LGBT rights in Canada

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Canada (orthographic projection).svg
StatusSame-sex sexual acts lawful since 1969;[1] section of the Criminal Code in reference to anal intercourse repealed in June 2019.[2]
Gender identityChange of name and legal sex available in every province and territory, under different rules, and without sex reassignment surgery
MilitaryLGBT people have been authorized to serve openly since 1992.
Discrimination protectionsSexual orientation since 1996 and gender identity or expression since 2017 throughout Canada
Family rights
Recognition of relationshipsSame-sex marriage legally permitted throughout Canada since 2005
AdoptionLegally permitted (particulars may differ within each province and territory)

Lesbian, gay, bisexual, and transgender (LGBT) rights in Canada are some of the most advanced in the Americas and in the world. Same-sex sexual activity has been lawful in Canada since June 27, 1969, when the Criminal Law Amendment Act (also known as Bill C-150) came into force upon royal assent.[1]

Canada is considered the most gay-friendly country in the world, being ranked first in the Gay Travel Index chart since 2018, and among the five safest in Forbes magazine since 2019.[3][4] The country's largest cities feature their own gay areas and communities, such as Toronto's Church and Wellesley neighbourhood, Montreal's Gay Village commercial district, Vancouver's Davie Village and Ottawa's Bank Street Gay Village.[5] Since the Supreme Court of Canada's 1995 decision in Egan v Canada, sexual orientation has been a prohibited basis of discrimination under Section 15 of the Canadian Charter of Rights and Freedoms.[6] Every summer, Canada's LGBT community celebrates gay pride in all major cities, with many political figures from the federal, provincial and municipal scenes.

In recent decades, Canada has seen major legal shifts in support of LGBT rights (e.g. decriminalization, anti-discrimination, anti-harassment, gay marriage, bans on conversion therapies, etc.). A global survey conducted in March 2013, showed that 80% of Canada's general population (87% among Canadians aged between 18 and 29) favoured social acceptance of homosexuality, which represented an increase of 10% in public opinion, within six years.[7] Thereafter, polls from June 2013 have shown an increase in the Canadian population's point of view, with a large majority of Canadians supporting same-sex marriage, which has been legally permitted since 2005. The polls also show that 70% of Canada's population agree that "same-sex couples should have the same rights to adopt children as heterosexual couples do," and 76% agreeing that "same-sex couples are just likely as other parents to successfully raise children".[8] By the year 2020, 91.8% of those surveyed in a poll commissioned by the Privy Council Office said they would be “comfortable” if a next-door neighbour was gay, lesbian or bisexual and that 87.6 per cent said they would be “comfortable” if a neighbour was a transgender person."[9]

History[edit]

Transgender people and cross-dressing practices have been recorded and documented in Canada for centuries. Different indigenous groups have had their own traditions and terms to refer to transgender people, gender variance or sexual identity. These First Nations had perceptions towards gender and sexuality which differed significantly to that of the Western world. Many transgender people in these traditional roles were in positions of reverence, where they acted as caretakers of children who had lost their families, spiritual healers and warriors in battle. The Cree term apêw iskwêwisêhot refers to people who are assigned male at birth but act, dress and behave as female, while the term iskwêw ka napêwayat has the opposite meaning, that being a person assigned female at birth but acts and behaves as male. Similarly, the Kutenai titqattek describes women who take on roles traditionally characterized as masculine, including hunting and warfare. The Blackfoot term aakíí'skassi (meaning "acts like a woman"; also spelt a'yai-kik-ahsi) describes men who dress as women and typically perform chores and activities associated with women, such as basket weaving and pottery making. Many other indigenous groups recognise similar terms: the Inuit sipiniq (ᓯᐱᓂᖅ), the Assiniboine wįktą, the Tlingit gatxan, and the Tsimshian kanâ'ts. Among the Ojibwe, male-to-female individuals are known as ikwekaazo, which literally translates to "men who chose to function as women", whereas female-to-male individuals are known as ininiikaazo. The European colonialists would describe such individuals as "homosexuals", "a curious compound of man and woman" or "berdache", meaning a catamite or a male prostitute. The term is now considered offensive and outdated. Following colonisation and the spread of Christianity by religious missionaries, many of these traditions began to die out. Transgender individuals were furthermore forced and assimilated into Europe-centric culture, and even among the indigenous peoples perceptions began to change. In the early 1990s, indigenous groups sought to reclaim many of their customs and traditions. LGBT indigenous groups proposed the term "two-spirit" to refer to a traditional and cultural "third gender". In modern times, two-spirit is frequently used by First Nations groups to refer to people who embody these gender traits, and is occasionally used to reference the entire indigenous LGBT community. As such, the terms LGBT2S or LGBTQ2S are increasingly used, with the 2S denoting two-spirited people. Records of homosexuality and same-sex relations also exist, notably among the Mi'kmaq, where the common phrase Geenumu Gessalagee, which translates to "he loves men", is used to refer to such individuals.[10]

During the British North American era, same-sex sexual activity between men was a capital crime. However, there is no surviving record of any executions, and political figures were reluctant to enforce the law.[11] The death penalty was eventually repealed and a broader law involving gross indecency between men was often enforced in the late 19th century.[12] During the early to mid 20th-century, the law often portrayed homosexual men as sex offenders until the infamous court case of Everett George Klippert, who admitted to having sex with multiple men, resulted in his life imprisonment. Same-sex sexual activity between consenting adults was soon decriminalized in 1969 as a result of legislation introduced in 1967, with then-Justice Minister and Attorney General of Canada Pierre Trudeau (who eventually became the 15th Prime Minister of Canada) famously commenting, "There's no place for the state in the bedrooms of the nation."[13]

Same-sex marriage became legal in Ontario in 2003, and was already legalized in eight of ten provinces and one of three territories when, on July 20, 2005, Canada became the first country outside Europe and the fourth country in the world to legalize same-sex marriage nationwide after the enactment of the Civil Marriage Act. Same-sex adoption has also been legal in all provinces and territories under varying rules. Discrimination on the basis of sexual orientation and gender identity or expression in employment, housing and public and private accommodations is banned nationwide. Transgender people are allowed to change their legal gender in all provinces and territories under varying rules.

