Getting the Balance All Wrong: Bill 44 and Alberta’s human rights regime

Over the past few days, a couple people have politely pointed out to me that I promised another post on Bill 44. The more impatient ones have pointed out that it was promised to appear last Thursday evening! For this, I apologize. Life did that thing to me, you know, the thing where it interferes with your best-laid plans after tricking you into thinking they would somehow work. In any case, I’ve decided to spend my first free evening in a while laying down my final thoughts on Bill 44 before everyone forgets what Bill 44 was and why we cared about it!

 

From the beginning, it seemed that rhetoric on Bill 44 was sharply polarized into two absolutist camps, and little changed throughout the debates. For the opposition, Bill 44 was a bill about gay rights, and to go against it seemed to imply that you were in support of institutionalized homophobia. For the government, Bill 44 was a bill about parental rights, and to go against it seemed to imply that you had no respect for the important role a parent plays in their child’s education. Rob Anderson, MLA for Airdrie-Chestermere, articulated this particular message quite clearly.

 

“I think it’s… disgusting that a parent’s tolerance in education can be called into question because they believe that, frankly, they would like to teach their kids in a home setting about these very sensitive topics… I think I can give a balanced education to my children on those things, and I believe I can do so in a nonbigoted and completely tolerant way. So I don’t need people [in the opposition] telling me that I’m some kind of uneducated moron. Effectively, that’s what this debate has been.”

 

I’m not going to talk about “what this debate has been.” Third reading has come and passed, and the time to talk about the politics of Bill 44 has gone with it. I’m not going to talk about the legal morass this bill invites upon our public education system either. Ken Chapman’s post does an excellent job of covering that topic, for those who are interested. Instead, I’m going to talk about what this debate means – I’m going to talk about the negative impact this bill will have on the advancement of sexual tolerance in our province.

 

My concerns with Bill 44 do not follow from any denial that a parent has the right to involve themselves in their child’s education. Nor do they follow from any belief that the state should have the ultimate authority over the education of its youngest citizens. That position would be absurd and untenable, and I certainly have no problem with enshrining the parent’s right to opt their children out of instruction on specific topics. I should point out that, ideally, I would prefer to see this right enshrined into the legislation that pertains to education (in our province, the School Act) although the idea of recognizing this concept in human rights legislation does not leave me chilled. The important issue here, no matter where this right is recognized, is that it appears in a form that is properly balanced against other fundamental rights. There is where Bill 44 fails. The way in which parental rights in education have been conceptualized in this bill threatens the fabric of this province’s human rights regime. Our government has gotten the balance completely wrong.

 

Section 9 of this bill, which now finds itself in the Human Rights Act of Alberta as the newly added Section 11.1, recognizes the parent’s right to opt their child out of “courses of study, educational programs or instructional materials” that “include subject-matter that deals primarily and explicitly with… sexual orientation.” At first glance, this little clause might seem rather innocuous. Some might feel that the same principles that allow opt-outs for sexual education should apply here. Indeed, many have made that argument. That is what Mr. Anderson means when he refers to parents that “would like to teach their kids in a home setting about these very sensitive topics.”

 

Consider this scenario: A high school social studies teacher decides to show the class a movie as part of a unit about their rights as citizens and the importance of tolerance in diverse societies. The teacher chooses Milk, a 2008 bio-pic staring Sean Penn that recounts the story of Harvey Milk, the first openly gay man to be elected to public office in the United States. Sure, this teacher could have just as easily chosen Crash, or To Kill a Mockingbird, or, hell, Guess Who’s Coming to Dinner, but for whatever reason they did not. Now, it would be almost impossible to argue that Milk is not “instructional material” that deals “primarily and explicitly” with “sexual orientation”. For that matter, any class that attempted to teach gay rights or tolerance for minority sexual oritenations would fall under the purview of the new Section 11.1 for the very same reasons. Effectively, we now have a situation where a parent can remove their child from a class on a particular human right because they feel it to be a “sensitive topic”.

 

One axiom upon which our liberal democracy relies is that an individual’s liberties and rights extend as far as their neighbours’, as if there were some boundary formed where fundamental rights collide. This axiom allows us to demarcate these boundaries in a way that serves to moderate political behavior in a just and peaceful manner. My right to express myself freely, for instance, extends as far as my neighbour’s right to not be maligned based on their immutable characteristics. Or, to chose a more simplistic formulation of this principle, my right to extend my fist ends at my neighbour’s nose.

