Grounded in moral panic
Donn Short is an assistant professor of law at Robson Hall. He is the founding editor-in-chief of the Canadian Journal of Human Rights and the author of Don’t Be So Gay! published this year by UBC Press, a book dealing with homophobic bullying. He presented his views on bullying at Visionary Conversations, and he shared some thoughts with UM Today.
Most, if not all, of the criticism aimed at Bill 18 can be traced to fears that the bill conflicts with religious freedoms. Such concerns are without a sound legal basis, the effects of Bill 18 are Charter-proof. Any fears that accepting equality claims based of some students on grounds of sexual orientation – which is part of what Bill 18 does – may result in interference with religious worship are alarmist and grounded, not in law, but in a moral panic.
Constructing safe schools for sexual minority students ensures that these students have access to education the way all other students do. For example, permitting students to form GSAs, gay-straight alliances, in fact, making a school obligated to permit such a group in any school, has no impact on the belief systems of other students, their parents, or anyone else.
This was the same argument that was raised nine or ten years ago in relation to same-sex marriage. The argument was misguided then and it is misguided now. The Supreme Court of Canada made it very clear in the Reference Re: Same Sex Marriage that merely recognizing the equality rights of one group, sexual minority students in this instance, does not in itself constitute an infringement of the equality rights of another – those asserting religious freedom rights. It is a non-issue.
To put the issue in terms of Bill 18, the purpose of which is to address the pervasive problem of bullying in schools, including permitting students to establish GSAs, the bill does not infringe freedom of religion, under section 2(a) of the Charter, because its provisions do not impose religious beliefs on anyone.
The purpose of section 2(a) protection is to safeguard against state action that would infringe upon the freedom to hold and express religious beliefs and to engage in religious practices and manifestations of religious beliefs. In R. v. Big M Drug Mart Ltd., however, a landmark decision from the Supreme Court of Canada, the Supreme Court qualified freedom of religion, acknowledging that there were limitations and considerations that must be taken into account when determining the content or limits of section 2(a):
Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or conscience.
Given the ameliorative goals of confronting the problem of bullying, particularly homophobic, transphobic and gender-based bullying in schools, surely the fundamental rights and freedoms of others, and their protection, lies at the heart of what Bill 18 envisions.