Constitutional framework[edit]

Enforcement mechanism[edit]

The rights of LGBT Canadians are now as well protected as those of other Canadians largely due to several court decisions decided under Section 15 of the Canadian Charter of Rights and Freedoms (French: La Charte canadienne des droits et libertés) that was included in the Constitution of Canada in 1982, with Section 15 coming into force in 1985.

Some of the cases were funded under the Federal Government's Court Challenges Program,[14] which in 1985 was expanded to fund test cases challenging federal legislation in relation to the equality rights guaranteed by the Charter. There has also been some funding to challenge provincial laws under a variety of programs, but its availability has varied considerably from province to province.[15]

Legal and equality rights[edit]

Participants at the 2016 Vancouver Pride parade

The Constitution of Canada does not explicitly grant or deny any right to LGBT people, however section 15 of the Charter prohibits all types of discrimination by the government which LGBT people could be subject to. Subsection 15 reads:

(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. (2) Section (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Section 15 is written so as to protect against discrimination generally, with the enumerated grounds of prohibited discrimination (race, sex, etc.) being only examples instead of a comprehensive list. In landmark ruling in 1995 in the case of Egan v. Canada, the Supreme Court of Canada declared that sexual orientation is comprised and contained within the bounds of section 15, as an analogous ground; and, therefore, individuals are protected against discrimination on the basis of that ground. Sex and physical disability have been interpreted, so as to encompass transsexuality and HIV/STDs (see discussion below).[16] As articulated, and reaffirmed in 2008, "the promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration".[17] In addition, "the Supreme Court has identified a number of interests as significant within the context of section 15", namely "access to homosexual erotica for gay and lesbian culture".[18]

Section 15 applies to all laws and law enforcement authorities in Canada, but the Charter does not grant immediate rights against the private sector. For example, a discrimination complaint against a restaurant would need to be filed under federal or provincial anti-discrimination legislation and not the Charter. However, ultimately, all court rulings, including judicial reviews and writs, must come up with the Constitution of Canada, and the Charter as part thereof, and thus, supersede any law being inconsistent with the latter.[19] In private litigation, "courts should, from time to time, re-evaluate the consistency of the common law with evolving societal expectations through the lens of Charter values".[20]

In its 1998 decision in Vriend v Alberta, the Supreme Court of Canada found that legislative omission -- in this case, the failure of the provincial legislature to include sexual orientation as a prohibited ground of discrimination -- was a violation of section 15 Charter rights. As of 2017, all provinces, territories, and the federal government explicitly include sexual orientation and gender identity as prohibited grounds of discrimination in their human rights acts.

Exceptions[edit]

The entire Charter is also subject to a general exception in section 1 that allows "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The Oakes Test sets out the Supreme Court of Canada's interpretation of this exception. This analysis may consider conflicting Charter rights. For example, the right to equality based on sexual orientation under section 15 may be limited by the freedom of religion under section 2, and vice versa. It may also be limited by the right to denominational (religious) schools under Section 93 of the Constitution.

In addition, Section 15 and a few other Charter sections are subject to the "notwithstanding clause" of the Charter that allows provincial governments to declare that a law is exempt from the Charter for up to five years, which exemption may be renewed any number of times. In 2000, Alberta amended its Marriage Act to define marriage as being between a man and a woman.[21] The law included a notwithstanding clause, but the amendment was nevertheless invalid since the capacity to marry is a matter of exclusive federal jurisdiction according to the Constitution.[22] The notwithstanding clause can only be used to make exceptions to the Charter; it cannot change the federal division of powers. In any case, the five-year exemption period expired in 2005.

The notwithstanding clause has never been used by the Federal Government; it is generally believed that this is because it would constitute a politically embarrassing admission that the law in question violated human rights.

However, the notwithstanding clause is no gateway for a government to exercise unjust or oppressive uses of political power. Section 33 of the Charter, as the entire Charter, is also subject to section 1, and, as it applies only to sections 2 and 7 to 15, is of no force or effect for overriding section 1.

Legality of same-sex sexual activity[edit]

Anal sex law[edit]

Same-sex activity is legal in Canada and the age of consent is 16, equal to the age of consent for heterosexual activity, since June 2019.

During the British North American era, same-sex sexual activity between men was a capital crime.[11] The death penalty was eventually repealed and a broader law involving gross indecency between men was often enforced in the late 19th century.[12]

In June 1969, Bill C-150 decriminalized sexual activity between men, with an age of consent for anal sex set at 21 years.[23] In 1985, the anal sex provisions in section 159 of the criminal code were relaxed, although the age of consent remained 18 years of age unless the parties were husband and wife.[24] Section 159 also placed bans on a third person being present during the act of anal intercourse and having people, no matter the number, engage in anal intercourse in public places.[24] Courts in Ontario,[25] Quebec,[26] British Columbia,[27] Nova Scotia,[28] and Alberta[29] each independently declared section 159 to be unconstitutional as violations of the equality provision of the Canadian Charter of Rights and Freedoms, before the section was repealed altogether in June 2019.

On November 15, 2016, the Liberal Government introduced legislation to repeal section 159 of the Criminal Code. The bill, C-32, would have ensured that all forms of consensual sexual activity be treated equally under the law, with an equal age of consent for both heterosexual and homosexual acts.[30] The bill was later incorporated into a new bill, C-75, which was tabled in late March 2018. The Canadian Government said: "We heard from the community that section 159 is a piece of archaic legislation that has continued to affect young men, so it’s important to get this debated and passed through the house."[31] On June 21, 2019, the bill received royal assent and was enacted as law.[32]

Apology and expungement scheme[edit]

On November 28, 2017, Prime Minister Justin Trudeau issued a formal apology in Parliament to members of the LGBT community:[33]

It is with shame and sorrow and deep regret for the things we have done that I stand here today and say: We were wrong. We apologize. I am sorry. We are sorry... To members of the LGBTQ+ communities, young and old, here in Canada and around the world: You are loved. And we support you. To the trailblazers who have lived and struggled, and to those who have fought so hard to get us to this place: thank you for your courage, and thank you for lending your voices. I hope you look back on all you have done with pride. It is because of your courage that we’re here today, together, and reminding ourselves that we can, and must, do better. For the oppression of the lesbian, gay, bisexual, transgender, queer, and two-spirit communities, we apologize. On behalf of the government, Parliament, and the people of Canada: We were wrong. We are sorry. And we will never let this happen again.

