Eric M. Adams teaches constitutional law at the University of Alberta, Faculty of Law, and is a Research Fellow at the Centre for Constitutional Studies.
Heated rhetoric and anxious handwringing have returned to Alberta's schools. Like last year's battle over gay-straight alliances, the Alberta government's recently announced policy concerning gender expression has sparked numerous worried editorials, tense school board meetings, and outraged blogs about the vulnerabilities of children, the demands of human rights, and the responsibilities of publicly funded separate schools.
Last spring, an Edmonton parent filed a human rights complaint on behalf of her seven-year-old daughter, after a Catholic school refused to let her use the girl's washroom because she had not been born a girl. Looking to guide policy among its diverse roster of school boards, some of them religious, Alberta's provincial government released guidelines last week calling on all schools to respect students' decisions regarding their gender expression, including use of their preferred name, pronoun and washroom.
In response, Calgary's Bishop Frederick Henry accused the government of "totalitarianism" and succumbing to the "madness of relativism." A widely noted op-ed blasted the NDP for attempting to create a "genderless utopia." Even less temperate voices attacked the government for putting girls at greater risk of sexual assault. Such reactions led some to wonder whether it was time to dissolve recalcitrant school boards, or abolish the separate school division altogether.
Whatever the position taken, all agreed that rights were on their side. While the government emphasized "an individual's right to self-identification" and the human rights of staff and students, Bishop Henry invoked the rights of religious schools, and the rights of parents to "guide their children's religious upbringing." Still others raised the rights of school boards, and the privacy rights of other students.
It is unfortunate but true that our present constitutional culture often leads to the framing of such controversies as hierarchical contests of rights. The language of rights places claims on a powerful footing, but it can also lead to intolerance of the legitimate claims of others. Rights shine brightly, but they can also blind. A constitutional law fixated on rights got us into this mess. It can also help get us out.
The first step is to recognize the protected constitutional status of separate schools in Alberta. Alberta joined Confederation on an explicit constitutional promise to preserve "any right or privilege with respect to separate schools" then entrenched in the territory's education law, a promise the Canadian Charter of Rights and Freedoms specifically reaffirmed.
That protected education law established separate school boards to partially reflect the diversity of Alberta's population. The guarantee emerged not, as some would have it, as an unfortunate compromise, but rather as an integral part of the constitutional fabric of Alberta; an early, if incomplete, recognition of the need to extend minorities protection from a majority that may not always see their interests.
But how far does the separate school constitutional right of existence extend? That, as it turns out, is a question almost as old as Alberta itself. In 1922, Alberta's Court of Appeal faced the question of separate school immunity from government education policy. In answering a "constitutional question of some gravity and magnitude," the Court held that the guarantee of an established and public-funded separate school board was not intended to insulate separate schools from "ordinary governmental control."
The wisdom of that delineation equally marks the Supreme Court of Canada's most recent foray into the field of religious education rights. In last year's decision, Loyola High School v. Quebec, the Court found that the state could not insist that a Catholic high school in Quebec abandon a "Catholic perspective" in teaching its students about the tenets of Catholicism. Freedom of religion clearly includes a right to manifest and practice religious beliefs and teachings in educational settings free from governmental constraint.
At the same time, the Court held there was no infringement of religious freedom for the government to insist that Catholic schools teach a course concerning other religions in an objective manner, in keeping with the broader educational interests of students. "Nor is asking Loyola's teachers to teach other religions and ethical positions as objectively as possible a requirement that they shed their own beliefs," Justice Abella wrote – it was just good teaching.
The answer, as is so often the case, is not a battle of constitutional rights, but a co-existence of them. Policies that protect the rights of transgender students to human dignity fall, like other concerns focused on the well-being of students, within the province's jurisdiction over education. A constitution of pluralism and mutual respect means Catholic schools teaching Catholic values and respecting the choices of transgender students to difference.
Which rights win? They all do. We do, too.