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Document Type

Article

Abstract

The differing paces of gay rights progress around the globe, even between otherwise culturally and politically similar states, raises important questions regarding why this disparity occurs. Previous literature on the attainment of gay rights protections in Canada have highlighted the great impact had by the addition of the Charter of Rights and Freedoms to the Constitution Act, 1982. Additionally, comparative studies have argued that it is the entrenchment of the Charter which has made the crucial difference between the pace of gay rights in Canada as opposed to other states, such as Australia. This paper argues that, despite not having been explicitly enumerated as a protected ground, gay rights have in fact been progressed by the Charter in three ways.

This paper will first review the newly opened path for rights litigation brought forth by the Charter’s empowerment of the courts. Secondly, the conflicting effects that the litigious approach had on the gay rights movement will be considered, with specific note of its effect on the question of gay liberation or assimilation. Finally, this paper will discuss the ways in which the Charter’s impact is still of importance to ongoing and future gay rights cases concerning the balancing of opposing rights, particularly in its recognition of sexual orientation as having similar importance to other protected grounds.

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