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Notes of the hearing, by John Fisher, Egale |
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On June 12, 2002, the Supreme Court of Canada heard the case of Chamberlain et al v. Surrey School Board.
Please note that James Chamberlain and the other litigants in this case have committed significant personal and financial resources to this important case. Donations to the case may be made as follows:
Cheques may be made payable to the "Gay and Lesbian Educators of B.C. or GALE-BC" and sent to:
GALE-BC
Box 93678
Nelson Park, P.O.
Vancouver, B.C.
V6E-4L7
Egale can also process credit card donations for the appellants, which may be made by phoning our toll-free number at 1-888-204-7777.
This landmark case arose when the Surrey School Board refused a request by teacher James Chamberlain to approve for classroom use three children‚s books depicting families with same-sex parents.
The BC Court of Appeal delivered an unfortunately ambiguous ruling last year, suggesting that although the books were not generally approved for classroom use, they could, if available in school libraries, be used on an as-needed basis in the professional judgment of teachers. In practice, the Surrey School Board continues to ban the use of the books, on the basis that, in its view, any reference to same-sex couples should be excluded from the K-1 curriculum. As a result, James Chamberlain and the other petitioners appealed to the Supreme Court of Canada.
On the morning of June 12, a group of us gathered in the Supreme Court foyer to give initial media interviews. Petitioner Murray Warren was joined by representatives of Egale and PFLAG, and James was busy giving media interviews in BC. Murray and James each showed the media the innocuous nature of the actual books, and at the Supreme Court a PFLAG mother spoke movingly about her son who had committed suicide as a result of anti-gay harassment.
The case was heard by all nine Supreme Court judges: Chief Justice McLachlin, and Justices L‚Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, and LeBel. This will be one of the last cases heard by L‚Heureux-Dubé J. before she retires from the bench. The challenge at the Supreme Court level is always to persuade at least 5 of the 9 judges, in order to secure a majority.
The Court was obviously well-versed in the materials that had been filed, and questioned both sides fairly rigorously.
Counsel for the Appellants, Joe Arvay, began by reading excerpts from one of the books, „One Dad, Two Dads, Brown Dad, Blue Dads‰ ˆ a book „appropriate as Fathers‚ Day approaches.‰ Joe also summarized the other two books, Belinda‚s Bouquet and Asha‚s Mums.
The Court launched into questions almost immediately.
Bastarache J asked: Is this case about the actual content of these specific books or the broader question of recognizing diverse family relationships in general? Isn‚t it anomalous for us to order a particular School Board to use a particular book?
Joe replied: The School Board‚s position is that any books that depict same-sex families are not appropriate. A School Board may have lots of legitimate reasons not to approve a particular book, but here they refused solely because the books deal with same-sex families, and that‚s unconstitutional.
Binnie J: Aren‚t the books available through the library? The library issue is pretty crucial.
Joe: The School Board resolution was intended to and had effect of preventing the use of the books in the classroom. The School Board has refused to agree that the books are appropriate as library resources, and the criteria for approving library resources are similar to the criteria for approving books for classroom use.
The message of the books is that same-sex families exist, that they are „not bad‰ and that they include thoughtful, intelligent, loving people. How could there possibly be any proper constitutional lawful objection to their use? In the School Board‚s eyes, presenting same-sex families as Œnot bad‚ is, in itself, morally contentious.
Gonthier J: Isn‚t that a matter for the School Board to decide?
Joe: No school district can hide behind the views of some parents, if those views are inconsistent with the Constitution.
L‚Heureux-Dubé J: Will you be addressing the standard of review?
Joe: On a constitutional issue such as equality for same-sex parents, the School Board has to be correct ˆ there is no room for deference to their views.
Bastarache J: It‚s not as simple as equality for same-sex parents. The School Board‚s explanation is that they had to consider questions such as whether the books were age-appropriate.
Joe: But they said the books were age-inappropriate ONLY because they depict same-sex parents. In all respects, the books advance the curriculum requirement of the Ministry of Education to depict diverse family forms.
Arbour J: There is some emphasis in the other curriculum-approved books, such as „My puppy is born‰, on reproductive functions, and distinguishing males and females. Aren‚t there concerns about raising prematurely questions of sex and reproduction?
Joe: The purpose of the books is to learn about families, and the diversity of family forms. Books like „My puppy is born‰ are far more likely to raise questions of sexuality than books depicting same-sex parents. Children aren‚t likely to raise those sorts of questions.
