Happy birthday, dear Charter

Today's cliche is: Laws make us do what's legal, not what's right.

I'm thinking of George Hislop, one of the grand old geezers of Canada's gay rights movement, and yesterday's 20th anniversary of the Charter of Rights and Freedoms' equality clause. That's Section 15, the one that guaranteed that "every individual is equal before and under the law and has the right to 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."

Sexual orientation was added later, by the courts. In fact, every single federal gay equality measure was mandated by the courts. The weekend Globe and Mail featured an anniversary analysis (which I could not find online) which states that the Supreme Court of Canada at first embraced Section 15, then more recently began to panic and backtrack on decisions when conservatives everywhere began to say that judge-made law was overwhelming the will of the people. (Er, justices are appointed by the government of the day, which implies some ideological common ground, but I guess that adds too many layers of complexity.)

All this brings me back to what's legal, and what's right. The federal government is appealing a lower court decision granting a retroactive same-sex survivor pension to the widow Hislop. Nearing 80, George is still working in order to get by financially in Canada's most expensive city, Toronto. He got a patronage job sitting on some sort of municipal panel that hears monthly from landowners seeking permission to build patios. It's not enough, of course: In truth, George survives through the kindness of friends.

Gay men and lesbians who lost partners after Jan. 1, 1998, now get Canadian Pension Plan survivor benefits. But the lovers of those who died earlier are out of luck, because the federal government picked a cut-off date that doesn't include them. Like George.

When last I checked, about 400 oldsters were signed up for a class-action suit against the feds; I expect there are fewer now, because they keep dying.

George argues that the feds should have picked a different date for the cut-off: that anyone should be covered whose spouse died after April 1985 -- because that's when the equality-for-all guarantee came into affect in the Charter of Rights and Freedoms. The problem with the argument is that sexual orientation was deliberately omitted from the list of protected groups at that time. Homos were not considered equal on purpose. Sexual orientation wasn't read in by the courts until much later. But George says that doesn't matter: a promise of equality is just that.

Nonetheless, there is an important question to be answered about whether social acceptance can be backdated. The federal government is arguing that it must be allowed to decide when to make people eligible for benefits. Retroactive rights are an important issue that Parliament, and society, must tackle. I wish that meant politicians were grown-up enough to orchestrate a real debate, but they are not. They endlessly rely on the courts to make tough decisions for them.

But I don't understand why the need for a court ruling means that George Hislop -- and hundreds of other gay seniors -- are one bad day away from living in the streets. George never had a big-money job; his partner Ron Shearer supported them both so George could be a full-time gay activist, speaking out for us at a time when hatred and violence against the "sickos" were endemic.

Politicians are pigs. Yes, they need to safeguard the legal rights of government, and think through the ramifications of their actions. But their real job is to look after people. And the way to do that is to say: we're appealing this ruling because it's important to work out the issues. But we're going to give you the money you need to live out your golden years so you don't have to worry about eating cat food.


NOTE: A chunk of this this is taken from a piece I originally wrote a year ago. And I'm still pissed off.