In his paper Queering Schools, GSAs and the Law: Taking On God, Donn Short, a law professor at the University of Manitoba, argues that the law should be used for the "queering"of Canadian schools.
Following a cursory consideration of the controversy over Ontario's Bill 13, the Accepting Schools Act, and its mandated implementation in Catholic separate schools as well as non-sectarian public schools, Short argues that the common understanding of denominational education rights set out in the Constitution Act, 1867 is wrong and that freedom of religious expression should be limited. In his words, "freedom of religious expression needs to be a little less free."
Short's presentation of the law relating to denominational education rights, freedom of religion and equality rights is inaccurate and, at best, self-serving. The proposition to "queer" Canadian schools, and his argument for it, is convoluted. His representation of a basic Canadian "fundamental freedom," freedom of religion, is troubling.
Bill 13, at first blush, appeared to be a laudable piece of legislation. The preamble set out a number of worthy purposes, including the promotion of safe and inclusive schools for all students. It proposed to implement some measures to that effect, such as teacher training and mandatory reporting requirements for bullying. However, some of its content caused concern for Catholic parents and educators.
For example, despite a stated concern for all, Bill 13 extended preferential protections to LGBTTIQ (lesbian, gay, bisexual, transsexual, transgender, intersex, queer and questioning) children and groups over the more than 90 per cent of children bullied for other reasons. It also required all schools in receipt of government-administered funding—including Catholic separate schools—to establish Gay-Straight Alliances (GSAs) if asked by a student to do so.
Many Catholics, and those who support fundamental religious freedom, challenged the government to consider amendments that would respect Catholic religious doctrine. The mandatory imposition of GSAs and other policies without means for adapting them to Catholic doctrine ignores the schools' constitutional denominational rights. Many, including gay students, raised questions regarding the focus on LGBTTIQ students when Canadian research clearly demonstrates children are bullied for a wide variety of reasons, with sexuality and orientation among the least common. The legislation failed to address all forms of bullying as being equally heinous.
These concerns were brushed aside. The bill's amendments came into effect on September 1, 2012. The question that lingers is whether Bill 13 was really about eradicating bullying in Ontario's public schools, protecting all students.
Short suggests that it was not. In his paper, he enfolds anti-bullying legislation such as Bill 13 into a broader strategy to necessarily "queer" schools. To do so, he argues, there will be an "inevitable confrontation with religion." There is a need to "tak[e] on God."
To "queer" schools, according to Short, is "to make them safer by aiming at the transforming of the heteronormative culture that now ‘others' queers and privileges ‘normal.'" In order to make schools safer, he asserts that freedom of religious expression must be curtailed. Short does not advocate tolerance or pluralism—two dominant cultural concepts developed from Christian precepts of loving one's neighbour and respecting all because they are made in the image of God—but rather advocates for the imposition of a specific worldview onto all schools and, consequently, onto all children, parents and educators. Dissent or disagreement is not permitted in the "queering" of schools. Indeed, Short submits that to permit a parent to withdraw a child from "queer" instruction would be a human rights violation. And here will be the "inevitable confrontation" he describes, although the confrontation, I suggest, is not simply a shaking of the "queer" fist at God or religion, but also at parents, guardians and educators.
To "queer" our schools—those supported by taxpayer funding and selected for student attendance by parents—is to transform our schools. The purpose of "queering" schools is not to ensure that schools are a safe environment for all children. What Short proposes is far more complex and engages social, religious, moral, philosophical and legal questions—the most basic of which is "who determines what a child ought to be taught?" While government plays an important role in developing and delivering curricula and in the distribution of funds collected from public and separate-school-supporting taxpayers, the law is clear that parents are the primary educators and primary authority of their children.
To impose one worldview in all schools, with its accompanying concepts and precepts, without consulting parents is a violation of parental rights to determine the education of their children. To disallow accommodation or exemptions when this new worldview is imposed onto an established education structure that is constitutionally recognized as having a separate but societally compatible and acceptable worldview is a violation of the religious freedom and constitutional denominational rights of Catholic separate schools.
Short's analysis is flawed. His conclusions are not supported by law.
Short suggests religious claims "primarily seek to deny inclusion" and therefore "religious accommodation is desirable in cases where it facilitates inclusion and not the exclusion for others." Desirable to whom? The religious who are required to adjust their beliefs and practices to accommodate being "queered"? Thankfully, this is not the status of the law in Canada.
Freedom of religion and conscience is a fundamental freedom under the Canadian Charter of Rights and Freedoms. Freedom of religion is not about exclusion or inclusion, but rather about sincerely held beliefs, accepting that not everyone in Canada shares the same beliefs. This is important. While many religious traditions encourage invitation, all religious traditions espouse fellowship and community with other co-religionists; and the law protects this communal aspect of religious freedom.