 

There is no boundary to be crossed, however, in educating someone on their rights and the rights of their fellow citizens. No citizen has the right to remain ignorant of the rights and liberties that moderate their society. This cannot be the case, otherwise rights would drift derelict, never taking root in the citizenry, never instilling them with the respect and tolerance required for truly liberal democracy. Would it be reasonable to allow me to extend my fist if I were permitted to ignore where my neighbour’s nose began, or to remain ignorant of the simple fact that such an action would be painful? Of course, this could not be considered reasonable. In fact, a great many would consider it criminally negligent. The principle that rights, and the boundaries between, must be known and understood is essential to our liberal society. Our MLAs recognize this principle. It’s what permits them to subject each other to views and values upon which there is fundamental disagreement in our legislature without driving any of them to give up their jobs.

 

Clearly, the changes brought by Bill 44 to our Human Rights Act have ignored this principle. Our government has made it a human right to remain ignorant of where our rights, not to mention the rights of others, begin and end. Sadly, this is not the only way in which the government has compromised human rights in our province with Bill 44.

 

Bill 44 has also allowed parental rights in education to undermine one the most fundamental principles in Canada’s rights regime: group recognition rights. Canada’s multiculturalism relies on the proper recognition of – not to mention respect for – difference. When a particular group’s difference from the whole is not recognized, their identity is denied social significance and, in turn, their group is refused dignity as a respected component of society. When a particular group’s difference from the whole is misrepresented, the effects are even worse; their identity takes on a false social significance. For any group in a multicultural society, being ignored is bad enough, but being misunderstood is far worse.

 

Unfortunately, this is precisely what Bill 44 does. It misrepresents minority sexual orientations and entrenches these misrepresentations and misunderstandings into our province’s human rights regime. It does this by acknowledging sexual orientation as a “sensitive topic” and by allowing the same principles that permit parental opt outs of instruction on sexual education to operate in the context of education about sexual orientation.

 

Now, I have no problems with the principle that recognizes the parent’s right to remove their child from sexual education. Human sexuality has both G-rated and R-rated components. The G-rated components of love and romance, for instance, are well covered in the curriculum. I’m sure many of us remember Romeo and Juliet or The Taming of the Shrew from high school English class. This instruction is accomplished without opt outs and without uproar. The R-rated components of human sexuality, on the other hand, are properly considered “sensitive topics”, and the parents are rightly permitted to excuse their children from instruction on human reproduction and sexual behaviour, for instance.

 

My problem with Bill 44 is that it fails to acknowledge this important distinction between G-ratings and R-ratings for minority sexual orientations. During debate on Bill 44, Dave Hancock, the Minister of Education, stated that “sexual orientation is part and parcel of human sexuality. In our mandated policy to school boards right now if they are teaching anything about human sexuality, they have to give notice to parents.” Clearly, the minister is not talking about Romeo and Juliet. He is talking about human reproduction, sexual behaviour, and the other sensitive, R-rated components. His suggestion that sexual orientation is “part and parcel” of these components carries troubling and insidious implications.

 

The act of subsuming sexual orientation – especially when, in the context of Bill 44, it has exclusively meant minority sexual orientations – within the R-rated aspects of human sexuality debases these sexual orientations. It transforms them into taboo subjects and shrouds them in vulgarity and lewdness. It denies them the capacity of romantic and familial love, and it reduces them to lustful fornication. Essentially, it denies these minority sexual orientations equivalency to the majority, and I’m sure the unfortunate irony that this bill’s explicit intent was to recognize this equivalency is lost on no one.

 

Those are my concerns with Bill 44. They have nothing to do with the principle that parents should have the right to involve themselves in their child’s education. They do not rely on a vision of public education where the state has ultimate authority over the education of its youngest citizens. I imagine you would be hard-pressed to find someone in support of this chalkboard totalitarianism.

 

Instead, my concerns are that Bill 44 has granted an individual the right to willfully ignore the rights of the fellow citizens. This cannot be a legitimate human right, and it should not have any place in our human rights legislation. To hold any value, rights must be known and understood. Those boundaries that moderate our society cannot serve their purpose unless all citizens know where they lie and appreciate why they exist.

 

Furthermore, Bill 44 misrepresents minority sexual orientations. If these sexual orientations are to truly receive the equivalency that allows for their inclusion in the prohibited grounds for discrimination, their differences from the majority must be properly recognized and properly respected. To allow complete ignorance of them on the false grounds that they are somehow entirely “part and parcel” of an R-rated curriculum denies them this recognition and this respect. It suggests that they are lewd, that they do not belong in public.

 

So, my concerns with Bill 44 are not, to borrow the words of Mr. Anderson, that “uneducated morons” with be unable “to teach their kids in a home setting about these very sensitive topics” in a “nonbigoted and completely tolerant way.” No, the reality is that calling the entirety of any sexual orientation a “sensitive topic” is tantamount to intolerance itself. My concerns with Bill 44 are that it has introduced a dangerous conceptualization of parental rights in education into our Human Rights Act. It has destroyed the balance and eroded the boundaries between two fundamental sets of rights, and it has done this in a way that leaves me deeply concerned for the advancement of sexual tolerance in Alberta.

