Rights Without Responsibilities – The Final Chapter

This is the 3rd part of a blog that appeared in OFIS E-news recently.
Dave Bird – OFIS Professional Development Coordinator – davebird@icloud.com

“So I got me two strikes,” he said to reporters standing about, “but you quote me that I’ll still go to bat, for three strikes and you’re out.” (Roy Zimmerman)

So, after two strikes in Parts I and II, just how do we avoid striking out before the Ontario Human Rights Tribunal? One answer lies in Section 18 of the Act:

  1. The rights under Part I to equal treatment with respect to services and facilities, with or without accommodation, are not infringed where membership or participation in a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by a prohibited ground of discrimination is restricted to persons who are similarly identified.

In essence, this is the key to allowing ‘good faith’ discrimination, whereby a private school might only best serve, for example, one gender, one faith, certain special needs, or particularly skilled athletes.

The most definitive explanation of this concept was offered by the Supreme Court of Canada, on May 17th, 2001. Trinity Western University (“TWU”, associated with the Evangelical Free Church of Canada) applied to the British Columbia College of Teachers (“BCCT”, while that College still existed) for full accreditation of their B.Ed. programme. BCCT refused TWU’s application because of the “Community Standards” commitment that all TWU faculty, staff and students were required to sign:

“Refrain from practices that are biblically condemned. These include but are not limited to drunkenness (Eph. 5:18), swearing or use of profane language (Eph. 4:29, 5:4; Jas 3:1-12), harassment (Jn 13:34-35; Rom. 12:9-21; Eph. 4:31), all forms of dishonesty including cheating and stealing (Prov. 12:22; Col. 3:9; Eph. 4:28), abortion (Ex. 20:13; Ps. 139:13-16), involvement in the occult (Acts 19:19; Gal. 5:19), and sexual sins including premarital sex, adultery, homosexual behaviour, and viewing of pornography (I Cor. 6:12-20; Eph. 4:17-24; I Thess. 4:3-8; Rom. 2:26-27; I Tim. 1:9-10).”

BCCT explained its refusal in its Fall 1996 newsletter:

“Labelling homosexual behaviour as sinful has the effect of excluding persons whose sexual orientation is gay or lesbian.  The Council believes and is supported by law in the belief that sexual orientation is no more separable from a person than colour.  Persons of homosexual orientation, like persons of colour, are entitled to protection and freedom from discrimination under the law.”

The Supreme Court of Canada identified the real issue as reconciling religious beliefs (of those wishing to attend TWU) with equality concerns (of public system students, where TWU-educated teachers might teach). The Court observed that neither freedom of religion nor prohibition of discrimination is absolute, and then observed that TWU’s Community Standards (limited to prescribing conduct while at TWU) were insufficient to support any accusation of potential intolerant behaviour of homosexuals by TWU-educated teachers. (To so conclude might then presume intolerance by believers of any other faith.) The Court recognized that:

“The diversity of Canadian society is partly reflected in the multiple religious organizations that mark the societal landscape and this diversity of views should be respected. Freedom of religion, conscience and association coexist with the right to be free of discrimination. Even though the requirement that students and faculty adopt the Community Standards creates unfavourable differential treatment since it would probably prevent homosexual students and faculty from applying, …”

The Court made two key further observations that appeared important to their determination in favour of TWU:

(i)   while homosexuals may be discouraged from attending TWU (a private institution based on particular religious beliefs), they were not prevented from obtaining a B.Ed. elsewhere; and
(ii)  there was no suggestion in the TWU Community Standards that indicated that TWU graduates might not treat homosexuals fairly and respectfully.

So, … how best to characterize the real effect of Section 18? Perhaps one method is to distinguish between positive and negative discrimination? Section 18 is focused upon inclusion, not exclusion. While this is perhaps only a semantic distinction, it does help to remind us that in our society discrimination remains permissible if a private school is, in good faith, primarily serving a student population identified by gender, by faith, by special needs, by athletic ability, or by any other likewise prohibited ground of discrimination.

And do always remember Parts I and II. Although perhaps not absolutely necessary, it never hurts to be able to establish that any broadened educational services by your private school could not realistically be accommodated without some form of undue educational or financial hardship to your students.

Act in good faith, do the right thing, and you’ll avoid striking out, … while still being able to best (and only) serve the unique needs of your student population.

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