The Challenging Parallelism of Rights Claims Based on Religious Identity and Sexual Identity in Canada

Abstract

In recent years, some scholars of law and religion in Canada have argued that only objective characteristics of oneself that “cannot be changed” (e.g., race), as opposed to “deeply personal characteristics or feelings” (i.e., sexual orientation and gender identity), should be considered as a valid basis for an equality claim (Benson, 2013; Buckingham, 2018; Bussey, 2020). This argument is regularly mobilized to weaken the equality claims of LGBTQ+ people when they conflict with the religious practices of a group. This paper contends that this argument is unlikely to succeed in Canadian courts and, more generally, explores why claims for religious freedom tend to fail when cast against the right to equality of LGBTQ+ people. Drawing on Supreme Court of Canada jurisprudence, I show that religion is construed analogously to sexual orientation and gender identity in law; that is to say, it is constructed as a category of identity that is primarily dependent on a self-assessment. Viewed in this way, not only is religion less likely to be robustly protected in law but arguments seeking to diminish the value of “deeply personal characteristics or feelings” are likely to weaken the protection of religion itself.

Presenters

Marie-Eve Melanson
Assistant Professor, Department of Religious Studies, Université du Québec à Montréal, Quebec, Canada

Details

Presentation Type

Paper Presentation in a Themed Session

Theme

2025 Special Focus—Fragile Meanings: Vulnerability in the Study of Religions and Spirituality

KEYWORDS

FreedomOfReligion, EqualityRights, LGBTQ, Canada