Bill 44 and the Evolution Opt-Out Myth: Public discourse in Alberta fails again

(This post was actually written on May 18th)

 

Recently, Albertans have been getting hot and bothered over the issue of

parental rights in education. The provincial legislature is currently

debating Bill 44, a bill which would, among other matters, grant parents

the inalienable right to remove their children from classes on religion and

sexuality, including sexual orientation. This comes as a disappointment

to many who would have otherwise applauded Bill 44’s other provisions.

These include enshrining sexual orientation into human rights law and

rendering the provincial body that considers human rights complaints

more independent.

 

Sadly, as the controversy grows and the words ‘parental opt-out’

increasing drift into conversation, I have found the public discourse

surrounding Bill 44 to be rife with myth and misinformation. When Bill 44

is brought up in discussion, it seems the most frequent response is

something similar to: “Oh, that’s the one that would let parents take their

kids out of classes about evolution.” Even Delwin Vriend, whose appeal to

the Supreme Court of Canada was responsible for the inclusion of sexual

orientation into Alberta’s human rights law, has said this regarding the

notorious parental opt-out clause: “Unfortunately when we start to talk

about being able to pull kids out of class for various reasons, including

talk about gays and lesbians or evolution, that definitely points to a very

backwards people.” 

 

I can tell you with certainty that it does not appear likely Bill 44 would

permit parents to remove their children from a science class teaching

evolution. Indeed, I find it quite distressing that discussion surrounding

this bill has strayed so far from relevancy and distracted public attention from

the truly important questions raised by the bill.

 

If I had to pinpoint the genesis of this evolution opt-out myth, I would

chose the April 28th press conference when a reporter asked if Bill 44

would allow parents to pull their children from a class on evolution and

the Premier mistakenly responded “The parents would have the

opportunity to make that choice.” The following day in question period,

Brain Mason, the leader of the provincial NDP, asked the Premier why he

was attempting to transform Alberta into a 1920s Arkansas. Of course,

instead of Arkansas, Mr. Mason meant Tennessee where, in 1925, school

teacher John Scopes was put on trial for the crime of teaching evolution.

Liberal opposition member Dave Taylor only made matters worse when

his attempts at word play with the now infamous Scopes Monkey trial

were interpreted as a racial slur made towards Lindsay Blackett, the

government’s Minister of Culture and Community Spirit.

 

Since then, the government and the provincial PC caucus has gone to

great lengths to dispel the evolution opt-out myth. Dr. Neil Brown, a

former university biology professor, has reiterated that Bill 44 would only

allow parents to opt their children out of classes that deal explicitly with

religion, and not “tangentially, peripherally, or consequentially” with

religious subject matters. He stated emphatically that “If it allowed

parents or students to opt out of a curriculum dealing with evolution or

biological sciences, I could not vote for this.” 

 

Dave Hancock, the Minister of Education, reaffirmed this clarification of

Bill 44’s provisions, stating that the bill deals only with “explicitly

teaching about religion and not using a religious lens on all other

curriculum to determine whether [the parents] disagree with anything

that’s being taught in science or math or social studies or literature.” 

 

Even the Premier has seemingly gone back on his assertion, although he

has stopped short of outright denying it (my guess is that he’s far too

proud and stubborn to admit he misspoke). When asked by Dr. Swann,

Liberal leader of the opposition, in question period whether Bill 44 would

permit an evolution opt-out, the Premier no longer maintained that

“parents would have the opportunity to make that choice.” Instead, he

replied that Bill 44 “does not give the parents the right to opt out of other

instruction on religious grounds… it’s very clear in the bill, and I’m…

asking all Albertans to read the bill.”

 

So let’s humour the Premier, and read the offending section of Bill 44.

Section 9 of the bill states: 

 

(1) A [school] board as defined in the School Act shall provide 

notice to a parent or guardian of a student where courses of 

study, educational programs or instructional materials, or 

instruction or exercises, prescribed under that Act include 

subject-matter that deals explicitly with religion, sexuality or 

sexual orientation.

(2) Where a teacher or other person providing instruction, 

teaching a course of study or educational program or using the 

instructional materials referred to in subsection (1) receives a 

written request signed by a parent or guardian of a student that 

the student be excluded from the instruction, course of study, 

educational program or use of instructional materials, the 

teacher or other person shall in accordance with the request of 

the parent or guardian and without academic penalty permit the 

student 

(a) to leave the classroom or place where the instruction, 

course of study or educational program is taking place or 

the instructional materials are being used for the duration 

of the part of the instruction, course of study or 

educational program, or the use of the instructional 

materials, that includes the subject-matter referred to in 

subsection (1), or  

(b) to remain in the classroom or place without taking part 

in the instruction, course of study or educational 

program or using the instructional materials. 

