The first paper I ever published was about access to health care among Ontario’s homeless population. I explored a cross-section of factors, such as mental illness, gender and race. One of the lessons that stands out most from my research is that discrimination in the health care system is very real, and its consequences profound. As well, discrimination can be subtle, it may be indirect and unintentional, and even performed by well-meaning individuals.

Refusing to treat a person on discriminatory grounds can lead to long-term effects on a person’s health. The patient may have difficultly building a trusting relationship with health care providers and may delay seeking health care until a medical problem is very advanced. The same issues can arise among LGBTQ patients who experience discrimination. A recent study (which I blogged about here) found that transgender patients avoid medical care because of discrimination and/or the expectation of discrimination.

Acknowledging that there are health consequences that flow from discrimination, the question remains: is a doctor (or other health care provider for that matter) allowed to refuse to treat patients because of their sexual orientation or identity?

In Ontario a refusal to provide health care services solely on the basis of a person’s sexual orientation or identity is contrary to the law. The Human Rights Code  very clearly states that:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

Some of the health regulatory colleges have reiterated this message. The College and Physicians of Surgeons of Ontario states that “Where physicians choose to limit the health services they provide for reasons of conscience or religion, this may impede access to care in a manner that violates patient rights under the Charter and Code”.

Unfortunately, there are times when an unwillingness to treat is masked under a seemingly legitimate rationale. The Winnipeg couple mentioned above was told their doctor did not have “experience” treating lesbians. I have personally seen other cases where a lack of clinical competence is cited as the reason for the refusal. For example, a refusal to provide care to a person recovering from sex reassignment surgery.

Fortunately, a person who experiences discrimination in the health care system has options to hold the discriminator in question accountable. Some of those options do not have to be very costly for the patient, though they will often require seeking legal advice and being willing to confront one’s health care provider, which is no easy task for a person who feels marginalized and discriminated against.

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Many members of the legal community think that it is utterly unacceptable for a law school to exclude gay and lesbian students, or to condone such conduct. After all, law schools are institutions that teach students about human rights, equality and the Canadian Charter of Rights and Freedoms. On the other hand, some people feel the institution should be permitted to have the covenant and operate a law school because it is a matter of religious freedom.

It has been pointed out that the prohibition is on premarital sex outside traditional marriages, and therefore discriminates against non-married heterosexual students as well.

Across the country legal regulators have been trying to figure out how to respond and, in particular, whether to entitle law graduates from that school to practice in their respective provinces and territories. Some have taken a “wait and see” approach”, while others have taken a “go with the flow” approach. A few have taken hard stances against the proposed law school.

Ontario

The Law Society of Upper Canada (“LSUC”), Ontario’s regulator of lawyers, voted not to accredit the university’s law school. This means that graduates of Trinity Western would not be allowed to practice law in Ontario. The LSUC’s decision is currently being challenged in court. Much of the court challenge is about whether the LSUC has the legal authority to deny accreditation.

British Columbia

In October 2014 the Law Society of British Columbia decided not to approve the proposed law school. Trinity Western is currently challenging that decision through the courts.

Nova Scotia

The Nova Scotia Barristers’ Society (“NSBS”) voted to “recognize law degrees to be granted by the proposed law school at Trinity Western University only if the institution changes its policy on student conduct”. This decision was challenged by Trinity Western University and, like the case in Ontario, focused on the legal authority of the NSBS to make the decision it did. The judgement was released in January 2015. The Court stated the following:

For many people in a secular society religious freedom is worse than inconsequential. It actually gets in the way. It’s the dead hand of the superstitious past reaching out to restrain more important secular values like equality from becoming real equality. A more progressive society, on that view, would not permit any incursions by religion into public life or would at least limit those incursions to those by religions that have belief systems and practices  that are more consonant with mainstream morality. The discomforting truth is that religions with views that many Canadians find incomprehensible or offensive abound in a liberal and multicultural society. The law protects them and must carve out a place not only where they can exist but flourish.

The Supreme Court of Nova Scotia decided that the NSBS was not allowed to restrict Trinity Western law graduates from practicing in Nova Scotia. While it has the authority to regulate the practice of law in the province, it does not have “the power to require universities or law schools to change their policies”.

