BDSM discrimination case - BC, Canada

Following a ruling Tuesday by British Columbia's highest provincial court, the British Columbia Human Rights Tribunal will be permitted to proceed with a case in which a man claims he suffered discrimination because of being a BDSM practitioner. The Court of Appeal did not reach the question of whether the prohibition on discrimination because of sexual orientation in the Human Rights Code covers allegations like this. Instead, it agreed with a preliminary ruling in which the Tribunal said it "could not say that BDSM was clearly not within the scope of the meaning of sexual orientation." It therefore returned the case to the Tribunal to engage in factfinding about BDSM and then decide the applicability of the Code. Obviously, this case is one to watch -- I know of no other case in which courts have seriously considered this question.

The complaint was brought by Peter Hayes, who said the Vancouver Police Department denied him a chauffer's license due to his pagan religious beliefs and his BDSM orientation. The Tribunal decided to accept both the religion and sexual orientation complaints as a preliminary matter, and the City of Vancouver brought an interlocutory appeal seeking to have the sexual orientation claim rejected outright.

Several things are remarkable about this case. First, I submit that a claim like Hayes's would be dismissed out of hand in virtually any American jurisdiction prohibiting "sexual orientation" discrimination. This is because it is almost always defined to mean "heterosexuality, homosexuality, or bisexuality." (Sometimes other things such as "sadomasochism" are expressly excluded, but this seems redundant. It also, rather awkwardly, sometimes has the "gender identity and expression" shoehorned into it rather than enumerated separately.)

By contrast, the BC Human Rights Code contains no definition for the term. In the absence of a definition, Hayes would seem to have plain semantics on his side; the term "sexual orientation" could conceivably refer to a wide range of things. Vancouver is relying on the argument that (even without a definition), "sexual orientation" is a term of art that everybody knows only refers to homo-, hetero- and bisexuality. But according to the Court of Appeal, this is not utterly, patently obvious.

Remarkably, the British Columbia Civil Liberties Association filed a brief in support of Hayes, saying the Tribunal should seriously consider whether Code applies to BDSM, including whether a restrictive interpretation of the Code would infringe rights under the Canadian Charter and human rights treaties. The BCCLA lauded Tuesday's decision. It has also written a position paper arguing that "individuals should be free to engage in BDSM and any other consensual sexual practice without fear of government reprisal." This clear support for the rights of BDSM practitioners by a group describing itself as "the oldest and most active civil liberties group in Canada" is quite striking. In the U.S., one doesn't see state ACLU chapters, or other mainstream civil rights/civil liberties organizations, defending the rights of the BDSM community; this is left to much lower-profile groups like the National Coalition for Sexual Freedom.

The BCCLA brief - called a "factum" - is an interesting read. It discusses a line of Canadian jurisprudence saying that human rights legislation is subject to special canons of interpretation, and should be read in a broad, purpose-based way rather than in a narrow, technical way. Although the Court of Appeal didn't rely on this reasoning - because, after all, the scope of the Code wasn't squarely before them - it suggests an approach to statutes that is strikingly different from that of American courts today, and particularly our federal courts.