 

Clearly, it does not appear that the bill would allow parents to remove their

children from a science class teaching evolution. It would not allow a parent

to remove their children from a language arts class teaching Inherit the Wind, a

book written about the 1925 Scopes Monkey trial. If, however, a class

were to teach a unit on the religious reasons that certain elements of the

Christian faith reject evolution theory, it seems likely that Bill 44 would

apply. Bill 44 would not leave any and all subjects to the discretion of

parents; it would only leave explicitly religious and sexual subjects

(including sexual orientation) to the discretion of parents.

 

Hopefully, public discourse on Bill 44 will abandon its obsession with

evolution opt-outs and focus itself on the issues of relevance raised by

Bill 44. I certainly hope it would, because these issues are of extreme

importance to the democratic fabric of Alberta’s society and there is

precious little time remaining before Bill 44 becomes law.

 

Albertans should stop debating the role of instruction on evolution in the

classroom for the moment. Instead, we should be asking ourselves

whether our classrooms ought to serve as a religiously and sexually

pluralistic forum or a religiously and sexually neutral forum. Would our

multiculturalism be better served if Alberta’s school children were

required to receive an introduced to all major religions and sexualities in

an unbiased manner? Or, should religious and sexual education remain

the exclusive domain of the family?

 

These questions lead to another important issue raised by this bill: the

degree to which parents and the degree to which society, through their

government, should be allowed to influence the development of their

youngest generations. The authority to remove their children from

classes on religion and sexuality is already granted to parents through

the School Act and Alberta Education policy. Should this authority remain

a parental privilege recognized only in Alberta Education policy and the

School Act, or should it be hardened into an inalienable human right?

Should the parent’s right and responsibility to provide input into their

child’s education remain the purview of a governmental department, or

be elevated to the purview of a quasi-judicial Human Rights Commission? 

 

Furthermore, if the parent’s role in their child’s education does become

accepted as an inalienable human right, Bill 44 raises the question of

where to draw the boundary when two sets of fundamental rights grind

up against each other. Is the right to express your sexual orientation

without discrimination in any way compromised by a parent’s right to

influence their children’s education on sexual orientation rights?

 

With any luck, Albertans will forgot about the evolution opt-out myth for

the time being and focus on these important questions raised by Bill 44.

We must allow public discourse to evolve into reasoned debate before

time runs out, bill becomes law, and citizens regret having asked all the

wrong questions.

Welcome!

Dear friends, family, acquaintances, and random cyber-wanderers,

 

It has finally happened. At last, I have succumb to the allure of new social media. Yesterday, I caved in and joined Twitter. Today, I am starting a new blog.

Since high school, I have derived considerable pleasure from the discussion and debate of philosophical and political subjects. Extending these interactions to cyberspace seems like the logical next step.

The name of my blog is a direct reference to the amusing premise behind two episodes from one of my favorite television programs, The West Wing. In these episodes, Leo McGarry, the fictional White House Chief of Staff, recounts to his staff an anecdote.

He tells how

Andrew Jackson, in the main foyer of his White House, had a big block of cheese… I am making a mental list of those who are snickering, and even as I speak, I am preparing appropriate retribution. The block of cheese was huge, over two tons, and it was there for any and all who might be hungry. Jackson wanted the White House to belong to the people, so from time to time, he opened his doors to those who wished an audience… It is in the spirit of Andrew Jackson that I, from time to time, ask senior staff to have face-to-face meetings with those people representing organizations who have a difficult time getting our attention. I know the more jaded among you see this as something rather beneath you, but I assure you that listening to the voices of passionate Americans is beneath no one, and surely not beneath the people’s servants…

Sadly, I have no White House and I have no senior staff. I am not even American, and I could care less whether your organization has a hard time getting anyone’s attention. I don’t even have an actual big block of cheese. Nonetheless, I enjoy tremendously the sentiment behind Leo’s anecdote, and it is in that spirit that I am starting this blog. I am encouraging everyone to leave feedback on my posts and on the comments of others, as long as everyone remains reasoned and respectful.

One final note: In a few minutes, I will be posting a piece I wrote about Bill 44 last week. Tomorrow evening, I anticipate posting another piece on Bill 44. Don’t worry; I won’t be turning my blog into a single issue echo chamber. It’s simply that, due to work, I’ve been following this bill very closely and have had a lot to say on the subject in these past couple of weeks!