— Prime Minister Justin Trudeau, 28 November 2017

On June 21, 2018,[34] the Governor General granted royal assent to the Expungement of Historically Unjust Convictions Act (French: Loi sur la radiation de condamnations constituant des injustices historiques),[35] which allows a person who was convicted of homosexual acts prior to their being lawful in 1969 to have the RCMP, and federal departments or agencies, "destroy or remove any judicial record of the conviction".[36]

Recognition of same-sex relationships[edit]

Long before 2005, when Parliament enacted a statutory law recognizing same-sex marriage on the federal level, same-sex relationships were already recognized by many provinces, as some provincial administrative acts were already assigning the same rights and obligations to same-sex and opposite-sex couples living together, or de facto spouses in Quebec.

As early as 2002, the Civil Code of Quebec was amended to provide same-sex couples with an all-encompassing solution, and the most extensive possible within provincial jurisdiction, insofar as it created then a status of civil unions that still allows for couples who choose to form such a union, regardless of gender or sexual orientation, to benefit from the same effects as those of marriage, "as regards the direction of the family, the exercise of parental authority, contribution towards expenses, the family residence, the family patrimony and the compensatory allowance."[37] Since then, in addition to being bound to share a community of life, and owing each other respect, fidelity, succor and assistance, civil union spouses have the same rights, duties and obligations as married couples, but unlike marriage, which is under federal jurisdiction, a civil union is valid only in Quebec, and may not be recognized outside of its jurisdiction, or may be faced with unexpected problems.[38]

Between 2002 and 2005, courts in several provinces and one territory ruled that restricting marriage to opposite-sex couples constitutes a form of discrimination that is prohibited by Section 15 of the Charter of Rights and Freedoms, and struck down the federal definition, requiring that those jurisdictions register same-sex marriages. The first ruling required the Federal Government to draft legislation recognizing same-sex marriage, but later rulings brought the new definition into effect immediately in the jurisdictions concerned. Canadian jurisdictions thereby became the third in the world to allow same-sex marriage, after the Netherlands and Belgium. By July 2005, same-sex marriages were legally recognized in all provinces and territories except Alberta, Prince Edward Island, the Northwest Territories and Nunavut, encompassing over 85% of Canada's population.

The Federal Government announced in the summer of 2003 that it would not appeal the decisions, and would draft legislation to allow same-sex marriages across the country. The bill was put before the Supreme Court of Canada to ensure that it would withstand a Charter challenge by those who oppose same-sex marriage. The Supreme Court heard arguments on the draft legislation in October 2004, and in December of the same year, declared the proposed definition of "marriage" as being consistent with respect to all matters referred to in the Canadian Charter of Rights and Freedoms, and as falling within the exclusive legislative authority of the Parliament of Canada.[39]

The bill was passed by Parliament in July 2005, making Canada the fourth country to legalize same-sex marriage nationwide, and the first to do so without a residency requirement.[40]

One recent study by Mark W. Lehman suggests that between 1997 and 2004, Canadian public opinion on legalizing same-sex marriage underwent a dramatic shift: moving from minority support to majority support and that this support was the result of a significant shift in positive feelings towards gays and lesbians.[41]

Adoption and family planning[edit]

The first province to allow adoption of children by same-sex couples in Canada was British Columbia in 1996.[42] Since then, adoption by same-sex couples has been legalized in Ontario (1999),[43] Saskatchewan (2001),[44] Nova Scotia (2001),[45] Newfoundland and Labrador (2002),[46] Quebec (2002),[47] Manitoba (2002),[48] the Northwest Territories (2002)[49] and Yukon (2003).[50][51] In Alberta, stepchild adoption was legalized in 1999 and eight years later, in 2007, joint adoption became legal.[52][53] New Brunswick legalized joint adoption in 2008,[52][54] while Prince Edward Island did so in 2009.[55][56] Nunavut legalized it in 2011, and thus became the last province or territory in Canada to do so.[57][58]

Discrimination and harassment protections[edit]

"March of Hearts" rally for same-sex marriage in Canada on Parliament Hill in Ottawa, March 6, 2004.

Enforcement mechanism[edit]

The Federal Government and every province and territory in Canada have enacted human rights acts that prohibit discrimination and harassment on several grounds (e.g. race, sex, gender identity or expression, marital status, religion, disability, age and sexual orientation) in private and public sector employment, housing, public services and publicity. Some acts also apply to additional activities. These acts are quasi-constitutional laws that override ordinary laws as well as regulations, contracts and collective agreements.[59] They stand by the rule that every person has the right to the equal benefit of the law. They are typically enforced by human rights commissions and tribunals through a complaint investigation, conciliation and arbitration process that is slow, but free, and includes protection against retaliation. A lawyer is not required.

Anti-discrimination definitions[edit]

Sexual orientation is not defined in any human rights act, but is widely interpreted as meaning heterosexuality, homosexuality and bisexuality. It does not include transsexuality or transgender people.[60] The Federal Court of Canada has stated that sexual orientation "is a precise legal concept that deals specifically with an individual's preference in terms of gender" in sexual relationships, and is not vague or overly broad.[61]

As of 2017, all human rights acts include "gender expression" and/or "gender identity" as prohibited grounds for discrimination. Previously, human rights tribunals had interpreted their human rights acts as including gender identity and gender expression under the category of "sex" as a prohibited ground for discrimination.[62][63][64]

The Ontario Human Rights Commission has adopted the following definition:

Sexual orientation is more than simply a 'status' that an individual possesses; it is an immutable personal characteristic that forms part of an individual's core identity. Sexual orientation encompasses the range of human sexuality from gay and lesbian to bisexual and heterosexual orientations.[65]

And defines gender identity and gender expression as follows:

Gender identity is each person’s internal and individual experience of gender. It is their sense of being a woman, a man, both, neither, or anywhere along the gender spectrum. A person’s gender identity may be the same as or different from their birth-assigned sex. Gender identity is fundamentally different from a person’s sexual orientation. Gender expression is how a person publicly presents their gender. This can include behaviour and outward appearance such as dress, hair, make-up, body language and voice. A person’s chosen name and pronoun are also common ways of expressing gender.[64]

Similar definitions exist in other provinces' Human rights commissions, for example, Quebec's Commission defines sexual orientation as the emotional or sexual attraction to someone, and, as a personal characteristic, as being permanent or difficult to change.[66]

All human rights laws in Canada also explicitly prohibit discrimination based on disability, which has been interpreted to include AIDS, ARC and being HIV-positive, and membership in a high-risk group for HIV infection.[16]

Federal level[edit]

On June 20, 1996, the Canadian Human Rights Act (CHRA; French: Loi canadienne sur les droits de la personne) was amended to include sexual orientation as a protected ground. The CHRA guarantees the right to equality, equal opportunity, fair treatment and an environment free from discrimination in employment and the provision of goods, services, facilities or accommodation within federal jurisdiction.[67] As relations between individual human beings fall within provincial jurisdiction, the CHRA applies only to corporations, that fall within federal jurisdiction, namely, federal departments and agencies, banks, radio and television stations, airlines, and ship-owners towards their employees or the general public.

