lesbian life, weaving together the lost threads of history: from the unique lesbian cultures of Amsterdam, Paris and Berlin, to the North American meccas of New York, San Francisco, Vancouver and Montreal. This excellent film for youth and adults alike relates the history of lesbian existence and thereby creates a deeper and broader understanding of lesbian culture around the world.

These videos can be borrowed from the Research Centre, or to order your own copy, call the National Film Board, at 1-800-267-7710.

Engaging Students in Social Responsibility Symposium a Great Success

ACLRC held its educator's symposium on May 29-31, 2003. It was attended by over 50 teachers, educators, community representatives, students and parents. Seventeen non-government organizations had display tables and resources to share.

The event was launched by an inspiring keynote address by Fil Fraser, who has been involved in human rights for a long time. His speech was entitled "It IS the best of times" and set the tone for the rest of the workshop. We heard from Dr. Darren Lund on Countering Hate through Education, Rosemary Allan on the In My World initiative, Bob Bergen on Media Awareness, Peace Education by Fran Zaborniak, Why We Should Teach Social Responsibility by Glyn Hughes and Student Involvement in Social Responsibility by Glyn Hughes, Elizabeth Seale, Darren Lund and Maryam Nabavi. Research Centre staff Pamela, Melissa and Linda were also able to demonstrate how the ACLRC's human rights education program supports Alberta Learning curriculum. We were thrilled to have the participation of several enthusiastic students.

We were delighted by the All Nations Theatre who performed for us and provided us with much food for thought.

The goals of the Symposium were:

*to provide education,

*to share resources and best practices, and

*to provide a springboard for future opportunities for continued professional development in citizenship, civil liberties and human rights education.

The project allowed participants to obtain a CD, containing a list of excellent annotated teaching resources, as well as a file box full of curricular material related to the conference. Participants learned and shared methods of engaging students in citizenship, civil liberties and human rights activities, and will participate in ongoing communication with those who attend the Symposium, in the form of resources and discussion on the ACLRC website.

Thanks to the Alberta Law Foundation, The Alberta Association for Multi-cultural Education, Lynn Foster, Sandra Smyth, Tracy Arnell, Justin Dos Ramos, Katie Frank and all the staff and volunteers at ACLRC. The Alberta Civil Liberties Research Centre appreciates the contributions of volunteers and donors, and the support of agencies that provide grants to the Centre, including:

The Alberta Civil Liberties Research Centre appreciates the contributions made by donors and volunteers, and the support of agencies that provide grants to the Centre, including:

The Kahanoff Foundation

The United Way of Calgary and Area

The Sheldon M. Chumir Foundation for Ethics in Leadership

Department of Canadian Heritage, Government of Canada

Status of Women Canada

Human Resources Development Canada (S.C.P.)

Alberta Human Rights, Citizenship and Multiculturalism Education Fund

Calgary Community Lottery Board

Alberta Advanced Education and Community Development (S.T.E.P.)

Centrepiece

Publisher and Editor:
Linda McKay-Panos

Regular contributors:
Linda McKay-Panos and Melissa Luhtanen

This web site © 1999-2003 Alberta Civil Liberties Research Centre, Calgary, Alberta, Canada. This page last updated on December 5, 2003 .