Assessing Analogous Grounds: The Doctrinal and Normative Superiority of a Multi-Variable Approach
![handle is hein.journals/jleq10 and id is 43 raw text is: Assessing Analogous Grounds: The Doctrinal and
Normative Superiority of a Multi-Variable Approach
Joshua Sealy-Harrington
I'm beautiful in my way, 'cause God makes no mistakes,
I'm on the right track, baby I was born this way.
Lady Gaga, Born This Way (23 May 2011)
I. INTRODUCTION
Lady Gaga's Born This Way brand of equality rights advocacy is
premised, in part, on the injustice of being discriminated against because
of personal characteristics beyond our control. Her political message has
broad appeal and a long history.' From the suffragettes to Martin Luther
King, Jr., many of the most influential civil rights advocates have made
arguments that centred on so-called immutable personal characteristics.
This popular attitude has also played a significant role in the evolution of
equality rights under the Canadian Charter of Rights and Freedoms,2
influencing the doctrine for determining grounds of discrimination
analogous to those enumerated in section 15. However, what does it
mean for a personal characteristic to be immutable, and should our
understanding of discrimination be limited to such characteristics?
The case law on this question has suffered from a lack of conceptual
clarity because of the Supreme Court of Canada's inconsistency with
respect to the legal test it describes and applies. While the Court has
Joshua Sealy-Harrington is a third-year JD student at the University of
Calgary Faculty of Law and Will be articling in 2013/14 under Justice Donald Rennie
at the Federal Court of Canada. He would like to thank Jonnette Watson Hamilton for
her tireless support during the earlier revisions of the paper, and the editors at the
Journal of Law & Equality for their helpful comments and insights.
The political message of opposing discrimination based on (allegedly) immutable
characteristics such as sexual orientation persists in popular culture and the music
industry. More recently than Born This Way, Macklemore and Ryan Lewis released
the single Same Love on 18 July 2012, which advocates for gay rights in the United
States on the basis of the immutability of sexual orientation even more explicitly than
Lady Gaga: I can't change, even if I tried, even if I wanted to ... I might not be the
same, but that's not important, no freedom till we're equal, damn right I support it.
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].](ViewImageLocal?handle=hein.journals/jleq10&div=6&collection=&method=preview&ext=.png&size=3)
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Assessing Analogous Grounds: The Doctrinal and Normative Superiority of a Multi-Variable Approach
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