David Robbins | CUPE Communications
In April of 1998, the Ontario Court of Appeal ruled that the words “or same sex” be read into the Income Tax Act definition of spouse for pension plans. These three little words marked a massive victory for lesbian and gay rights – and fueled the growing movement for equality for gays and lesbians across the country. The federal government declined to appeal the decision. Over the decades, unions and social movements for equality have taken their struggles to the streets, the bargaining tables and the courts. CUPE has a long and proud history of fighting for respect and justice on all these battlegrounds, including the fight for equality for lesbians and gays.
How did this landmark change happen? It happened because two lesbian CUPE employees, in partnership with Canada’s largest union and with the support of the Court Challenges Program, went to court to fight for their pension rights.
They came, they litigated, and they won - laying another paving stone on the path towards equality for all under the Canadian Charter of Rights and Freedoms. They wanted their partners to be afforded the same protections as the spouses of every other member of CUPE’s staff.
The change meant that if these employees were to pass away, their respective partners would receive their pension benefits – just like the survivors of their straight co-workers would.
In the summer of 1990, Nancy Rosenberg was staring at the CUPE human resources form she needed to fill out to register for her pension and benefits. She could “tick” single, married, or divorced – but she was none of these. Still, she hesitated over the “single” box. Would she “play the game” once more, and deny her reality?
No, she would not. Stung from a recent heart-rending battle to get access to her same-sex partner who was sick in hospital, Nancy resolved to ask her employer to recognize her partner, and the common-law nature of their relationship. CUPE stepped up and agreed to her request. The union then changed its own definition of spouse to include same-sex couples, at least as far as their own pension policies were concerned.
However, because the CUPE pension plan was registered with the federal government, the definition of spouse had to correspond with the definition of spouse in the Income Tax Act. The Act defined spouse as someone “of the opposite sex.” Revenue Canada advised that if CUPE insisted on amending its pension plan definition of spouse, that the CUPE pension plan would be de-registered. This would have had disastrous consequences for all CUPE employees, and, same-sex partners still wouldn’t be eligible for survivor benefits.
To change this, it would mean going to court to challenge the definition under the equality provisions of the Canadian Charter of Rights and Freedoms.
Nancy was tired of all the “indignities and slights” she and others were made to suffer. She was fed up with all the different ways she experienced discrimination as a lesbian.
Her colleague Margaret Evans felt the same way. As CUPE employees – Nancy as a legal officer, Margaret as a collective bargaining researcher – they both paid into the same pension plan as every other CUPE worker. Both were lesbian, and both had long-term partners who, they felt, should be entitled to receive their pension benefits should they pass away.
“At the time, a number of issues were affecting our members, especially people from the LGBTTQI community,” Margaret recalls. “This was early 1990s. There was a lot of discrimination against people around HIV-AIDS, around benefits, and around pensions.”
Margaret described a particular phone call from a union representative who represented a member working as an RPN in a northern Ontario hospital. The member’s partner had recently passed away from AIDS-related complications and his coworkers no longer wanted to work with him. He was shunned, and forced to post into a lower classification job so he wouldn’t be around them.
Such was the climate at the time.
But this hostility also gave rise to courage – and solidarity. When Nancy and Margaret wanted to take legal action, they had the full support of CUPE as their employer – and the backdrop of powerful movements for lesbian and gay rights. Social movement activism was happening all over the place, Nancy says. There were a lot of things happening at once.
“We were doing different things to get the union movement involved,” she says. “Margaret and I put together a bargaining kit for gay and lesbian rights. There was almost no existing research on equality rights and benefits, including how to deal with insurance companies.”
The kit was the first of its kind – very popular and widely distributed, Nancy says, noting that provincial human rights commissions across the country ordered copies. At around the same time, CUPE members created the union’s first Pink Triangle Committee, and other unions were doing likewise.
As the 90s came to a close, this greater level of activity and visibility was leading to greater acceptance of gay and lesbian people – and their family units – inside the union and in the wider society. And just as this acceptance was finding expression among unionists, it was also being shared by some of Canada’s judges.
The Ontario court ruling reflected this. Here’s an excerpt from the decision published April 23, 1998:
Aging and retirement are not unique to heterosexuals and there is nothing about being heterosexual that warrants the government’s preferential attention to the possibility of economic insecurity… It is difficult to see a rational connection between protecting heterosexual spouses from insecurity on the death of their partner and denying cohabiting gay and lesbian partners the same protection. The sexual orientation of surviving partners can in no way be seen as any more relevant to the entitlement than would be their race, colour or ethnicity.
Lawyer Peter Engelmann acted on behalf of CUPE, Nancy, and Margaret in the case. He is a longtime labour and human rights lawyer at Goldblatt Partners in Ottawa.
He says it was a tremendous feeling when the decision came down.
“By that point in time, I had been doing human rights law since the mid-1980s and it really felt like we – because it was a combined effort – that we had advanced the law,” he says. “It was wonderful to work with an employer that was progressive and wanted to be inclusive in its pension plan. I was elated for Nancy and Margaret – and also for gay men and lesbians who were in relationships and wanted to leave retirement benefits to their spouses.”
The victory was long in the making, Peter says, since the appeal decision was the deciding chapter in a series of related legal cases that did not conclude favourably over the course of the early-to-mid-1990s. But Nancy’s and Margaret’s case was different.
“It was because CUPE, as their employer, was trying to register its pension plan to allow same-sex spouses to receive benefits. CUPE was driving the litigation, and this made all the difference.”
CUPE’s support was key, as was the fact that Peter and his team were in front of a very “good bench” of progressive, active and intellectual judges who had loads of questions and were very engaged, he recalls. He says he had a very good feeling about it.
Still, with so much to celebrate, there is more to be done, Peter says.
“The LGBTTQI community is doing tremendous work on transgender rights and there is a lot of work that needs to be done,” he says. “Some of the worst cases of harassment I’ve ever been involved in as a labour lawyer, involve transgender individuals.”
CUPE’s National President Mark Hancock says CUPE is proud of its record in defending and promoting equality rights as part and parcel of the union’s work defending labour and social rights.
“We celebrate our progress, and we know there is more to be done,” Hancock says. “We know that too many people face hate, violence and exclusion. That’s why CUPE will continue to stand with all members of our Canadian family, no matter their sexual orientation or their gender expression.”
Trade unions are at the forefront of pushing the envelope for human rights, Peter argues. So, it’s only fitting for CUPE members to be engaged in this work.
“Unions have been at the forefront of getting human rights acts strengthened, and getting protections for sexual orientation and gender identity – just as unions were at the forefront making sure there were laws against child labour, making sure there was minimum wage and pay equity. It’s key to what unions do.”