Rory Leishman:

In a landmark ruling on April 16, a five-judge panel of the Supreme Court of the United Kingdom (the country’s highest court of appeal since 2009) unanimously upheld the plain words of the Equality Act 2010 (EA 2010). Would that the Supreme Court of Canada would do the same in interpreting the laws and the Constitution of Canada.

At issue in the EA 2010 case was the correct interpretation of various bans on discrimination on the basis of sex. The appellant in the case — a Scottish feminist group– argued that these bans apply only to biological males and females. In contrast, the Equality and Human Rights Commission (EHRC) of the United Kingdom — the British equivalent of the Canadian Human Rights Commission — insisted that, in most cases, the bans on sex discrimination in the Act also apply to certified male and female transsexuals.

At the outset of the EA 2010 ruling, the U.K. Court observed that it had no constitutional authority to set public policy on the rights of transsexuals or any other subject. Therefore, the Court said: “The principal question which the court addresses on this appeal is the meaning of the words which Parliament has used in the EA 2010.”

The Court proceeded to note that several sections in the Act such as the prohibitions of discrimination against pregnant and breast-feeding women can obviously apply only to biological females. Even the EHRC conceded that these provisions could not apply to biologically male, transsexual women, but still insisted that other sections of EA 2010 do apply to transsexual women, thereby entitling them, for example, to use female-only bathrooms, sleep in all-female dormitories and take part in all-female sporting competitions.

The UK Supreme Court rejected this argument on the ground that there is nothing in the text of the Act to suggest that Parliament intended some sections to apply to transsexuals, but not other sections. In conclusion, the Court held that the plain words of the bans on sex discrimination in the Act, considered in the context of the Act as a whole, apply only to biological males and females.

The Court also observed that if, in the alternative, the Act applies to transsexuals as contended by the EHRC, a biological male who identifies as a transsexual woman would have a right to join a support group for lesbians. In the opinion of the Court, such an outcome would be simply absurd.

In interpreting EA 2010, the Supreme Court of the UK adhered to the principles of statutory interpretation enshrined for hundreds of years in the Common Law that obligates the courts to uphold the plain text of statutes as enacted by the legislative branch of government. The Supreme Court of Canada used to do the same.

However, following enactment of the 1982 Canadian Charter of Rights and Freedoms, Canada’s top court set off on a disastrous new course: Instead of simply upholding the law as written, it took it upon itself to change the laws and the Constitution through interpretation.

Thus, in Vriend v. Alberta, (1998), the Supreme Court of Canada ruled that the failure of the Alberta Human Rights Code to include a ban on discrimination on the basis of sexual orientation violated the equality rights of Canadians in Section 15 of the Charter. Both the Code and the Charter include a ban on discrimination on the basis of sex, but there is not now, and never has been, any similar provision in either the Code or the Charter banning discrimination on the basis of sexual orientation. The Court deemed this omission unfair to homosexuals, so it changed the law.

A few months after the Vriend ruling, the British Columbia Human Rights Tribunal held that discrimination against transsexuals violates the ban on discrimination on the basis of sex in the British Columbia Human Rights Code. Consequently, the Tribunal ordered a group called the Vancouver Lesbian Connection to pay $3,000 to Susan Mamela, a transsexual woman previously known as Eric Friday, to compensate her for the “injury to dignity” that she suffered when the all-female, lesbian association banned her from their group because she was “too aggressive and mannish.”

Consider the contrasts:

The Supreme Court of the UK upholds the plain text of the law as enacted by Parliament. The Supreme Court of Canada changes the law and the Constitution as the judges deem fit.

The Supreme Court of the UK refrains from setting public policy. The Supreme Court of Canada has taken to arbitrarily dictating public policy on everything from abortion and euthanasia to prostitution, same-sex marriage and the length of appropriate prison sentences for mass murderers.

The United Kingdom is a democracy governed by the rule of law. Canada is a judicial autocracy ruled over by the Supreme Court of Canada.