Iacobucci J: These issues are immensely difficult, since we‚re trying to use the lens of adults to assess the probable views of children. It is at core a difficult value judgment.
Joe: We have to distinguish between the books themselves and what may occur in the classroom. Any questions may be raised in the classroom, but if the books themselves don‚t raise questions of sex or sexuality, we can‚t condemn them. The message that there can be loving dads doesn‚t itself raise questions of sex ˆ sexual interpretations are only raised by those seeking to denigrate the books.
Bastarache J: But don‚t books about two dads necessarily invite questions about sex and reproduction?
Joe: If children want to know how two dads make babies, the answer is simply ˆ they don‚t. Dick and Jane books are just as likely to give rise to questions of sex, and those questions are allowed in the classroom.
L‚Heureux-Dubé J: Essentially, you‚re saying it‚s OK for children to learn about human rights at any age.
Lebel J: Why do these books have to be part of the curriculum?
Joe: They‚re necessary to foster self-esteem and respect for diversity.
Major J: But why is that particular subject mandated? Especially since the School Board says it will not tolerate discrimination. Does it have to start the day a child sets foot in a classroom? Why not save it for the later grades?
Joe: If the Board is serious about fostering a climate of respect and non-discrimination, then what more gentle message could there be than these books? The most common insult in the school yard is „fag‰, „lezzie‰ - these kids know these are derogatory terms.
Iacobucci J: I agree that education creates dissonance ˆ that‚s life, but the question is when are children best able to handle that?
Joe: What‚s the dissonance in this case? What‚s the contrary message? If it‚s the message that lesbians and gays are not to be respected, then that‚s a dissonance this Court can take no cognizance of. If these books were about interracial couples, we wouldn‚t be here, we wouldn‚t even be debating this. We wouldn‚t place stock in the argument that some parents want to teach a different moral message.
Iacobucci J: It‚s not about judging parents‚ views, it‚s about the best interests of the child. Isn‚t that a judgment call?
Joe: There‚s no question that it‚s in a child‚s best interests to learn civic virtues and respect for others. The record shows that children learn prejudice at ages 3-4, and the curriculum requires diversity teaching at the K-1 level.
Gonthier J: Another difficulty is whether these things should be taught to the whole class, or just in the home or on an individual basis.
Joe: We can‚t single some children out based on the sexual orientation of their parents. All children need to learn the values of tolerance.
Gonthier J: What about the freedom of conscience of parents?
Joe: The conflict has to be resolved in favour of an inclusive society. When we render some families invisible, that‚s harmful for children.
At this point, the Chief Justice signaled that time was up and, after a fairly exhaustive (and exhausting!) bout of questioning, Joe ended his submissions.
The various intervenors in support of the Appellants then took the floor, each of which were able to address the Court for a whopping ten minutes. First up was the British Columbia Civil Liberties Association, represented by Chris Sanderson.
Chris spoke to the importance of the separation of Church and State. The Schools Act requires that the School Board act in accordance with the „highest morality‰ and make decisions on a secular basis. By seeking to give effect to the religious views of parents, the Board violated this principle.
Arbour J: But homophobic views cut across all religious lines, don‚t they?
Chris: It‚s not the origin of the prohibition that matters, it‚s the motivation of the Board.
Gonthier J: Wasn‚t the School Board‚s concern that children might be placed in the centre of this controversy?
Chris: The Board‚s concern was that children might simply become aware that same-sex families exist - and, armed with this knowledge, children might go home and raise it with their parents. This only creates controversy if, as soon as it enters kids‚ radar screens, some parents feel a need to teach that if these families exist, you better be aware that they‚re immoral. It‚s not the books themselves, but some parents‚ need to insert their moral teachings that create the concerns around age appropriateness.
Gonthier J: How do you define the term „highest morality‰ in the Schools‚ Act?
Chris: We have to look to the values in the Charter.
Susan Ursel then took the floor, representing „Families in Partnership‰, comprising the Foundation for Equal Families and PFLAG Toronto. Susan delivered an impassioned plea on behalf of children raised by same-sex parents, and, for the first time in the day, the Court listened without interruption.
The family is one of the most fundamental expressions of our humanity, submitted Susan, and families in all their myriad forms are entitled to constitutional protection. Children with lesbian or gay family-members are harmed by the deliberate exclusion of their families from the curriculum at a time when all their other classmates are learning about their families.
The hope of forming families is an aspiration that many lesbians, gays and bisexuals thought they would be excluded from, but increasing numbers of same-sex parents are raising children. It is a denial of equality to visit on these children the discrimination faced by their parents.