Attempts to add "gender identity and expression" as protected grounds began when NDP MP Bill Siksay introduced a private member's bill in the House of Commons in 2005. When it failed to pass before Parliament was dissolved, he reintroduced the bill in 2006 and again in 2009, with additional provisions to add gender identity and expression to the hate crimes provisions of the Criminal Code.[68] In February 2011, it passed third reading in the House of Commons with support from all parties, but was not considered in the Senate before Parliament was dissolved for the 41st Canadian federal election. Similar bills were introduced in the next Parliament, and Randall Garrison's bill was passed in the House of Commons, but it died on the Senate order paper when the 2015 federal election was called.[69]

In May 2016, the government introduced An Act to amend the Canadian Human Rights Act and the Criminal Code, to add "gender identity or expression" in the Canadian Human Rights Act and the hate crimes provisions of the Criminal Code.[70] In June 2017, the Canadian Parliament passed the bill and it received royal assent a week later. The law went into effect immediately.[71][72]

Provincial and territorial level[edit]

In 1977, the Quebec Charter of Human Rights and Freedoms, which is both a charter of rights and a human and youth rights act, was amended to prohibit discrimination based on sexual orientation, and later harassment, in 1982. Thus, the province of Quebec became the first jurisdiction in the world larger than a city or county to prohibit sexual orientation discrimination, and harassment (including but not limited to mockery, insult, bullying, and intimidation at school, or at work), in the private and public sectors. The law was later amended to include gender identity and gender expression in 2016.[73] Since 2008, Quebec's Ministry of Justice has specifically been assigned for the fight against homophobia, so as to perform full social acceptance among and within Quebec's population. "The mandate of the Bureau de lutte contre l'homophobie is to oversee the implementation, monitoring and assessment of the Government Action Plan against Homophobia," which "promotes respect for the rights of sexual minority members," and sets down "the creation of safe, inclusive environments," as one of its five priorities.[74][75]

In 1984, in Manitoba, LGBT activists pushed for inclusion of protection from discrimination on the grounds of sexual orientation with tactics including a 59-day hunger strike by Richard North.[76] In 1987, Manitoba passed the Human Rights Code which included protections from discrimination based on sexual orientation.[77]

In 1998, the Supreme Court ruled in Vriend v. Alberta that the exclusion of sexual orientation from human rights acts was a violation of section 15(1) of the Charter of Rights and Freedoms. Sexual orientation was thus protected by law under every jurisdiction in Canada. In 2009, Alberta became the last jurisdiction in Canada to add "sexual orientation" to its human rights code.

Since June 2017, all provincial and territorial human rights legislation explicitly prohibits discrimination based on gender identity, and some also explicitly include gender expression.[78]

LGBT discrimination protections table[edit]

Territory/Province Sexual orientation Gender identity Gender expression Conversion therapy ban
Canada (federal) Yes (Since 1996)[67] Yes (Since 2017)[71] Yes (Since 2017)[71] No (pending as of 2020, passage in general scope and principle as of 28 October 2020)[79]
Alberta Yes (Since 2009)[80] Yes (Since 2015)[81] Yes (Since 2015) No/Yes (Banned in St. Albert[82] and Edmonton since 2019[83], in Fort McMurray[84] and both Calgary and Lethbridge since 2020[85][86][87])
British Columbia Yes (Since 1992) Yes (Since 2016)[81][88] Yes (Since 2016) No/Yes (Banned in Vancouver since 2018)[89]
Manitoba Yes (Since 1987) Yes (Since 2012)[90] Yes/No (Not explicitly included but implicitly included since at least 2016)[91] Yes (Since 2015)[92]
New Brunswick Yes (Since 1992)[81] Yes (Since 2017)[93] Yes (Since 2017)[93] No
Newfoundland and Labrador Yes (Since 1995) Yes (Since 2013)[81] Yes (Since 2013) No
Nova Scotia Yes (Since 1991) Yes (Since 2012)[94] Yes (Since 2012) Yes (Since 2018, but allows "mature minors" between the ages of 16 and 18 to consent)[95]
Ontario Yes (Since 1986)[67] Yes (Since 2012)[96][97] Yes (Since 2012) Yes (Since 2015)[98]
Prince Edward Island Yes (Since 1998) Yes (Since 2013)[99] Yes (Since 2013) Yes (Since 2019)[100]
Quebec Yes (Since 1977) Yes (Since 2016)[101] Yes (Since 2016) No (pending as of 2020, adopted in principle as of 10 November 2020)[102]
Saskatchewan Yes (Since 1993) Yes (Since 2014)[103] No[104] No
Northwest Territories Yes (Since 2002) Yes (Since 2002) No No
Nunavut Yes (Since 1999) Yes (Since 2017)[105] Yes (Since 2017) No
Yukon Yes (Since 1987) Yes (Since 2017)[106][107] Yes (Since 2017)[107] Yes (Since 2020)[108][109]

Activities where equality guaranteed[edit]

Accordingly, discrimination, including harassment, based on real or perceived sexual orientation, gender identity, or HIV/AIDS status is prohibited throughout Canada in private and public sector employment, housing, services provided to the public and publicity. All aspects of employment are covered, including benefits for spouses and long-term partners. Examples of services include credit, insurance, government programs, hotels and schools open to the public. Schools open to the public are liable for anti-gay name-calling and bullying by students or staff.[110] LGBT Canadians have been allowed to serve in the military since the Douglas case was settled in 1992.[111]

Prohibited discrimination occurs not only when someone is treated less favourably or is harassed based on a prohibited ground, but also when a uniform policy or practice has a perhaps unintended disproportionately adverse effect based on the ground. This is called "adverse effect discrimination."[112] For example, it might in theory be discriminatory for schools open to the public to require parental consent for student participation in all school clubs, assuming that students are less likely to ask for or get permission to participate in gay–straight alliance clubs.

