Vriend is our Friend!

Holly Wu and Kenny Lau

Authors Holly Wu and Kenny Lau are law students at HKU enrolled in the PCLL and LLB programmes respectively. 

Canada is one of the most LGBT-friendly countries of all times. She was ranked first in the Gay Travel Index Chart in 2018, surprisingly, this pioneer has come a long way in building a loving atmosphere for everyone. Discrimination against sexual minority has once been an issue left out by the government in the last century. 
 
Before looking into the Canadian landmark case of Vriend v Alberta,[1] an anti-discrimination against sexual minority in employment, you may wonder about the situation in Hong Kong. 

Anti-discrimination law in Hong Kong
 
In our home city, equality, as guaranteed in the Hong Kong Bill of Rights Ordinance (Cap 383), is materialised in four pieces of anti-discrimination ordinances. They respectively cover discriminations against sex, family status, race and disability over different aspects of lives, for instances, employment, education and provision of goods and services. However, there is no anti-discrimination law in Hong Kong upon grounds of sexual orientation, gender identity, gender expression and sex characteristics at this moment. [2]

Who was Mr. Vriend?
 
The applicant, Mr. Vriend, was employed as a laboratory coordinator at a Christian college in Edmonton, Alberta, who had been receiving positive valuations for his work performance. On a random day in Spring 1991, Mr. Vriend was fired. The only reason given to him was that he was in violation of the college’s policy on homosexual practice, since Mr. Vriend was a gay man. 
 
At that time, the only statue protecting the employees against discrimination was the Individual’s Rights Protection Acts (IRPA), passed by the Legislative Assembly of Alberta. Section 7(1) of the IRPA prohibited all sorts of workplace discrimination including mental and physical disability, race, religion, gender, but leaving out discrimination against sexual orientation. 
 
Mr. Vriend, with several groups advocating for gay and lesbian rights, therefore applied to the Court of Queen’s Bench of Alberta to challenge the constitutionality of the IRPA, on the basis that it violated equality of individual, as guaranteed under section 15(1) of Canada Charter of Rights and Freedom.  

Ruling in the Supreme Court of Canada
 
Since the application was ruled against in the Court of Appeal, it went up to the Supreme Court for a final ruling upon LGBT rights in employment. 
 
The Supreme Court read in “sexual orientation” as grounds for discrimination in IRPA and decided that the omission of such as a protected ground was a breach against the Charter. 
 
The Attorney General of the provincial government argued on the ground of formal equality, i.e. people with different sexual orientations can be discriminated in the workplace but no one can file a complaint under IRPA. It was submitted, therefore, homosexuals and heterosexuals were treated equally under the statue.
 
Responding to this argument, the court took into consideration the social context at that time. It was observed that people with homosexuality were much more likely to be discriminated, comparing to people with heterosexuality, in work place. The court decided that the omission of the ground of “sexual orientation” under IRPA had a negative impact on homosexual people, which was a violation of the Charter.
 
Right is not always absolute. Section 1 of the Charter provides that any guarantee on rights and freedoms shall be subject to reasonable limits “demonstrably justified in a free and democratic society”. However, workplace discrimination on grounds of “sexual orientation” was found unreasonable.

Insights for us in Hong Kong 
 
Anti-discrimination law against one’s sexual expression has never drawn enough attention from the government or Legislators. Thanks to Mr. Vriend, a workplace discrimination case against sexual minorities, although unfortunate, would open up an opportunity to bring the issue to court and discuss whether the current legislation is able to demonstrate values as guaranteed under our constitution. However, the line between the court intervening in the legislative branch by making new laws and upholding constitutional values by reading in underlying contexts has never been an easy one to be drawn.
 
Facing the uncertainties on approaches to be taken by the court, what we can concretely do in the community to fight against any discrimination is to behave and communicate. Since there is always a common value backing up a law or a legal position, a higher social acceptance towards homosexuality is always helpful for the court to be more liberal when considering what to be read in under provisions guaranteeing equality between individuals. 
 
Taking a step backward to see a bigger picture, anti-discrimination law is never going to eliminate discrimination against the minority group from the root; only understanding and accepting will do. While fighting for anti-discrimination law against one’s sexual expression should absolutely be on the list, never forgetting the picture of an ultimate loving world with no discrimination but only respect towards differences between human is key. 

[1] Vriend v Alberta [1998] 1 S.C.R. 493
[2[ LGBTI Rights. (n.d.). Retrieved November 06, 2020, from https://www.amnesty.org.hk/en/our-work/gender-and-sexual-rights/lgbti-rights/
[3] Landmark Case: Sexual Orientation and the Charter - Vriend v. Alberta. (2017, January 05). Retrieved November 06, 2020, from http://ojen.ca/en/resource/landmark-case-sexual-orientation-and-the-charter-vriend-v-alberta