Sukanya Pillay is general counsel and executive director of the Canadian Civil Liberties Association.
Should we accommodate an Orthodox religious man's request to avoid sitting next to a woman by asking the woman to switch her seat on an airplane? This is one of the questions that have arisen since reports on Monday that a Porter Airlines flight attendant asked a female passenger to move after a male passenger gestured that he could not sit beside the woman, presumably because of his religious beliefs.
There are many unknown variables in this story – but it seems that one underlying question is what should we do if there is a conflict between a religious belief and gender equality.
In my view, both rights are fundamental for a society to be grounded in respect for human dignity. Indeed, in Canada, both rights are protected by the Canadian Charter of Rights and Freedoms – but the Charter, which applies to government action, would not directly apply to a commercial airline.
Both rights are also protected by provincial human rights legislation, which applies in private-sector settings such as hotels, restaurants and even airplanes (leaving aside for the moment the jurisdictional discussion that may arise in this case, given that the incident occurred while the plane was still in New Jersey). But a solely legalistic formula isn't getting at the underlying questions.
How far do we go to accommodate a sincerely held religious belief when it comes into conflict with the equality rights of someone else? If all rights are equal and there is no hierarchy, do we figure out these questions on a case-by-case basis? In Canada, decision-makers have ruled against a bed-and-breakfast owner who refused to rent to a gay couple. But some may ask, what about religious freedom? What about the innkeeper's rights?
I do not find it particularly helpful to reduce human-rights protection solely to "accommodation" frameworks and the consequent "vetting" of solutions. To do so risks obfuscating the raison d'être of human-rights law, which is to protect and uphold individual human dignity. Throughout history, women and members of minorities (including members of religious minorities and LGBT people) have been excluded or denied their equality rights in public spaces and spheres in the name of the religious beliefs of a majority. In some countries even today, women cannot take public transportation or drive alone or attend universities. Before the civil-rights movement in the United States, black people in many jurisdictions were required to ride at the back of the bus. Interracial marriages were illegal as was homosexuality – which are still illegal in some places of the world today.
So what does this have to do with the seating request on Porter Airlines? How far should religious freedom go in this context?
Personally, I don't think that in a public or commercial space the religious beliefs of one person can be used to deny, or relegate (intentionally or not) as inferior, the equality rights of someone else. Religious freedoms are writ large and people are free to believe what they wish, and to act as they wish, short of causing harm to another. Gender segregation can and is upheld in private religious institutions freely attended by individuals – but in public spheres we must be vigilant about upholding the equality rights of all. If we wouldn't tolerate the refusal to sit beside a racialized person, we shouldn't tolerate sex discrimination, either.