Conclusion

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For example, a gay male couple having a child through ART must pay for fertility medications, medical procedures relating to retrieval of the egg from the donor, in-vitro fertilization (IVF) with the donated egg and their own sperm, and the transfer of the embryo into the surrogate. In addition to medical costs, there are legal fees and sometimes agency fees (if an agency was used to help find the third party donor or surrogate). In parts of the world where it is permissible to pay donors and surrogates, there are also costs incurred for travel and payment of the third party (which is prohibited in Canada).

Naturally intended parents wish to reduce their costs as much as possible. One of those ways is to apply for the Medical Expense Tax Credit when filing their taxes. The credit is used to reduce the amount of tax owed to the government. However, not all medical expenses are eligible.

A recent decision from the Tax Court of Canada provided some clarity about what expenses are allowed in the context of surrogacy.

A gay male claimed a medical expense tax credit for expenses totalling $80,808. Nearly 80% of that amount was disallowed because it represented payment to the surrogate mother and medical expenses incurred by the surrogate. Under Canadian tax law the credit only applies for expenses incurred in respect of the patient, and only the taxpayer filing and his/her spouse and dependents are included in the definition of patient.

However, $16,675 for in-vitro procedures was allowed, which is logical because IVF is included in the list of eligible medical expenses.

The man argued that gay male couples are being discriminated against by Canada’s tax laws, and that the tax law infringed upon his right to equality under the Canadian Charter of Rights and Freedoms. He argued that “because gay male couples do not have ovaries to produce eggs and wombs in which to gestate a foetus, they must work with surrogates, which heterosexual and female gay couples do not have to do.” On a practical level he was correct, as having a child through ART is more expensive for gay males than anyone else.

However, the Court concluded that surrogacy fees are not eligible for the medical expense tax credit for anyone, gay or straight. Therefore, it was decided that the law does not infringe upon his Charter rights, and he was not able to deduct medical expenses relating to the surrogate or payment of the surrogate.

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Here is what happened…

A cisgendered woman named Karen rented a retail booth and sold candles at a market in London, Ontario. One day she had her roommate operate the booth. The roommate brought two friends with her; all three women identify as transgendered.

The manager at the market received a complaint about the women lighting incense at the booth. He asked them to put out the incense, which they did. He received a subsequent complaint from another vendor about lost sales due to discomfort in the presence of one of the women (who was also shopping at the market).

That night the manager called Karen on behalf of the owner and gave an ultimatum – remove her business from the market, or remove her friends from her booth. According to Karen, terms like “those people,” “it’s not right,” and “it’s not normal” were used in the discussion, leaving Karen shocked and sickened. She decided that she could not maintain her booth at the market. She later testified that “she never asked to be an advocate for the cause but could not continue operating her business at the market because it felt wrong.” In addition to the emotional impact, the decision to stop operating her business at the market came at a financial cost.

The four women brought a complaint to the HRTO.

The HRTO decided that all four women were discriminated against by the corporation that owned the market and the owner himself. Karen was awarded $20,000 for injury to dignity, feelings and self-respect.

The roommate testified that the event “slowed her transition; that she went back into her shell and isolated herself; and began to question again whether she could be herself and whether she was accepted for who she was.” She was awarded $10,000.00 for injury to dignity, feelings and self-respect. The awards would likely have been higher had the women supplied supporting medical evidence and financial documents.

The other two friends were awarded $5000 each as monetary compensation for injury to dignity, feelings and self-respect.

In addition to owing money, the owner and his management staff were also required to take online human rights training and review the Ontario Human Rights Commission’s Policy on preventing discrimination because of gender identity and gender expression (which I previously blogged about here). They also had to ensure people who identify as transgendered have access to the washroom facilities of the gender with which they identify.

This case is a victory not only because the three transgendered individuals were successful in their applications, but because an ally took a stand against discrimination by association and was awarded for doing so. It demonstrates that the law prohibiting discrimination on the basis of gender identity and gender expression (introduced only in 2012) will be interpreted broadly and that there are real consequences for discriminating on the basis of gender identity.

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