Canada Far Ahead of U.S. in Recognizing Gay Rights : Justice: Nearly two-thirds of the provinces prohibit discrimination. The military now accepts homosexuals.

Canada has come a long way since the late 1950s, when the Mounties and the military devised what was cheerfully known as the “fruit machine”--a lie-detector-like gadget that was supposed to ferret out gays working in the civil service.

In recent years and months, Canadian progress on homosexual rights has proceeded at such a clip that some gay activists, as well as legal scholars, say the foundations are being laid for a wholly new definition of “the family” under Canadian law--one in which men may legally marry men and women marry women, one in which same-sex couples may adopt children, receive spousal pension benefits and generally be treated the same in all respects as traditional heterosexual couples.

“Canada is just light-years ahead of (gay-rights legal activities) in the United States,” said David Pepper, an assistant to Svend Robinson, Canada’s only openly gay member of Parliament.

Consider:

* Seven of Canada’s 12 provinces and territories have explicitly prohibited sexual orientation as grounds for discrimination--a high percentage compared with the seven of the 50 U.S. states that have done so.

* At a national level, Justice Minister Kim Campbell said recently that she would introduce a bill amending the Canadian Human Rights Act to proscribe discrimination against gays and lesbians. (The act had already effectively been amended by a federal court ruling.) There is no comparable proscription at the federal level in the United States, although U.S. gay activists hope that Bill Clinton’s election heralds a long-awaited amendment of the Civil Rights Act of 1964.

* A 1990 court ruling has apparently made Canada the first country in the world to offer gays and lesbians anti-discrimination protection under a national constitution.

* In October, the Canadian military lifted its ban on homosexuals in uniform. Ottawa now says it will fight entrenched anti-homosexual bias in the armed forces with sensitivity-training sessions, similar to those now given recruits on the sexual harassment of women.

By ending its ban on homosexuals in the military, Canada has come into step with the vast majority of armies in the Western world. And it has heightened the pressure on President-elect Clinton to make good on his campaign promise to end the Pentagon’s ban on gays and lesbians in uniform.

“It will take courage for President Clinton to change the policy, but it’s a decision that will be worthwhile,” said Michelle Douglas, the former Canadian air force lieutenant whose lawsuit ultimately forced Canada to drop its ban. “Once the policy changes, you won’t see a mass of people coming out and announcing that they’re gays and lesbians. That’s not why they’re in the military in the first place.”

At a time when Clinton’s pledge has begun a hot-button debate over gay rights, family values and military discipline in the United States, it is worth looking at the quiet, incremental gay-rights revolution in Canada, a country that is culturally similar to the United States.

Canada’s progress “is not (the result of) a coherent, organized strategy,” said Charles Campbell, a Toronto lawyer who has occasionally handled censorship cases on behalf of Canadian gay bookstores. Oddly, there is no central organization--such as the United States’ Lambda Legal Defense Fund, for instance--undertaking gay-rights litigation in Canada. The gains that have been achieved have been won largely by individual gays and lesbians fighting court battles on their own.

And impressive though the Canadian advances may be by U.S. standards, many homosexuals and human rights lawyers here remain dissatisfied with the pace of change. Many Canadians as individuals still cling to anti-homosexual prejudices, just as many Americans do. Gays here are still often the target of violence by extremists: In late November, a 51-year-old Montreal man was beaten to death by skinheads as he jogged through a park known as a meeting place for gays.

And the federal government, which promised in 1986 to end institutional discrimination against gays and lesbians, dragged its heels for six years before proposing earlier this month to amend the Human Rights Act. Even now, the Canadian Justice Department is fighting a variety of court challenges brought by gay-rights activists and their advocates.

“We had to drag them to this conclusion kicking and screaming,” Douglas said of the government’s decision to let gays and lesbians serve in the military.

Douglas’ successful court challenge was only the most recent in the series of gay-rights achievements in Canada.

Until Douglas brought her case, Canada forbade all gay and lesbian activity in the military, and troops were even supposed to inform on fellow soldiers whom they suspected of homosexuality. (In practice, Canada had lately been letting gay and lesbian troops remain on active duty but denying them all opportunities for promotion or transfer.)

Douglas was in all respects an exemplary young officer: She was the top graduate in her platoon the year after she enlisted; she led her class in security and intelligence training the following year, and she placed second in a class of 85 in a military police course.

But she left the military under protest three years ago after superiors grilled her about her sexual status and pressured her to identify other lesbians. When Douglas refused to name names, the air force stripped her of her top-secret security clearance, saying that her first loyalties were to the homosexual community, not to her country.