The Surrey School Board policy is either deliberately ignorant of or careless of the interests of these children. This is not about „age-appropriateness‰. The children of lesbians and gays are members of same-sex families all their lives ˆ they don‚t become such children at an „appropriate age‰.
The School Board is essentially saying that it‚s OK to discriminate if we call some families „controversial‰. Gay and lesbian families are not controversial - we are a social reality, and part of the Canadian landscape. The values we derive from the public education system must be founded in the Charter, in values of nondiscrimination, inclusion, tolerance and respect. Everyone has the right to expect equal treatment from a public institution without discrimination. The School Board seeks to promote the value of exclusion ˆ we promote respect for inclusion.
We understand that children of same-sex parents will face questions and challenges ˆ it‚s a given, we expect that ˆ but the least we can expect is that their own schools will seek to place them on an equal footing through principles of inclusion.
These children are hungry for images of their own families. Recognizing their families doesn‚t exclude other families from being there too.
No-one should be forced to go forward without their families. This should not be the burden of children to bear.
Next, the Canadian Civil Liberties Association affirmed that a secular School Board cannot advance a particular conception of Divine will, but must promote common values.
If any family form of which any religious group disapproves can be excluded from the curriculum, the list of approved families may be quite short.
The secular School Board cannot itself make decisions on religious grounds ˆ nor can it simply be a proxy for the same values on behalf of parents.
It‚s one thing to allow the accommodation of religious diversity in schools, it‚s another to provide a religious veto over secular content. In a secular context, school boards have a duty to inculcate values of acceptance and respect ˆ and the CCLA would even go so far as to say that a school can teach that a particular religious value is wrong. For example, in the Malcolm Ross case, anti-Semitic views could not be justified just because they had a religious basis.
Cynthia Petersen then spoke on behalf of Egale, the final intervenor in support of the Appellants. In addition to our written submissions, Cynthia said, she would address two main points: the Board‚s claim that it was taking a neutral position, and its claim that the materials are age-inappropriate.
The Board‚s claim to neutrality fails to take into account the broader context, which includes a recognition that enforced invisibility is a central element of the discrimination experienced by lesbians, gays and bisexuals. Many of us are forced to conceal our sexual orientation, and this concealment isolates us, alienates us from each other, reinforces the normative status of heterosexuality, and can lead to stress, depression and suicide.
Our enforced invisibility is also harmful to our heterosexual family-members, our children and parents, as homosexuality is treated as a social aberration.
Also relevant to the legal context is the existence of rampant homophobia in the education system, which includes name-calling, threats, harassment, the absence of role models for lesbian, gay and bisexual youth and the absence of lesbian, gay and bisexual materials from the curriculum.
The curriculum prescribes certain learning outcomes for grades K-1, which include an awareness of the diversity of family forms. The curriculum invites students to talk about their own families. The fact is that there are children of same-sex families in the Surrey School District, and children who will later grow up to identify as lesbian, gay or bisexual.
Human rights law must be assessed from the perspective of the community affected, and from the perspective of these children the Board‚s decision is hardly „neutral‰ ˆ the gag on same-sex families contributes to their enforced silence and invisibility, and suggests that our families are so shameful as to be unmentionable.
The Board‚s claim that the books are „age-inappropriate‰ is similarly unconvincing, in view of the evidence that the books are already in use in other school districts with no ill-effect.
For children of lesbian, gay and bisexual parents, these books reflect their realities. The books do not „introduce‰ the topic of sexual orientation. Kids are already learning messages about sexual orientation, since every other book teaches them about heterosexual families. As the experts in the case noted, messages are sent each time a teacher speaks as if everyone in the world were heterosexual.
What is the message of these books? They are not about sex, there is no sexual content. Any suggestion otherwise is based on inaccurate stereotypes which recognize the full emotional, romantic and other components of heterosexual relationships, while sexualizing same-sex relationships and reducing them to a single sexual aspect.
Nor are they about „indoctrination‰, which again is based on the stereotype of lesbians, gays and bisexuals as proselytizing recruiters.
The actual message is simply that we exist. Tolerance and respect for diversity are messages that no child is too young to learn.
John Dives then rose to present the case for the Surrey School Board. This is not about intolerance, he began, it is about 5 to 6 year old children. The appellants want to be able to teach about homosexual families, devoid of moral content. But you can‚t pretend that these books have no moral content ˆ they do, and parents have a right to teach their own moral code.
L‚Heureux-Dubé J: They can do that at home, can‚t they?