Exceptions[edit]

Human rights acts have no exceptions specifically for sexual orientation or gender identity, however, human rights acts typically include an exception for "bona fide requirements" or qualifications that applies to most grounds (e.g. sex, sexual orientation, disability), but only when the stringent requirements of the Meiorin Test are met.

Since human rights acts are quasi-constitutional laws, it is not possible for job applicants or unions, for example, to sign away equality rights.[59] However, other laws may explicitly say that they apply notwithstanding a human rights act. Furthermore, some collective agreements include broad non-discrimination provisions that actually expand upon the rights listed in human rights acts.

Schools and other educational institutions[edit]

Some schools have gay–straight alliances or similar groups to counter homophobia and bullying and provide support for LGBT students in school.

The rights of LGBT students and staff in an educational institution vary considerably depending on whether the institution is religious and/or open to the public, since human rights acts only partially prohibit discrimination against pupils of private schools and the Charter only partly prohibits discrimination by churches, associations and businesses, while section 2 of the Charter protects freedom of religion and section 93 of the Constitution recognizes the right to denominational schools in some provinces.

The curriculum of public schools, particularly in British Columbia, are now being amended to incorporate LGBT topics. In reality, implementation of curriculum varies from school division to school division and often from teacher to teacher.

Religious educational institutions may in many cases discriminate based on sexual orientation against students and staff according to religious doctrine. Nevertheless, if they rent facilities to the general public on a commercial basis without regard to their religion, they may not refuse to rent them to LGBT groups.[113] Controversially, the Canadian Supreme Court ruled in favour of denying accreditation to a religious university in 2018, due to its policies banning students who have had gay sex or sex outside of marriage.[114]

However, most educational institutions, including privately owned schools open to the general public, are public services. They are subject to human rights acts and are strictly required to not discriminate against staff or students based on all the prohibited grounds, including sexual orientation, HIV/AIDS (and gender identity, see Grounds of prohibited discrimination above). They are strictly liable for harassment, name-calling and bullying of students and staff by staff on these grounds. In addition, as a result of the Jubran decision,[110] they are liable for most such behaviour by students. They may be liable for anti-gay bullying even if the victim is not gay, nor believed to be (e.g. when a bully knowingly makes a false claim that a girl is a lesbian so that she will be ostracized or bullied by others or pressured to have sex with a boy to prove otherwise).

Furthermore, it may not be enough for schools to progressively discipline bullies when this is ineffective. Schools are responsible for providing an educational environment that is free from discriminatory harassment, and this may require them to provide "resources to adopt a broader, educative approach to deal with the difficult issues of harassment, homophobia and discrimination."[110] The Supreme Court of Canada declined to hear an appeal from the Jubran decision, thus adding to its authoritativeness.

Public education governance bodies may place limits on the freedom of expression and the freedom of religion rights of teachers and school counsellors with respect to statements they may make regarding LGBT issues, both on and off the job. Teachers and school counsellors are considered to hold positions of trust and influence over young people and are required to ensure that their public statements do not impair public confidence in the school system or create an unwelcoming or intolerant school environment.[115][116]

In 2012, Ontario passed the Accepting Schools Act, which was enacted after growing concern regarding bullying behaviours and several tragic suicides of bullied students. The legislation is intended to identity and prevent bullying, which includes LGBT students, and provide resources and support for educators and students as they deal with bullying incidents.[117][118] Under the act, bullying is defined as repeated and aggressive behaviour by a pupil where, 1) the behaviour is intended by the pupil to cause, or the pupil ought to know that the behaviour would be likely to cause, harm, fear or distress to another individual, including psychological harm or harm to the individual's reputation and 2) the behaviour occurs in a context where there is a real or perceived power imbalance between the pupil and the individual based on factors such as size, strength, age, intelligence, peer group power, economic status, social status, religion, ethnic origin, sexual orientation, family circumstances, gender, race, disability or the receipt of special education. Quebec, Manitoba, New Brunswick, Nova Scotia, Alberta, Newfoundland and Labrador, the Northwest Territories and Yukon have also enacted similar anti-bullying laws. Other provinces, including British Columbia and Saskatchewan, have established policies and action plans regarding bullying in schools.[119]

On June 18, 2020, the employees of the Canadian Museum for Human Rights revealed that its management would sometimes ask staff not to show any gay content on tours at the request of certain guests, including religious school groups.[120]

Hate speech and propaganda[edit]

The Canadian Criminal Code explicitly forbids committing hate propaganda against sections of the public distinguished by sexual orientation, gender identity, or gender expression. Identifiable groups are thus protected against hatred, and genocide, namely destruction, or intent to bring about destruction.[121] The Criminal Code also provides against defamation. Everyone, including LGBT people, is protected against defamatory libels, especially through books, pamphlets, newspapers and the open Web, "that is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or that is designed to insult the person of or concerning whom it is published",[122] either directly, by insinuation or irony, by words or otherwise.

Under the Broadcasting Act, where a station, network or undertaking is operated for radio purposes, television broadcasting or discretionary services, "a licensee shall not broadcast programming that contains ... any abusive comment or abusive pictorial representation that, when taken in context, tends to or is likely to expose an individual or a group or class of individuals to hatred or contempt on the basis of sexual orientation; any false or misleading news".[123][124][125]

Generally speaking, in regards to the protections awarded to the freedoms set down in section 2 of the Canadian Charter of Rights and Freedoms, and the reasonable limits provided for by section 1:

2(a) On freedom of religion, "the Supreme Court has stated on many occasions that freedom of religion can be limited where it interferes with the fundamental rights of others",[126] that "freedom of religion is not unlimited, ...and is restricted by the right of others to hold and to manifest beliefs and opinions of their own, and to be free from injury from the exercise of the freedom of religion of others. Freedom of religion is subject to such limitations as are necessary to protect public safety, order, health or morals and the fundamental rights and freedoms of others".[127]

