The modernization of Ontario’s education system is possible and could be on the horizon.
The story that began in Catholic high schools, where students have been fighting to create gay-straight alliances (GSAs), could very well conclude in a courtroom or on Parliament Hill.
Since January, when the Halton Catholic District School Board banned GSAs and the board chair compared the student clubs to Nazi groups, there have been calls for Ontario to abolish public funding for Catholic schools. The Canadian Civil Liberties Association (CCLA) says denying students GSAs tramples on fundamental human rights.
“Our focus at the CCLA, for almost a year now, has been what is happening in Catholic schools in relation to how they are treating their [lesbian, gay, bisexual, trans and queer] students,” says Noa Mendelsohn Aviv, director of CCLA’s equality program.
The position of the CCLA has remained the same: “The government should stop funding Catholic schools altogether,” Mendelsohn Aviv says. “Our concern is that these students are being abandoned by the Catholic school authorities who are supposed to be watching out for their well-being and safety.”
The first legal challenge could come from Leanne Iskander, the 17-year-old Mississauga student who is at the centre of the story for leading a group of St Joseph Catholic Secondary School students in a bitter fight to start a GSA. St Joseph’s has blocked Iskander from starting a GSA, most recently in September. Iskander is currently in discussion with a lawyer to decide on the best legal strategy.
The stalemate between Ontario Catholic school administrators and students has added to the number of voices calling for change. A Sept 2 Globe and Mail editorial stated: “Whether a religion condones homosexuality or not, publicly funded schools have a duty to promote tolerance.” Meanwhile, on Sept 19, National Post columnist Chris Selley wrote: “The answer isn’t to force Catholic schools to go against Catholic teachings. The answer is to keep Catholic teachings — and Muslim ones and Jewish ones and Protestant ones — out of public schools.”
Early in her fight for a GSA, Iskander launched the advocacy group Catholic Students for GSAs (CS4GSAs), and she has been encouraging and mentoring other Catholic students as they prepare to launch their own support groups. This defies warnings from her principal, who has threatened disciplinary action if she continues.
“We want GSAs, but most of us wouldn’t have a problem if the Catholic system ended up being defunded,” says Iskander, noting that she’d prefer to see change happen from within schools. “I think it is the government’s responsibility to ensure schools are following policy and allowing GSAs. But I completely understand the argument against funding for Catholic schools.”
Anna Tran, 17, a student from Mississauga’s Father Michael Goetz Catholic Secondary School, is putting the finishing touches on a GSA proposal of her own. Her school petition already has 130 signatures.
Tran was recently asked by a teacher and vice-principal to remove her CS4GSA button. “He said it wasn’t uniform regulation, but I have seen other students wear buttons at school.”
So how can students like Tran and Iskander harness the law to fight back?
Mendelsohn Aviv says students have a right to basic charter protection. “They have a right to freedom of speech. They have a right to freedom of association. They have a right to equality. They don’t have to justify why they need a GSA. The Catholic school boards need to justify why they want to shut them down.”
Legal experts say that the Catholic school board’s denominational rights, which are guaranteed by Section 93 of the Constitutional Act, do not justify discrimination.
A constitutional challenge is possible and there are precedents.
In 1988, Quebec passed a new education act, Bill 107, ushering in broad school board reform. The Quebec public school system moved from one that was divided according to faith to a language-based system. Catholic and Protestant boards were dissolved.
In 1997, Newfoundlanders voted in a referendum to merge all publicly funded school boards under a “multidenominational” system in which students learn about all religions. At the time, the government said the change would save up to $30 million a year by merging the province’s 27 existing school boards.
From an economic perspective, continuing with the Catholic school system in Ontario is also wasteful, costing Ontario taxpayers about $500 million a year in doubled-up salaries, services and utilities at a time when schools face declining enrollment, notes the One School System Network.
Peter Hogg, the author of Constitutional Law of Canada and a former dean of Osgoode Hall Law School, says a constitutional amendment “would simply involve the federal government and only the Ontario government. Each will get their legislature to adopt the change, and that’s all that’s needed.”
Hogg, whose writing often appears in Supreme Court decisions, admits it’s not easy to get the provincial and federal governments to agree.
Any member of Parliament could present the motion, he says, “so the government would have to be persuaded this was a good thing to do. And, of course, the ideology of whatever government is in power would tip the balance.”
But constitutional law expert Lorraine Weinrib is doubtful that the Ontario government — regardless of which party wins the election — would support an amendment, even if the public wants it.
“Quite a considerable number of the students in the Catholic school system are not Catholic, so we have to question what the modern function of the Catholic school system is,” she says, noting that many parents prefer the socially conservative education their children receive at Catholic schools. “That’s the larger question that frames this whole debate.”
According to Statistics Canada, a high percentage of Ontarians identify as Roman Catholic: 34 percent in 2001, compared to 35 percent Protestant.
Catholics were a minority at Confederation. Denominational rights were inserted into the 1867 British North America Act to protect the minority, mostly French-speaking, Catholics from discrimination. That “special right” is now used to discriminate against students like Iskander and Tran.
Constitutional lawyer Doug Elliott has been working behind the scenes researching legal strategies.
“Litigation is never easy, but it’s another weapon in our arsenal and one that’s been used very effectively over the past 30 years,” he says. “Gays and lesbians are by far the most successful group to win charter challenges. We have had about 80 percent success rate on cases.”
Iskander has a few options, says Elliott, beginning with a human rights complaint. “One approach is a class action lawsuit against the provincial government for damages.”
A court case could, for instance, rule that GSAs must be allowed in Catholic schools. But it can’t rule that the denominational rights clauses in the Constitution should be struck on Charter grounds. The courts can’t rule that a provision of the Constitution is unconstitutional.
Elliott says that Marc Hall, the Durham Catholic District School Board student who was told he couldn’t take his boyfriend to the prom, is an obvious parallel case that never got as far as a charter challenge. “Marc Hall’s case provides the most instructive of any that we’ve done.”
Hall got an injunction, meaning the courts told the school board it had to allow Hall to go to the prom with his boyfriend. Elliott says that if Ontario Catholic schools continue to deny students GSAs, a similar injunction is possible.
If Iskander launches a charter challenge, she will likely find herself in uncharted waters.
Ultimately, Iskander says, she is in support of Ontario adopting one secular public school system. “It would just be better overall, and students would face less discrimination.”
The question of whether denominational rights are fundamentally discriminatory to queer students is something the courts have never ruled on, Hogg says. “The only thing the courts have ruled on is that it’s not required to have other forms of religious schools as a matter of equality because Section 93 explicitly authorizes the creation of Catholic denominational schools. That’s the only ruling that’s occurred.”
Weinrib says that although GSAs have galvanized students and activists into action, many in Ontario remain unaware of the discrimination in Catholic schools. “We simply don’t know how many people in Ontario have concerns over the Catholic school system,” she says. “We’ve seen the Catholic boards oppose the new sex education curriculum, gay students at proms and now this GSA issue… Maybe that’s the thin edge of the wedge.”
Iskander says discrimination is deeply embedded in Catholic schools. That’s why she’s advocating to make all Catholic schools inclusive for queer youth, inside the classroom and out. As bishops and Catholic trustees cling to 19th-century special rights, youth like Iskander see an opportunity for Ontario to make a dramatic and progressive shift toward ensuring equality for everyone.