At least two letters have been written to Gay Calgary complaining about how the owners of a local nightclub handle the line up outside their establishment. These letters have alleged that persons are selected based on perceived sexual orientation. People who are perceived to be straight, it is suggested, are singled out before less favorable treatment, including paying a cover charge.

These are, of course, only allegations. The owners of the establishment have not been given the opportunity to respond to any criticisms in this particular article. Nevertheless, this issue is one that has received a significant amount of debate throughout the English speaking world - whether it is “discrimination” to favour gay and lesbian persons going into a gay and lesbian establishment. In other words, can gay and lesbian people discriminate against heterosexual persons going into what is generally understood by the public to be a homosexual establishment?

There is no easy answer to this question. Neither the courts nor any human rights commissions have specifically answered this question, thus, it is certainly an open one that has yet to be decided by the authorities.

In Melbourne, Australia a gay bar was granted an exemption from its human rights laws in an important ruling that allowed security to refuse entry to heterosexuals. This ruling actually went further than excluding heterosexuals: it sought the right to exclude heterosexual men and all woman from the club.

In London, England gay bars have been specifically prohibited from excluding anyone on the grounds of sexual orientation or their perceived sexual orientation. New laws were passed in 2006 that prohibited gay bars from screening potential customers based upon their sexual orientation.

These are two examples where two different approaches were taken. There is certainly an argument to be made that gay men and/or lesbians should have a “safe space” to be without inhibition, socialize and express physical attraction to each other in a non threatening atmosphere. Clubs directed at specific ethnic origins or backgrounds are not uncommon, although they are usually “private clubs” as opposed to nightclubs.

Human rights law prohibits any discrimination on the basis of sexual orientation or perceived sexual orientation. The blanket rule would seem to suggest that one cannot discriminate against heterosexual people with respect to entry in an establishment commonly frequented by gay men. Nevertheless, human rights commissions and the courts have various exemptions and exceptions at their disposal to allow behaviour if it is justified based upon some specific principles. In particular, the Alberta human rights law states that one can contravene the act if the conduct is “reasonable and justifiable” in the circumstances. Further the Charter of Rights and Freedoms, the supreme law of Canada, requires a person claiming discrimination from being from a “historically disadvantaged group”. “Heterosexual male” is not a historically disadvantaged group, but women are from such a group.

In sum, there is no easy answer to this question. If this is in fact what the bar is doing then a good one may be able to make a logical argument to exclude heterosexual people from an establishment that is frequented by gay males and lesbians.

If you wish to send in a letter, please email it to legaladvice@gaycalgary.com. Darryl A. Aarbo can be directly reached at Courtney Sebree Aarbo, Barristers & Solicitors, 1138 Kensington Road NW, Calgary, Alberta, T2N 3P3. Visit their website at http://www.csalaw.ca. Phone (403) 571-5133. Fax: (403) 571-5134

Other than the question, all personal information (i.e. name, address, E-mail) will remain confidential. GayCalgary.com Magazine does reserve the right to alter questions for brevity and content.