2(b) On freedom of expression, "any attempt to restrict the right must be subjected to the most careful scrutiny. However, the degree of constitutional protection may vary depending on the nature of the expression at issue... the low value of the expression may be more easily outweighed by the government objective. For example, limits are easier to justify where the expressive activity only tenuously furthers section 2(b) values, such as in the case of hate speech, pornography or marketing of a harmful product. Limits on political speech will generally be the most difficult to justify. Restrictions will also be more difficult to justify where they capture expression that furthers artistic, scientific, educational or other useful social purposes. Freedom of expression and freedom of the press do not encompass a broad immunity for journalists. Section 2(b) does not constitutionally entrench specific newsgathering techniques and not all journalistic techniques or methods, like reliance on confidential informants, are protected".[128]

2(c) On freedom of peaceful assembly, "section 2(c) includes the right to participate in peaceful demonstrations, protests, parades, meetings, picketing and other assemblies. It protects the right to demonstrate on public streets. It has been stated that the right to freedom of assembly, along with freedom of expression, does not include the right to physically impede or blockade lawful activities".[129]

2(d) On freedom of association, it has been declared that "it functions to protect individuals against more powerful entities, thus empowering vulnerable groups and helping them work to right imbalances in society. Freedom of association protects three classes of activities. Under the constitutive right, the state is prohibited from interfering with individuals meeting or forming associations, but is permitted to interfere with the activities pursued by an association. The derivative right protects associations’ activities that specifically relate to other constitutional freedoms, but does not protect other activities of the association. The purposive right protects associations’ activities that enable individuals who are vulnerable and ineffective to meet on more equal terms the power and strength of those with whom their interests interact or conflict. Section 2(d) does not protect an association’s activities that are aimed at enhancing social imbalances. Associational activity that constitutes violence is also not protected by section 2(d)".[130]

Conversion therapy[edit]

The 2014 edition of Pride Toronto

"Conversion therapy," also known as "reparative therapy," refers to widely debunked and abusive medical and psychological practices that claim to be able to change a person's sexual orientation or gender identity. Such practices have been rejected and condemned by every mainstream medical and mental health organization, including the Canadian Psychological Association, citing potential harm and lack of efficacy.[131][132][133][134]

Federal level[edit]

In September 2018, the Lethbridge Public Interest Research Group (LPIRG) and YQueerL launched a petition to ban conversion therapy nationwide.[135] However, in March 2019, the Government of Canada rejected the petition after it was presented in the House of Commons on 1 February by NDP MP Sheri Benson. The government response argued that conversion therapy is "immoral", "does not reflect the values of Canadians", and has been identified as "unethical." However, it refused to take action against the practice, claiming it falls under the scope of regulation of health professionals (on the basis that some conversion therapy is practised by regulated medical professionals such as registered psychiatrists or psychotherapists), which is a provincial and territorial jurisdiction.[136][137]

In April 2019, Liberal Senator Serge Joyal tabled Bill S-260,[138] which aims to amend "the Criminal Code to make it an offence to advertise conversion therapy services for consideration and to obtain a financial or other material benefit for the provision of conversion therapy to a person under the age of eighteen" and is either "liable to imprisonment for a term of not more than five years" or "punishable on summary conviction."[139][140] The bill died on the order paper when Parliament was dissolved for the 2019 election.

In May 2019, members of the Canadian Bar Association called on the Government of Canada to examine whether it has the legal power to ban conversion therapy and stop tax benefits for groups that carry out conversion therapy, either within Canada or abroad.[141]

In June 2019, the Government of Canada sent a letter to the provinces and territories, urging them to ban conversion therapy.[142]

In December 2019, Prime Minister Justin Trudeau announced that a nationwide ban on conversion therapy would be a priority for his government.[143] On 9 March 2020, the Minister of Justice introduced Bill C-8, An Act to amend the Criminal Code (conversion therapy).[144] Bill C-8 was dropped with the prorogation of Parliament on 18 August 2020, but the proposed legislation was reintroduced as Bill C-6 on 1 October 2020.[145][146] The Bill amends the Criminal Code to prohibit advertising for conversion therapy, causing a child to undergo conversion therapy, forcing any person to undergo conversion therapy against the person’s will, removing a child from Canada with the intention that the child undergo conversion therapy outside Canada, and receiving a financial or other material benefit from the provision of conversion therapy", subject to indictment or summary conviction, under pain of fine or imprisonment.

On 28 October 2020, the Bill was read the second time and referred to the Standing Committee on Justice and Human Rights.[147]

Provincial and territorial level[edit]

In 2012, the professional order for Quebec psychologists (l'Ordre des psychologues du Québec) reaffirmed "its position that homosexuality per se is not a mental disorder", and that it "opposes portrayals of sexual minority youths and adults as mentally ill due to their sexual orientation".[148] Any complaints concerning aversive therapies, whether it be conducted by religious, professional or other practitioners, would be filed with either one of the professional orders and/or Quebec's Commission des droits de la personne et des droits de la jeunesse, under the harassment clause, section 10.1 of the Quebec Charter of Human Rights and Freedoms,[149] or under the psychological ill-treatment clause, section 38 of the Youth Protection Act.[150] "No ideological or other consideration, including one based on a concept of honour, can justify any situation described in section 38".[151] In October 2020, the Quebec Government introduced a bill to ban conversion therapy.[102]

On May 22, 2015, Manitoba Health Minister Sharon Blady announced measures to stop conversion therapy in Manitoba. Blady said the province's Human Rights Code prohibits discrimination based on sexual orientation – including how health care services are provided.[152] Blady also stated that "it is the position of the Manitoba Government that conversion therapy can have no place in the province's public health-care system."[153]

In June 2015, the Affirming Sexual Orientation and Gender Identity Act (Bill 77) was made law in the province of Ontario. The act bans conversion therapy on minors and forbids it from being funded under the Ontario Health Insurance Plan public health care for anyone, of any age. The bill was introduced by Cheri DiNovo, a member of the Ontario New Democratic Party, and passed the Legislative Assembly with the support of all three major political parties.[154]

On June 6, 2018, the Vancouver City Council unanimously voted to prohibit conversion therapy by businesses, regardless of age. The business licence bylaw applies to all licence holders, including religious groups.[155][89]

