(L to R): Dean Paul Paton, Patricia Paradis, Dr. Kris Wells, Dr. Kent Donlevy
Schools in Alberta are now required to establish a Gay-Straight Alliance (GSA) for those students who request one. What does this mean for religious-based schools that refuse to do so? How can respect for religious freedom and protection of equality rights be balanced under Canada's constitutional framework?
These questions and more were discussed at a free public legal education event on November 30 at the Law Centre hosted by the Centre for Constitutional Studies. Patricia Paradis, Executive Director for the Centre served as emcee and moderator and University of Alberta Faculty of Law Dean Paul Paton brought welcoming remarks from the Faculty. Dr. Kristopher Wells, Assistant Professor in the University of Alberta Faculty of Education and Director of the Institute for Sexual Minority Studies & Services and Dr. James Kent Donlevy, Associate Professor at the University of Calgary's Werklund School of Education presented arguments from both sides.
Dr. Wells opened his talk by providing a brief history of GSAs in North America, addressing what he felt were misconceptions, and reminding the audience that GSAs are completely voluntary and safe spaces for LGBTQ+ students in an often hostile school environment. He described what life is like in classrooms and schools for many LGBTQ+ students and argued that GSAs are critical for their well-being.
Dr. Wells referenced research that LGBTQ+ students are more likely than their straight counterparts to face increased peer victimization, higher rates of truancy, teen pregnancy, and dating violence. Many are forced to turn to negative coping mechanisms, such as drugs and alcohol, and in some cases, students are forced onto the streets when rejected by family. He argued that GSAs are a lifeline for vulnerable LGBTQ+ students; that GSAs help to increase a sense of safety and belonging for these students, which leads to increased school attendance, better grades, and more positive relationships with teachers and administrators. GSAs also foster the growth of community connections and a sense of empowerment and hope for the future.
Dr. Donlevy - a lawyer, associate professor, and former teacher certified by the Alberta Teachers' Association (ATA) - brought the perspective of religious schools to the debate. He was asked by the Centre to speak to two separate issues: one, why do religious school parents oppose GSAs; and two, how might the courts balance freedom of religion and equality rights when they clash within the context of religious schools opposing the creation of GSAs in their schools.
On the subject of freedom of religion, Dr. Donlevy argued for the right of religious schools to practice and teach their faith free from government intervention. He provided the perspective of parents of children in religious schools, many of whom believe that the government forcing religious schools to institute GSAs constitutes an abuse of state power. Specifically, he argued that religious parents are being compelled by law to act against their conscience and religious beliefs because the government demands that, through GSAs, religious schools and their parents and children participate in activities which run counter to their religious beliefs. Dr. Donlevy argued that GSAs go beyond protecting LGBTQ+ students from bullying, referencing the ATA guide on GSAs that includes language that GSAs seek to "effect social change" and conduct "political activities."
On the question of how Canadian courts balance rights, Dr. Donlevy outlined the three-step process the courts would likely use in attempting to balance freedom of religion and the equality rights of LGBTQ+ students that the government is trying to protect with its GSA law. First, a court would likely find that the law involved the protection of LGBTQ+ students. Second, given the special circumstances of LGBTQ+ students, the law might possibly be found to minimally impair the school parents' rights. Dr. Donlevy believes that the government's GSA law would fail the third part of the test because, among other things, the law is not necessary to protect LGBTQ+ students from bullying. Religious schools already have anti-bullying programs and, as such, the courts could rule that the legislation's effect is out of proportion to the impairment of the religious school parents' freedom of conscience, religion, and possibly association.
Dr. Donlevy concluded his talk by saying that he believes the GSA law would ultimately fail a Charter challenge by private religious schools. In the case of Catholic separate schools the same conclusion is reached as these schools have special constitutional protection under section 29 of the Charter to maintain the religious nature of their schools.
Ultimately, both Dr. Wells and Dr. Donlevy agreed that it may be better for all students involved that both sides of the debate work together in a respectful manner - seeking to understand each other's point of view - to reach a resolution without going to the courts.
"How do we find common ground? How do we go about putting the needs of students above debates?" said Dr. Wells.
The sentiment was echoed by Dr. Donlevy: "How are we going to live together, without forcing our beliefs on one another?"
Editor's note: The panel discussion will be available on the Centre for Constitutional Studies' YouTube channel in the near future.