Legislatively mandated “outing” is a form of compelled speech

On November 15, 2017, the Alberta Legislature passed Bill 24: An Act to Support Gay-Straight Alliances (GSAs). Previous legislation permits students to establish GSAs in Alberta schools, and Bill 24 extends GSA protections by prohibiting teachers from informing parents of students’ participation in GSAs without the permission of the student. The legislation is aimed at preventing the “outing” of students who choose to join a GSA and are uncomfortable sharing such information with their parents. The introduction of this legislation raises a number of potential civil liberties issues. On one hand, parents and religious-based schools are concerned about the bill’s impact on freedom of religion, expression, and association, along with parental rights. On the other hand, the proponents of the bill seek to guarantee the rights of students to exercise autonomy of their sexual identity without fear of being “outed”. Both perspectives will be explored in turn.

Parental Rights and Freedom of Religion and Expression

Advocating for parental and religious rights, the Justice Center for Constitutional Freedoms (JCCF) recently launched a court challenge, claiming that Bill 24 “violates the rights of parents and schools protected by section 2(a), 2(b), 2(d), and 7 rights” under Canada’s Charter of Rights and Freedoms. Alberta’s School Act mandates that school codes of conducts must comply with sections of the Act that might contradict the moral codes of conduct held by some independent schools and parents. Bill 24 amends the School Act by mandating the establishment of GSA clubs upon request. According to the JCCF, these provisions undermine section 2(a) of the Charter, which guarantee freedom of conscious and religion. Independent schools and parents hold “sincerely held religious beliefs regarding gender, marriage, and sexuality” and, according to JCCF’s claims, legislation requiring “government promoted ideology” contrary to these religious beliefs undermines freedom of conscious and religion.

The JCCF also points to section 2(b) of the Charter, which guarantees freedom of thought, belief, opinion, and expression. Bill 24 effectively compels independent schools to establish codes of conduct and clubs, even when those are in opposition to the school’s beliefs. Bill 24 also requires the Minister to write codes of conduct for schools not in compliance with the Act — something the JCCF argues could interfere with freedom of association under section 2(d).

Finally, JCCF argues that Bill 24 violates section 7 of the Charter, which guarantees life, liberty, and security of the person. According to JCCF, section 7 guarantees parental rights over decisions regarding their children’s education and development, including issues pertaining to morality and sexuality. By barring schools and teachers from notifying parents about their children’s membership in certain clubs, JCCF claims, Bill 24 effectively strips parents of their right to discharge parental responsibility and make decisions regarding education and morality.

The Rights and Autonomy of the Student

The arguments advanced by JCCF fail to account for the rights and perspectives of students. “Outing” students based on their association with a GSA would potentially engage several charter provisions as well as the Alberta Human Rights Act which supports the principle “that all persons are equal in: dignity, rights and responsibilities without regard to race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation.”

The School Act as it currently stands prohibits teachers from telling parents that a student has joined a GSA. However, nothing in the School Act prohibits parents from having a conversation with their child. And nothing prevents a student from telling their parents (or anyone else) they have joined a GSA. The elephant in the room is that if parents are unaware their child has joined a GSA it is because the child has chosen not to share that with their parents.

The proponents of parental rights argue for a legislative scheme that would require public servants – teachers – to observe, gather and record information about whether a student has chosen to join a GSA, and report that information to the student’s parents. What is the likely effect of such a measure? Well, if under the current legislation a student has chosen not to inform their parents that they have joined a GSA, that student is unlikely to join or continue to participate in the GSA if the legislation mandates disclosure to the student’s parents. The effect is a denial of access to the support and community that GSA’s offer LGBTQ students.

Further, the student will be effectively “outed” to their parents as LGBTQ and on terms not of their own choosing. A GSA’s straight allies are unlikely to care much about their parents being notified of their participation in a GSA. They can simply explain the nuance of being a straight ally. An LGBTQ student, however, will either have to reveal their sexual orientation to their parents or they will have to lie and pretend they are not who they truly are.

Several civil liberties issues flow from this. Section 2(b) of the Charter guarantees freedom of expression, which includes the right not to be compelled to speak. Legislatively mandated “outing” is a form of compelled speech, violating students’ freedom of expression. Further, Section 2(d) protects the fundamental freedom to establish, belong and maintain an association. Driving LGBTQ students away from GSA’s under threat of being outed to their parents effectively denies students the right to associate in the form of a GSA.

Further, section 7 protects every student’s right to life, liberty and security of the person, which cannot be deprived except in accordance with the principles of fundamental justice. The principles of fundamental justice include that a measure must not be grossly disproportionate to its objective. The right to liberty protects an irreducible sphere of individuality from deprivation by the state and applies whenever the law prevents a person from making fundamental personal choices. That irreducible sphere of individuality must include sexual orientation and gender identity, and a law which compels an LGBTQ individual to come out against their wishes deprives that individual of the fundamental personal choice of when, where, how and to whom they wish to come out to.

Security of the person guarantees the mental and physical wellbeing of LGBTQ students against interference by the state. A 2011 study found that 68% of transgender students, 55% of lesbian or bisexual students, and 42% of gay or bisexual students experience harassment and bullying based on their gender identity or sexual orientation. The extent of persecution includes physical harassment and assault in some cases, as well as sexual harassment. Driving students away from GSAs can only exacerbate these issues by depriving LGBTQ students of the safe, welcoming supportive community which GSAs foster for vulnerable students. Compelling disclosure of one’s sexual orientation also violates the principles of Alberta’s Human Rights Act that serve to safeguard equality rights and protect diversity. Any law that would effectively target individuals who join GSAs — regardless or because of their sexual orientation or gender — jeopardizes their safety and sends the very clear message that Alberta is not a safe or welcoming place for LGBTQ. Creating an environment that undermines individuals’ rights to security and privacy, as suggested by the proposed measure, would foster bullying and harassing of LGBTQ students and, indeed, anyone who associates with them through the common activity of being a member of a GSA.

Finally, section 15 guarantees equality before and under the law, as well as the equal protection and benefit of the law without discrimination based on, for example, sexual orientation or age. The law proposed by parental rights proponents would clearly have a disparate impact on LGBTQ youth. It would either overtly or effectively target GSAs, whose membership is comprised mostly, if not entirely, of LGBTQ youth. By driving students away from GSAs, the proposed measure perpetuates prejudice against LGBTQ youth and denies them access to the beneficial support which GSAs provide. The effect is a law that widens the gap between a disadvantaged group of young people and the rest of society, and invites further discrimination towards members of GSAs. Such discrimination is both an unconstitutional violation of Canada’s Charter or Rights and Freedoms and a violation of Alberta’s Human Rights Act.

In addition, disclosing a child’s at-school activities without the child’s consent would breach the child’s rights under the province’s Freedom of Information and Protection of Privacy Act. FOIP states that “A public body [a school] may use personal information only to the extent necessary to enable the public body to carry out its purpose in a reasonable manner” and the Education Act is clear that the purpose of a school is education. Indeed, the Education Act states that “the educational best interest of the child is the paramount consideration in making decisions about a child’s education.” The Education Act does acknowledge that “parents have the right and the responsibility to make informed decisions respecting the education of their children,” however, participation in a voluntary student organization falls outside the parameters of education.

Furthermore, the Education Act is clear that staff members shall act as the liaison for voluntary student-established organizations but does not provide for staff to attend the meetings or monitor participation. Thus, monitoring students’ extra-curricular activities and club memberships would be beyond the scope of the Education Act; and revealing such activities, without the student’s consent, would be a breach of their privacy rights and a contravention, by the school, of the Freedom of Information and Protection of Privacy Act.

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