Three bills (one each from the Nova Scotia Liberal Party, the Progressive Conservative Association of Nova Scotia and the Nova Scotia New Democratic Party) to ban the pseudoscientific and abusive practice were introduced in Nova Scotia.[156][157] On September 25, 2018, the Nova Scotia House of Assembly passed the Sexual Orientation and Gender Identity Protection Act, the Liberal Party bill, with the unanimous support of all parties. The legislation received royal assent on 11 October and went into effect immediately. The act provides measures similar to Ontario's legislation, both in terms of prohibiting professionals from performing the therapy on minors, and prohibiting public funds from paying for the procedures for everyone regardless of age. However, Nova Scotia's age limit is set at 19 instead of 18, and its exception for competent consenting individuals has a minimum age limit of 16, whereas Ontario's act doesn't set any specific minimum limit with respect to competent consenting individuals. Nova Scotia's legislation also prohibits persons in a position of trust or authority (such as a religious leader) from making efforts aimed at changing the orientation or gender identity of a person under 19 years of age.[158]

In November 2018, Prince Edward Island MLAs unanimously passed a motion expressing support for a conversion therapy ban. The non-binding motion was brought to the floor by Green Party MLA Peter Bevan-Baker. Health Minister Robert Mitchell argued to the best of his knowledge that conversion therapy is not practiced in the province. A queer rights advocate said he would like to see the province take the next step and introduce legislation.[159] In November 2019, MLAs unanimously passed the Sexual Orientation and Gender Identity Protection in Health Care Act. The bill, as supported by the Progressive Conservative Party of Prince Edward Island, was a collaboration between Health Minister James Aylward and Opposition Leader Peter Bevan-Baker. The bill was granted royal assent on November 28 and went into effect immediately. The act is a combination of the legislation of Ontario and that of Nova Scotia, however, Prince Edward Island's legislation has used the age of 18 across the board whereas Nova Scotia's legislation uses the age of 16 for some aspects.[160]

In March 2020, the Yukon Government introduced a bill to ban conversion therapy for minors.[161] It was passed and given Royal Assent on 9 November 2020.[162][163]

Intersex rights[edit]

For Intersex Awareness Day in October 2018, Egale Canada published a statement calling on the Canadian Government to protect the rights of intersex persons, fulfilling "treaty body obligations under international law," and accompanied by a submission to the UN Committee Against Torture. The statement referred to Criminal Code [s. 268(3)], stating that it "allows for parents and medical practitioners to undertake nonconsensual, cosmetic surgeries on intersex infants".[164][165] In May 2019, the Canadian Bar Association made a similar call.[166]

Since 2017, besides male and female, Canadian passports have been available with an "X" sex descriptor.[167] In June 2019, Canadian authorities announced that non-binary people may also apply to have an "X" gender marker.[168]

Birth certificates in Canada are issued by state and territory officials. As of 2019, Alberta, British Columbia,[169] New Brunswick,[170] Newfoundland and Labrador, the Northwest Territories,[171] Nova Scotia,[172] Ontario, and Yukon allow for a "third gender" option ("X"). Some provinces, namely Ontario and Saskatchewan, also offer citizens the option of not displaying the sex field at all.

Blood and tissue donation[edit]

In 1977, at the height of the HIV/AIDS pandemic, a ban on gay and bisexual men donating blood was enacted.[173]

In 2013, this ban was partially lifted and allowed for men who have sexual contact with another man to donate blood after a five-year deferral period.[173] In June 2016, Health Canada announced that the blood donation deferral period would be reduced to one year. The new criterion took effect on August 15, 2016.[173][174] On June 3, 2019, the deferral period for gay and bisexual men was reduced from 1 year to 3 months.[175][176]

On August 15, 2016, Canadian Blood Services' new eligibility criteria for transgender people came into effect. This criteria states that transgender donors who have not had sex reassignment surgery will be asked questions based on their sex assigned at birth. They will be eligible to donate or be deferred based on these criteria. For example, trans women will be asked if they have had sex with a man in the last 12 months. If the response is yes, they will be deferred for one year after their last sexual contact with a man. And donors who have had sex reassignment surgery will be deferred from donating blood for one year after their surgery. After that year, these donors will be screened in their affirmed gender.[177][178]

Organs and other tissues are also subject to a ban on donations from men who have sex with men, but exceptions can be made if no other organ is available and if the recipient gives informed consent.[179]

Health Canada still implements a lifetime ban on anonymous sperm donations by gay and bisexual men.[180]

LGBT issues in international politics[edit]

In 2008, Canada was part of the Joint statement on human rights, sexual orientation and gender identity delivered in the United Nations General Assembly, on behalf of 66 countries. Section 6 reads:

We condemn the human rights violations based on sexual orientation or gender identity wherever they occur, in particular the use of the death penalty on this ground, extrajudicial, summary or arbitrary executions, the practice of torture and other cruel, inhuman and degrading treatment or punishment, arbitrary arrest or detention and deprivation of economic, social and cultural rights, including the right to health.[181]

Thereafter, in 2011, Canada was also part of a joint statement delivered to the United Nations Human Rights Council, on behalf of 85 countries, for "ending acts of violence and related human rights violations based on sexual orientation and gender identity".[182] It recalled the 2008 Joint statement. Section 9 reads:

We recognise our broader responsibility to end human rights violations against all those who are marginalised and take this opportunity to renew our commitment to addressing discrimination in all its forms

LGBT influence in national politics[edit]

Prime Minister Justin Trudeau at the 2015 Vancouver Pride parade, shortly after launching his election campaign.

In the House of Commons, four parties support LGBT rights with varying degrees. The New Democratic Party, Green Party, Bloc Québécois, and Liberal Party of Canada are the most vocal supporters of these rights. At its founding, the Conservative Party of Canada was largely opposed to LGBT rights, although some members, typically former members of the Progressive Conservative Party, have supported LGBT rights, including same-sex marriage. Former members of the Canadian Alliance have generally opposed expanded LGBT rights, and a former CA MP was rebuked for calls to re-criminalize homosexuality.[183]

Since 2006, the Conservative Party has become a stronger advocate for LGBT rights in Canada and abroad.[184] In May 2016, Conservative Party delegates voted in favour of removing the definition of marriage as a union between one man and one woman from the party's official policy document, effectively changing the party's official position on same-sex marriage from opposed to neutral.[185][186][187]

The Liberal Party at the Montreal Marche des Fiertés

Svend Robinson is notable for having been the first MP to come out as gay, in spring 1988. He has since been followed by other gay and lesbian politicians in Parliament: fellow New Democrats Libby Davies, Bill Siksay, Philip Toone, Craig Scott and Dany Morin; Bloc Québécois MPs Réal Ménard and Raymond Gravel; and Liberal Party of Canada MPs Scott Brison, Mario Silva and Rob Oliphant, as well as Senators Laurier LaPierre and Nancy Ruth.