Dives: Yes, but generally they wouldn‚t teach it at that age. Children that age are too young to understand the distinction between respect for homosexuals as individuals and the immorality of homosexuality.
L‚Heureux-Dubé J: What about racism?
Dives: There is no age-inappropriateness to racism.
Iacobucci J: But diversity of family forms is part of the curriculum. Why isn‚t that picture made complete by inclusion of the reality of same-sex families? What‚s wrong with that?
Dives: That proposition is generally valid, but that particular family model, unlike other issues, undermines the ability of parents to address those morally contentious issues.
Arbour J: The curriculum invites children to describe their own families. Surely children of same-sex parents should not be precluded from describing their own family environment?
Dives: There is a fundamental difference between introducing a topic and addressing a topic that arises. The Board never addressed the question of making the books available in the library, only whether they could be brought into the classroom.
Arbour J: So is it your position that if the books were available in the library, they could be used in the classroom?
[long silence]
Dives (eventually): ∑ the School Board did not appeal that part of the Court of Appeal‚s finding that books available in the library could, under certain circumstances, be available for classroom use.
Bastarache J: But aren‚t they the same criteria?
Dives: Library books can be used differently; just for a specific child if the need arises, but they don‚t form part of the curriculum. There may be other requirements too, such as the need for a teacher to consult with the principal if the content is sensitive.
Arbour J: And could the principal refuse?
Dives: Potentially, yes, although there could be a grievance if the principal acted unreasonably.
Binnie J: Do you accept the characterization of the books as an equal valuing of diverse family forms? If so, what‚s age-inappropriate about them?
Dives: The concern is not so much about the contents of the books, as about ancillary issues.
Binnie J: So you‚re concerned not with the books, but with the reaction to them?
Dives: The key is the suggestion that same-sex families should be „valued in the same way‰. It‚s the difference between moral approval versus respect and tolerance. The position of the appellants is that if you morally disapprove of homosexuality, you must be incapable of respect. In the Trinity Western case, this Court accepted that you can see homosexuality as sinful but still act appropriately and respectfully as a teacher.
Lebel J: But Trinity Western dealt with a private university ˆ here, we‚re dealing with the public schools.
Dives: It‚s about accommodating diversity ˆ we have to be inclusive not just of homosexuals, but also of religious families.
Chief Justice McLachlin: But isn‚t there an argument that same-sex families are a reality, therefore children will be introduced to the subject anyway?
Dives: That assumes the books simply depict homosexual families, rather than condoning them.
Lebel J: This is about books. What, within the contents of the books, is the problem?
Dives: The Board is concerned with the intended use of the books, not just the books themselves.
Binnie J: Isn‚t the issue one of tolerance?
Dives: The intention of the books is proselytizing ˆ I‚m not suggesting recruitment, but putting forward a worldview of the morality of this kind of relationship that is inconsistent with many people‚s moral perspective.
Iacobucci J: Our constitution and laws say that same-sex couples are entitled to the protection of the Constitution, same-sex adoption is also now permitted. This is a reality, as far as the law is concerned. There‚s a spectrum from tolerance to acceptance to approval. Isn‚t tolerance now constitutionally required, and perhaps also acceptance? The curriculum requires teaching about families, so you can‚t leave out same-sex families. What‚s wrong with that? Why isn‚t that constitutionally mandated?
Dives: There is no hierarchy of rights. Freedom of religion includes the right to inculcate one‚s own moral code in one‚s children. Homosexuals are a separate group by reason of their sexuality - this is a difference which impacts on the question of age-inappropriateness.
Arbour J: That begs the question of whether this is a group that can be reduced to its sexuality. These books depict them as loving families. When we depict heterosexual families, we don‚t suggest that we approve of all their sexual practices.
Dives: There is a difference between sex and procreative sex. It‚s one thing to suggest to children that sex is permissible to produce babies, it‚s another thing to raise sex for reasons of non-procreative love and respect.
Bastarache J: But if questions of sex arise, a teacher can deal with them summarily. Is the conflict otherwise likely to occur?
Dives: Yes, children do raise these questions. The Board was elected to reflect the interests, morals and standards of its community. The appellants are trying to portray the mere belief that homosexuality is immoral as an intolerant belief. The Board was entitled to take into account the fact that groups such as GALE-BC were depicting homophobic beliefs as intolerant in their materials.
Iacobucci J: Cynthia Petersen emphasized that you look at the alleged violation through the prism of the disadvantaged group ˆ doesn‚t that suggest a finding of discrimination?
