In early October of 2008, substitute teacher Jan Buterman was informed that he was being dropped from the teacher list and should not report to a scheduled class that day. Jan had spoken with the Deputy Superintendent at the Greater St. Albert Catholic Regional Division No. 29 the previous June about his transition from female to male and that he would be returning to work after the summer break as Mr. Buterman — a minor change, since he had a mostly masculine gender presentation as it was. But in the start of October, the Archbishop of the Edmonton Diocese of the Catholic Church objected, and directed the school board to end his employment. The Archbishop felt that Jan “would create confusion and complexity with students and parents as a model and witness to Catholic faith values.” This from the organization that felt that the best way to deal with pedophile priests was to give them a free ride to a faraway diocese and a get out of jail free card… and have other pedophile priests cut a deal with the victims.
In Alberta, Canada, the Catholic School Board is publicly funded, and therefore subject to the same standards as any government entity. Nevertheless, the Archbishop and School Division felt so strongly about the need to fire him for transition — even though there is no quantitative reason to believe that students are in any way negatively affected by the presence of trans teachers — that they put it in writing.
Alberta has encountered this type of issue before. In 1991, chemistry lab instructor Delwin Vriend was fired by The King's College (a private college — now a University College — operated by the Christian Reformed Church) for being gay. He attempted to file a complaint with the Alberta Human Rights Commission, which refused to hear the case on the grounds that sexual orientation was not a protected class. He then fought the case in an Alberta court and won in 1994, but the Province stepped in and appealed, and the ruling was overturned in 1996. At that point, Vriend took on the Province and appealed to the Supreme Court of Canada, which finally ruled in 1998 that Provinces could not exclude gay, lesbian and bisexual people from human rights legislation. This landmark ruling won equal rights for GLB people across Canada.
Gender identity, however, is only expressly protected in Canada's Northwest Territories. Since Vriend v. Alberta, Canadian Human Rights Commissions have considered gender identity and expression as “read in” to the Human Rights Act alternately under the terms “sex” or “gender.” As in most situations where there is implicit inclusion, any time a case goes before the Commission, it needs to be repeatedly demonstrated how transsexuality qualifies as a gender class, and even then, other factors can sometimes be given more weight. Earlier this year, a U.S. court gave more weight to a company dress code than to an employee's gender identity in a similar circumstance — Canada's track record has been better so far, but there are no guarantees.
In June of this year, Member of the Legislative Assembly (MLA) Laurie Blakeman tabled an amendment to Alberta's Human Rights Act that would have added gender identity to the list of protected classes — MLA Ken Allred led the charge against this, claiming that the amendment was duplicitous and unnecessary, and the ruling Conservatives overwhelmingly voted against it. This led to some speculation that the Alberta Government might try to use a similar tack to Vriend's case by pushing the Alberta HRC to rule that gender identity is not a protected class, in order to dismiss several complaints being filed when Genital Reassignment Surgery (GRS) was delisted from Health Care Coverage. However, Albertans remember the embarrassing attitudes of the Ralph Klein government when this was attempted before, and the stinging cost of losing that battle, so there is little political will to do so. So far, the AHRC is viewing the GRS-related complaints seriously and the first few have been forwarded to the Province for a response.
Federally, Member of Parliament (MP) Bill Siksay will be bringing a Private Member's Bill up for debate in the House of Commons this Fall (assuming that the minority government doesn't fold before then) calling for explicit inclusion of gender identity in hate crimes and non-discrimination legislation. Nudge-nudge to Canadians to remember to enlighten your MP.
Canadian Human Rights Commissions have been under mounting pressure for the last few years from right-wing commentators and interest groups / churches, saying that hate speech provisions impose upon their freedom of speech. Some of the most vocal critics of human rights commissions have been Ezra Levant, Mark Steyn, The National Post and Jonathan Kay, MacLeans Magazine, Rev. Stephen Boissin, the Roman Catholic Church, Marc Lemire, Mark and Connie Fournier and Paul Fromm (Lemire, Fromm and the Fourniers also have ties to white supremacists, though with the exception of Fromm, they've been largely able to whitewash that). No surprise: virtually all of them have been on the losing end of hate speech cases. But they've also been able to whip up the Conservative base into a frenzy of calls to abolish Human Rights Commissions.
The Nixon v. Rape Relief case surrounding a transsexual woman's right to train as a rape counsellor, the reinstatement of GRS in Ontario, the pending GRS-related cases in Alberta, a case against a women-only gym owner, a case in which an Ontario surgeon refused to do cosmetic revisions to 2 vaginaplasties not caring if there were no other local options, and a couple other cases revolving around transsexuals are inevitably the cases always put forward and twisted out of context in order to make the statement that Human Rights Commissions are out of touch with reality. Most of the arguments are against hate speech, but non-speech cases involving transsexuals appear to be the support “evidence” of choice. Alberta's HRC was the location of one of the best known hate speech cases in Canada, Lund v. Boissoin, over a conservative minister's letter to the Red Deer Advocate a few years ago — which has recently been heard for appeal.
I expect that in the same way Rev. Boissoin's case has been flogged by conservative media to say that legislation designed to prevent incitement against GLB people stifles free speech, this case will be used to raise fears about ENDA and similar legislation. If and when it does, it needs to be remembered that the Greater St. Albert Catholic Regional Division is a publicly funded institution. Of course, Catholic School Boards haven't always abided by Provincial standards, such as some boards' decisions to refuse to offer HPV vaccinations for students — but it does mean that regulatory standards are supposed to apply.
In the meantime, Jan Buterman has been struggling to stay afloat and is hoping for a quick resolution.