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.