Dives: A reasonable person would appreciate the entire context, including the legitimate concerns of parents.
Chief Justice McLachlin: It‚s accepted in the curriculum that it is age-appropriate to address the diversity of family forms, so you have to show there‚s a special reason that makes it age-inappropriate to talk about two moms and two dads.
Dives: The group is defined by its sexuality.
Chief Justice McLachlin: But there is nothing in the books about sexual practices.
Dives: Had James Chamberlain simply presented the books as a depiction of same-sex families, it might be a different issue, but the Board has always suspected he really wants to teach about sexual orientation. We need to encourage inclusiveness, and not drive people out of the school system.
With that, John Dives concluded his submissions and gave the floor to Daniel Bennett, representing the Abbotsford School Board. Bennett made a short presentation, affirming that school trustees are democratically elected to represent their communities, and courts should be reluctant to interfere with their discretion. Although some of the Surrey school trustees made comments during the campaign process suggesting they were opposed to homosexuality, that should not influence the Court in considering their decisions as Board-members.
The final intervenor in support of the Surrey School Board was Geoffrey Cowper, representing the Evangelical Fellowship of Canada, the Archdiocese of Vancouver, the Catholic Civil Rights League, the Canadian Alliance for Social Justice and Family Values Association.
Cowper expressed concern that the approach of the Civil Liberties Associations would violate the rights of faith communities by requiring that only those morals that are divorced from their religious roots could be considered in the public square. This would shut down diversity in the name of communality.
In any event, disapproval of homosexuality is so widely shared that it cannot be said to be religiously-based. The broader goal here is social indoctrination. It‚s different than race, because it‚s still a reasonable debate to say that religions are entitled to advance their views on the morality of sexual conduct. The appellants don‚t even want a debate on the issue, they propose that children at the K-1 level be taught that same-sex parents have the same moral quality as all other relationships.
Binnie J: The superintendent of schools said that preaching tolerance does not necessarily amount to making a moral judgment about homosexuality itself.
Cowper: There is moral content to the stories. For five-year olds, there is little distinction between questions of fact and questions of acceptance. The difference between respect for the individual, and moral disapproval of their lifestyle, is hard to understand, even for many adults.
[In other words, I can‚t help inserting editorially, the School Board‚s true concern is that children that age are too young to understand hypocrisy.]
The books confer the status of Œparenthood‚ on 2 dads or 2 moms, which inevitably raises questions of sexual content.
Iacobucci J: But how far do you go? By your reasoning, the topic could never be introduced, since it implies moral affirmation of the relationship.
Cowper: You need to wait until children can balance the views of their religious faiths. We‚re not saying there shouldn‚t be a debate, but both views have to be represented. In this case, the Board‚s silence on the issue is not discrimination, since silence often reflects an appropriate balance between conflicting viewpoints.
Finally, Joe Arvay rose for a further 5 minutes, to reply to the arguments of the Surrey School Board and its supporters. Joe‚s presentation was focused and effective, and, unlike his opening remarks, the Court listened without interruption. Joe began by explaining that he would make 5 points:
(i) the question had been raised about whether the books could be available through the library. In fact, the books are not in the school library. If the Board won‚t allow them in the library, they won‚t allow them in the classroom. The School Board once had copies of the books in the library, but gave them away to a public library. Don‚t let the School Board off the hook on the assumption that they‚ll do the right thing, because they‚ll never do the right thing.
(ii) the Board is trying to distinguish between loving the sinner and hating the sin. You can‚t preach both tolerance and immorality in the same breath.
(iii) the Board claims that James Chamberlain was seeking to use the books to advance an agenda. In fact, they read in one pamphlet that homophobia = intolerance, and overreacted. It‚s precisely when public decision-makers overreact that the Courts are mandated by the Charter to step in. The Board is willing to sacrifice tolerance on the altar of their version of morality.
(iv) The Board claims that racism does not raise the same conflict between tolerance and public morality. Of course there is the same potential for conflict, and there was a time when many objected on religious grounds to the suggestion that interracial families were morally equal. The Board claimed that there should be no hierarchy of rights, but essentially they are creating their own hierarchy, in which racism is unacceptable, but homophobia is seen as a little more tolerable. These books are necessary to teach a message of tolerance.
(v) This is public interest litigation, and Joe argued convincingly that, regardless of the outcome, the appellants should be entitled to receive their litigation costs from the Board on an increased basis.
At the end of the day, the Court reserved its judgment, and a decision on this important struggle for more inclusive curricula is expected later this year.