The Supreme Court of Canada has defined this fundamental freedom as being "the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination." Short's conclusion that freedom of religion is desirable only in cases where it facilitates inclusion of those who have different beliefs is not founded in the law and would void the freedom from having substance or meaning. The purpose of freedom of religion, as described by the Supreme Court of Canada, is to provide individuals with the right to hold, declare and manifest their beliefs by worship and practice. Freedom of religion also includes the right to transmit one's faith to our children and to congregate or associate with individuals who share those religious beliefs. To argue that this freedom should only be provided when there is no difference of belief by others is to render it meaningless.
Short inaccurately frames religious freedom, or "religion-based claims," as being "grounded in excluding others from participation in public space, namely queers and queer students." In contrast, he says, "Charter claims based on the basis of discrimination grounded in sexual orientation are expansive, exclusive claims that seek to increase participation in the public sphere."
Such a statement demonstrates Short's lack of understanding of religious belief, religious communities and the law in regard to religious freedom. When a group of individuals who share a religious belief congregate and associate, they create and form a religious community. If that community, for example a Catholic school, maintains certain criteria for membership and participation, such as belief and adherence to the Catholic faith, then the community is in no way seeking to exclude "others from participation in public space" but rather from private spaces into which the community may choose to invite others.
Ironically, Short's proposed "queering" of schools, by his reasoning, would exclude any person who may disagree with him from both public and private spaces. He argues that GSAs are inclusive and Catholic schools are exclusive. However, how would he react to a student seeking to share his or her Catholic-inspired beliefs on marriage and sexuality at a GSA?
According to Short, denominational rights do not preclude the "queering" of Catholic separate schools or the imposition of GSAs in them. His argument, while clever, is not legally defensible. It goes as follows:
A. Section 93 of the Constitution Act, 1867 established a separate school system;
B. Section 93 crystallized denominational rights at the time of Confederation;
C. Section 29 of the Charter states that nothing in the "Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools" (as crystallized in 1867);
D. Section 15 of the Charter, which guarantees equality rights, now includes sexual orientation as an analogous (and advancing, not crystallized) ground; and
E. Because there was no right in Catholic school boards to control extracurricular activities or clubs, including GSAs, at the time of Confederation, no such right exists now and the "denominational rights" of the school do not therefore trump the section 15 equality rights of "queer" students.
Short makes this argument by relying on a few select decisions, including and in particular the decision in Hall (Litigation guardian of) v. Powers. The Hall case involved a male student who was barred from attending his Catholic high school prom with his boyfriend. Hall, the student, sued the school. In the course of a motion for an interlocutory injunction, Justice R. MacKinnon of the Superior Court of Ontario rendered a decision permitting Hall to attend the prom with his boyfriend.
It is important to note that the decision rendered in the Hall injunction was not determinative of the student's Charter claim, nor does it offer any legitimate precedential value. Decisions on injunctions are generally written quickly, with limited evidence and little reference to the law. Because of their urgent nature and the cursory manner in which they are rendered, they play little, if any, jurisprudential role in our legal system.
Normally, in a case where an injunction has been granted, the beneficiary of the injunction (Hall) has the burden of demonstrating at trial that the injunction was rightfully granted. If they fail, there are significant cost consequences. In Hall, the case never went to trial because the student abandoned the case after attending prom. Despite this, and despite the fact that Justice MacKinnon's means of analysis (investigating and evaluating Catholic doctrine) has been soundly rejected by the Supreme Court of Canada, Short relies heavily on the Hall injunction to support his weak argument for the legal imposition of GSAs on Catholic separate schools.
The consideration of long-standing and well-established jurisprudence leads to different conclusions as to whether Catholic boards can regulate extracurricular activities. Jurisprudence has maintained that Catholic school boards have the right to maintain a Catholic culture in their schools. This has been confirmed in cases affirming a board's right to ensure that its teachers adhere to Catholic doctrine. Additionally, school boards may be vicariously liable for the actions of any clubs meeting on school property, using school supplies and infrastructure; if the club is meeting on campus, the school's approval is required.
Short's reasoning and legal analysis are flawed. He argues that religion-based claims exclude others (namely "queers") from the public square, and that sexual-orientation-based claims expand and include participation in the public sphere. Pluralist democratic principles make it clear that there is room for both in the public square. He then proposes imposing compulsory teaching and programs onto Catholic separate schools (a somewhat complex private sphere, where funding is collected from separate-school supporters, not the public, and distributed by the government). Finally, he proclaims parents wanting to exclude their children from certain activities and indoctrination to be violators of human rights.
In his modified version of our free and democratic society, Short leaves no room for the existence of diverse opinions or the accommodation of different beliefs. In fact, despite writing about pluralism and human rights, he disallows living out the Charter right to religious freedom. Short does not hesitate to curtail fundamental freedoms of one group (those who hold and manifest religious beliefs) in order to promote the beliefs of another, thus imposing his own hierarchy of rights.