State-sanctioned LGBTQ discrimination continues, advocates say

Prime Minister Justin Trudeau apologized for past state-sanctioned discrimination against LGBTQ people in Canada, but advocates argue his Liberal government could be doing more to stop it from happening now.

"I think there's a lot of work to do," said Gary Lacasse, executive director of the Canadian AIDS Society.

"We do believe that the apology was a step in the right direction, but it does not mend all the fences."

Trudeau acknowledged as much during his speech, referring to remaining restrictions on sexually active gay men donating blood and the ongoing criminalization of those who do not disclose their HIV-positive status to sexual partners, even if there is no transmission of the virus.

"The government must continue to work with its partners to improve policies and programs," Trudeau said.

The Supreme Court of Canada has ruled that consent to sexual activity can be considered null and void if the accused person failed to disclose, or lied about, his or her HIV status. The Crown must also prove the person would not have consented to sex if he or she had been aware of the HIV status.

That can lead to a charge of aggravated sexual assault — the most commonly applied, although there have been others — so long as the sexual contact has either transmitted the virus to the complainant, or put them at significant risk of contracting it.

Advocates, who argue the law has fallen far behind the science on the level of risk, were buoyed last year when Justice Minister Jody Wilson-Raybould promised to examine the issue, including reviewing current practices on laying charges and going ahead with prosecutions.

As the one-year anniversary of that promise made on World AIDS Day approaches, advocates are getting tired of waiting for change.

The Canadian Coalition to Reform HIV Criminalization issued a statement earlier this week, endorsed by more than 150 organizations nationwide, urging the Liberal government to go beyond issuing prosecutorial guidelines and reform the Criminal Code.

Richard Elliott, the executive director of the Canadian HIV/AIDS Legal Network, said one of the reasons the coalition wanted take their demand to a higher level is because provincial attorneys general have still not brought in any guidelines for how — or when — to prosecute these cases.

"If provincial attorneys general are unwilling or are unable to actually ensure that their prosecutors don't misapply or misuse that tool, then they shouldn't be allowed to have it," Elliott said.

The House of Commons justice committee intends to study next year how the criminal justice system deals with HIV non-disclosure.

The ongoing restrictions on donating blood for men who have engaged in sexual activity with other men within the past year is another issue that advocates argue undermines Liberal efforts in the LGBTQ community.

"It is discriminatory and worse than that, it allows a stereotypical myth to encourage and allow the climate for transphobia and homophobia to continue," New Democrat Leader Jagmeet Singh said Tuesday.

The previous Conservative government lifted the lifetime ban on gay men donating blood in 2013, requiring instead that potential male donors not have had sex with other men for five years.

The Liberal government last year allowed Canadian Blood Services and Hema-Quebec to reduce the deferral period to 12 months and Trudeau has tasked Health Minister Ginette Petitpas-Taylor with developing a plan for blood services that balances safety with non-discriminatory donation policies.

Liberal MP Randy Boissonnault, a special adviser to Trudeau on sexual orientation and gender issues, noted the federal government committed some $3 million to support the blood agencies as they work towards finding a way to lift the restrictions.

"Am I happy where we are? No," he said.

Meanwhile, more details have emerged of the agreement in principle reached in a class-action lawsuit launched by federal employees who were discriminated against because of their sexual orientation, gender identity or gender expression.

The details must still be finalized and approved by the Federal Court.

The Liberal government is prepared to pay between $5,000 and $150,000 to LGBTQ individuals who were investigated, sanctioned, or forced to quit or fired from the military or federal public service. The total amount is capped at $110 million.

Those affected can also apply for a personal apology and have their military service records updated to reflect the fact that they were sanctioned, quit or discharged "as a result of a wrongful historic policy of Canada" and that they were not unfit to serve.

Another $15 million is being set aside for reconciliation and memorialization measures related to how LGBTQ federal employees were treated by the government for decades after homosexual acts were decriminalized in 1969.

— With files from Kristy Kirkup