More censorship or less discrimination? : Sexual orientation hate propaganda in multiple perspectives / Jonathan Cohen

J. Cohen

If hate propaganda pits anti-censorship advocates against anti-discrimination advocates, sexual minorities occupy an ambiguous position in this debate. Because they often find themselves fighting against censorship -- and have, at least in the United States, made more gains in this area than in that of equal protection -- sexual minorities have traditionally promoted strong freedom of expression values. However, recent advances in jurisprudence interpreting the Canadian Charter of Rights and Freedoms, particularly the inclusion of sexual orientation as an analogous prohibited ground for discrimination under section 15, have prompted sexual minorities to pursue a vigorous anti-discrimination agenda. This agenda recently culminated in the Supreme Court of Canada_s decisions in Vriend v. Alberta and M. v. H., which, by reading sexual orientation into a provincial human rights statute and extending spousal support to same-sex couples, provide considerable authority for extending Canada_s Criminal Code hate propaganda provisions to sexual minorities. At the same time, a growing body of comparative and international law-in particular the United Nations Human Rights Committee_s decision in Toonen v. Australia-has extended the norm of anti-discrimination to sexual minorities. These developments, combined with Canada_s well-established commitment to criminalizing hate and its emerging commitment to substantive equality, suggest that sexual orientation hate propaganda is best analyzed as an issue of discrimination, not censorship. This conclusion should commend the extension of hate propaganda measures to protect sexual minorities to even those gay rights activists who dread further incursions into civil liberties.