Douglas filed suit, arguing that the military’s ban on homosexuality violated Canada’s Charter of Rights and Freedoms, a 1982 document that is the near-functional equivalent here of the Bill of Rights in the United States.

“I was angry enough to not allow the military to do this to anyone else,” she said. “I was not prepared to settle out of court and just disappear.”

The military prepared a defense, even hiring retired U.S. Army Col. Darryl Henderson to testify that homosexual soldiers would damage the “cohesion” of the military, which he said “is based on very strong agreement on basic norms, basic values.”

But on the day the case was to come to trial, the government suddenly folded: It agreed to settle with Douglas, paying her about $80,000 plus her legal bills, and to comply with a court order declaring that the ban on homosexuality was a violation of the Charter of Rights.

The government might not have caved in so quickly had it not been for a growing body of legal precedent favoring Douglas’ side of the case.

In a 1990 case involving conjugal visits for gay prisoners, for instance, a federal court ruled that while the Charter of Rights did not mention homosexuals specifically, it included them by implication.

And last August, an appeals court in Ontario, Canada’s largest province, ruled that the Human Rights Act was unconstitutional in failing to offer legal protection to gays and lesbians. The court’s ruling effectively added the new protective language to the law.

In addition, the ruling opened up a new legal avenue to gay-rights activists: They could now make use of Canada’s unique system of federal and provincial human rights commissions, government bodies that investigate charges of discrimination, mediate disputes and occasionally order the impaneling of special tribunals to conduct what amount to trials. The commissions’ services are free.

With the help of the human rights commissions, gays are now bringing new court challenges, and sometimes winning.

In Ontario, for instance, the provincial human rights commission recently ordered the government to drop all references to the “opposite sex” from its definition of marriage and to offer pension benefits to the partners of gay government employees.

And at the federal level, the Canadian Human Rights Commission is assisting in the case of Brian Mossop, a gay federal employee who tried to take a day off work to attend the funeral of his lover’s father. The government grants “bereavement days” as a benefit to employees in heterosexual marriages but denied the benefit to Mossop.

Mossop brought suit, and the case has gone all the way to the Supreme Court of Canada. Observers expect a ruling by next spring.

Gay activists are watching the Mossop case closely, because a Supreme Court ruling in Mossop’s favor could have explosive results: It could bring about a rewriting of the definition of “the family” in Canada, opening the door to broadly equal treatment of gay and lesbian couples under the law.

Canadian conservatives fear that such an outcome would prompt thousands of gay couples to seek spousal benefits under the government pension plan, at a tremendous cost. Ottawa has said that as many as 50 federal statutes would have to be amended if Mossop prevails.

Justice Minister Campbell plans to prevent such a scenario by inserting a definition of marriage that does not include same-sex couples into her amendments to the Human Rights Act.

“I don’t know of a jurisdiction in the world that recognizes same-sex marriage,” she said.

In its arguments against Mossop, the Canadian Justice Department argues that he is mistaken in thinking “that homosexual relationships are in fact identical . . . to heterosexual ones.”

“Marriage,” the Justice Department went on, “remains the most important social institution for the creation of new families, and the family unit still forms the basic social unit of society.”

Gays in the Military--a World Survey

When Canada opened its armed forces to homosexuals this fall and Australia followed suit, they left the United States and Britain as the only major Western industrialized nations that bar homosexuals from the military.

A sampling of other countries’ policies on the issue:

*-France--Does not address the issue on the books, although officials say gay and lesbian military personnel almost always keep their se*ual orientation private.

*-Netherlands--Says the military “does not discriminate on the basis of sexual orientation.” Gay-awareness brochures are among the materials distributed to trainees. Still, most homosexual troops keep their sexual orientation secret.

*-Germany--Homosexuality was decriminalized in the 1970s, and since then the military has had no official objections to gays. But if an officer makes unwanted homosexual advances on a subordinate, he could be court-martialed; if the activity is by mutual consent, one or both persons will usually be transferred.

*-Britain--Has one of the tougher policies in NATO, barring homosexuality in the military as “prejudicial to good order and discipline.” While volunteers are not asked if they are homosexual, they are given an administrative discharge if found to be so.

*-Belgium--In general, no discrimination against homosexuals in the military, but gays will be rejected when they “show a sexual perversion, i.e., when it poses a problem for the people around them or for themselves.”

*-Italy--Self-professed homosexuals can be excused from military service, but the army doesn’t specifically target homosexuals. In practice, it is unlikely a homosexual would enlist.

*-Australia--Recently scrapped a ban on homosexuals in the armed forces. Government sources say they were motivated in part by Canada’s similar action.

*-Russia--Bans homosexuality in the army; until a new criminal code is adopted, homosexuality remains a criminal offense in Russian society.