Skip to Main Content

Sexual orientation recognized as a ground of discrimination under the Charter

May 25, 1995

Supreme Court holds sexual orientation is an analogous ground of discrimination under s. 15 of the Charter

In Egan v. Canada, the Supreme Court of Canada held that sexual orientation is an analogous ground of discrimination under the equality rights provision of the Canadian Charter of Rights and Freedoms.


Jim Egan and John Nesbit were a gay couple who began living together in a committed relationship in 1948. In 1986, when he turned 65, Egan began to collect old age security benefits. When Nesbit turned 60, he applied for a spousal allowance under the Old Age Security Act. Under that statute, the allowance was generally available to spouses between age 60 and 65, provided the couple’s income fell below a certain level.

Nesbit was denied a spousal allowance because he did not fit the opposite-sex definition of marriage in the Act. Egan and Nesbit challenged the constitutionality of the Act, arguing that the opposite sex requirement violated their equality rights under s. 15 of the Canadian Charter of Rights and Freedoms.

The trial judge dismissed the case, and the British Columbia Court of Appeal agreed. Egan and Nesbit appealed to the Supreme Court of Canada.

The Supreme Court’s decision

Section 15 of the Charter does not list sexual orientation as a ground of discrimination. However, in its previous decision in Andrews v. Law Society of British Columbia, the Court held that the Charter might protect against discrimination on other grounds analogous to those in s. 15.  Faced with Egan’s and Nesbit’s claim of discrimination, the Court unanimously held that sexual orientation was an analogous ground of discrimination under s. 15 of the Charter. Indeed, the Attorney General of Canada had conceded this point.

A majority of the Court (5 of the 9 judges) held that the opposite-sex definition of spouse discriminated on the basis of sexual orientation. Four of those five judges held that the discrimination could not be saved under s. 1 of the Charter and would have granted the appeal and ordered the Government to amend the legislation.

However, one of the five judges who agreed the Act discriminated against Egan and Nesbit decided to recognize an “incremental” approach to the issue. He essentially held that the legal recognition of gay rights was in its infancy and it was too soon to force Parliament to recognize those rights in this case. Therefore, he held that the discrimination was justified as a reasonable limit under s. 1 of the Charter. His decision on this issue meant that five judges considered the legislation to be constitutional. Consequently, Egan and Nesbit’s appeal was dismissed.

While this loss was disappointing, the case is significant because of the Court’s holding that sexual orientation is an analogous ground under s. 15.

Click here to read the Court’s decision.

Steven Barrett and Vanessa Payne represented the intervener, Canadian Labour Congress and Cynthia Petersen represented the intervener Egale Canada Inc.


Steven Barrett, Vanessa Payne

Practice Areas

Appeals & Judicial Review, Constitutional Law