As of 2019, there are four members of the House of Commons and two senators who openly identify as gay or lesbian.

Chris Lea, leader of the Green Party of Canada from 1990 to 1996, was the first openly gay political party leader in Canada. Svend Robinson became in 1995 the first openly gay candidate for the leadership of a political party with representation in the House of Commons, although he was not successful. André Boisclair, the former leader of the Parti Québécois, became the first openly gay leader of a party with parliamentary representation in North America; Allison Brewer, former leader of the New Brunswick New Democratic Party, was also elected leader as an out lesbian.

The following provinces have had openly gay provincial cabinet ministers:[188] Ontario (Kathleen Wynne, George Smitherman, Glen Murray), British Columbia (Tim Stevenson, Lorne Mayencourt, Ted Nebbeling), and Manitoba (Jim Rondeau, Jennifer Howard). On January 26, 2013, Kathleen Wynne became the leader of the Liberal party of Ontario and premier of that province (the largest of the country's thirteen provinces and territories, with approximately 39% of the country's population). Following the Ontario provincial election in 2014, Kathleen Wynne became the first openly gay leader to be elected with a majority mandate in all the commonwealth jurisdictions.[189]

ProudPolitics, a cross-partisan organization dedicated to providing networking and fundraising assistance to LGBT politicians and candidates inspired by the American Gay & Lesbian Victory Fund, was established in Toronto in 2013.[190]

On November 15, 2016, Randy Boissonnault, Liberal MP for Edmonton Centre, was named Special Advisor on LGBTQ2 issues to the Prime Minister. The role involves advising the Prime Minister "on the development and co-ordination of the Government of Canada's LGBTQ2 agenda" including protecting LGBT rights in Canada and addressing both present and historical discrimination.[191]

On April 23, 2019, the Royal Canadian Mint launched a new dollar coin symbolizing equality with 3 million loonies placed into circulation to commemorate 50 years since the decriminalisation of homosexuality in Canada.[192]

In August 2019, Ottawa Mayor Jim Watson came out as gay in an op-ed to the Ottawa Citizen.[193]

Canada Pride Citation[edit]

The Canada Pride Citation Insignia of Honour and Badge.

In 2018, Canadian Member of Parliament Randy Boissonnault unveiled the Canada Pride Citation, a badge designed by the Canadian Heraldic Authority to be worn by LGBT members of the Canadian Armed Forces as a form of reparation for injustices historically committed against the community.[194][195]

On the subject of the Citation, General Jonathan Vance said:[194]

For many years, LGBTQ2 Canadians committed to serving Canada by wearing the uniform of the Canadian Armed Forces despite knowing they could be persecuted for just being themselves. That took courage, and as an institution, we didn’t recognize it and we didn’t defend them. The Canada Pride Citation, which can be worn proudly on our uniform, is as an enduring symbol of our acknowledgement of past injustices and our commitment to ensure that this dark chapter in our history never happens again.

Jody Thomas, Deputy Minister of National Defense, noted:[194]

With the Canada Pride Citation, we are acknowledging the historic unjust treatment of LGBTQ2 people, and the harm that it did. And we are recognizing the incredible depth of the commitment LGBTQ2 people showed to serving Canada, despite systemic discrimination. This citation is a symbol of our ongoing responsibility and determination to address barriers and make sure everyone feels safe and welcome being their whole selves.

Summary table[edit]

Right Yes/No Note
Same-sex sexual activity legal Yes check.svg Since 1969
Equal age of consent Yes check.svg Nationwide since 2019
Anti-discrimination laws in employment Yes check.svg Since 1996
Anti-discrimination laws in the provision of goods and services Yes check.svg Since 1996
Anti-discrimination laws in all other areas (including indirect discrimination, hate speech) Yes check.svg Since 1996
Anti-discrimination laws covering gender identity or expression in all areas Yes check.svg Since 2017
Same-sex marriages Yes check.svg Nationwide since 2005
Recognition of same-sex couples Yes check.svg Limited recognition since 2000
Stepchild adoption by same-sex couples Yes check.svg Since 1996-2011
Joint adoption by same-sex couples Yes check.svg
LGBT people allowed to serve openly in the military Yes check.svg Since 1992
Right to change legal gender Yes check.svg Since 2017, all 13 jurisdictions of Canada do not require sex reassignment surgery for changes to sex markers on government forms. More precise regulations vary by province and territory, respectively.
Coverage for sex reassignment surgery Yes check.svg/X mark.svg In all provinces (to a variable extent), but none of the territories[196][197]
Third gender option Yes Since 2017
Transgender identity declassified as an illness Yes check.svg/X mark.svg Some Canadian provinces/territories are using DSM 5, others continue to use DSM 4
Conversion therapy banned Yes check.svg/X mark.svg Since 2020 in Yukon[198], since 2015 in Manitoba and Ontario, since 2018 in Vancouver and Nova Scotia, and since 2019 in Prince Edward Island. Numerous cities across Alberta by means of by-laws/ordinances also ban conversion therapy on minors.[199][89]
Nationwide and Quebec ban proposed.[143]
Access to IVF for lesbians Yes check.svg
Equal access to surrogacy for all couples Yes check.svg Since 2004, the Assisted Human Reproduction Act has prohibited commercial surrogacy for all couples (regardless of sexual orientation).[200] However, altruistic surrogacy is permitted and surrogate mothers may be reimbursed for some expenses. Quebec law allows neither altruistic nor commercial surrogacy (but doesn't explicitly forbid it, and Quebec has reimbursed gay men for surrogacy costs).[201]
Commercial surrogacy for gay male couples X mark.svg Commercial surrogacy is prohibited for all couples, regardless of sexual orientation
Gay criminal records expunged Yes check.svg Since 2018[202]
MSM allowed to donate blood Yes check.svg/X mark.svg 3 month deferral period[175][176]

See also[edit]

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Further reading[edit]

External links[edit]