5 min

‘Disastrous ruling’ for queer students

Government may have to take lead: Mayencourt

Credit: Robin Perelle

It’s astounding, says gay educator Steve LeBel, talking about the BC Supreme Court’s recent ruling in Azmi Jubran vs the North Vancouver school board.

Last year, BC’s human rights tribunal held the board responsible for failing to stop years of homophobic attacks against Jubran while he was a student at Handsworth high school. The tribunal also told the board to take proactive steps to wipe homophobia out of its district, rather than continuing to respond on a case-by-case basis.

Now, that ruling has been overturned-and LeBel is worried.

In his Jan 2 ruling, BC Supreme Court Justice Allan Stewart acknowledges that Jubran’s “high school years were a living hell” and that his tormentors specifically launched homophobic attacks, reflecting their hatred of all things homosexual. But, Stewart says, Jubran is not entitled to protection under BC’s human rights act because he is not gay and his attackers claim they didn’t see him as gay.

That’s too narrow a reading of human rights law, argues John Fisher, the executive director of Egale, Canada’s national gay lobby group.

Courts and tribunals are supposed to interpret human rights law as broadly as possible, Fisher explains. The role of the judge is to “maximize” human rights protections, including protection against sexual orientation-based discrimination, under section eight of BC’s code.

The reality is, Jubran endured a campaign of homophobic harassment, no matter how he identifies, Fisher concludes.

LeBel agrees. Just because Jubran doesn’t identify as gay doesn’t mean he wasn’t repeatedly gay-bashed, he told Xtra West a few months ago. “The core issue is that the harassment occurs.”

This was more than just general bullying, concurs Jubran, exhausted after his long nightmare. “I was specifically called gay, faggot, queer, homo.” And on at least one occasion, the kids specifically referred to their attacks as gay-bashing, Jubran adds.

The fact that Jubran’s attackers later told the tribunal they never really believed that Jubran was gay, is no excuse, Fisher says. If attackers can simply say ‘gee, we didn’t think he was gay’ after the fact, “it’s essentially open season” on young queers throughout the school system.

“This is a disastrous ruling for youth seeking a harassment-free environment in schools,” he continues.

Lesbian lawyer barbara findlay agrees. “I think this is a very dangerous judgement,” she says. “It creates not just a loophole but a barn door through which anyone can pass simply by saying, ‘I thought he was straight.'”

That’s just one of the reasons Fisher is hoping Jubran will challenge the ruling. This is bad law, he says, pledging Egale’s support if Jubran appeals.

Jubran isn’t sure what he wants to do next. He was contemplating his options and waiting to talk to his lawyer, Clea Parfitt, when he spoke to Xtra West on Jan 13. Parfitt was out of town when the ruling came out and could not be reached for comment.

Jubran can’t help but feel disheartened by the whole ordeal. “I can’t even put it in words, really,” he sighs. “I feel I’m no better off than when I filed [my complaint with the tribunal in 1996.] It’s sad.”

This ruling is going to have a “chilling effect” throughout the BC school system, Fisher predicts. For one thing, it’s telling queer and questioning students that they’re not entitled to protection from homophobic harassment unless they’re willing and able to come out to the people tormenting them.

“Don’t you find that chilling?” asks LeBel. “I think it’s perverse.”

The Jan 2 ruling also quashes the tribunal’s finding that school boards are responsible for taking proactive steps to eliminate homophobia and ensure their schools are discrimination-free.

The BC Supreme Court just let school boards off the hook, LeBel says in disgust.

Fisher shares his concern. It’s important to place “a higher onus on school boards than simply relying on their good will,” he says. There’s a big difference between ordering school boards to fight homophobia and allowing them to address it only if they feel like it.

Jane Bouey agrees. The newly elected COPE trustees on the Vancouver school board is worried that some school boards may take the new ruling as an excuse not to address homophobia.

Still, Bouey, who is queer, takes heart in a memo released shortly after the ruling by BC’s School Trustees Association. In it, the Vancouver-based association urges its members not to disregard the message of responsibility put forth by the initial tribunal ruling.

“It is not enough that school authorities deal with bullying and homophobic incidents as they arise,” reads the memo. “School boards are expected to address these issues in a broader and more proactive way, including clear communication to students of behavioural expectations.”

But, Bouey admits, the association’s position is not binding on its member school boards. This is just a recommendation, she says. “School boards can have whatever position they want on it.” And hostile boards probably won’t be swayed by it, she adds.

That’s why Bouey thinks the time has come for the government to step in. If the BC Supreme Court won’t tell school boards to wipe homophobia out of their schools, the provincial government should.

The time is especially right at this moment, she notes, because the Safe Schools Task Force, led by gay MLA Lorne Mayencourt, is planning to present its recommendations for improving school safety to the government by the end of January.

One recommendation Bouey would like to see is a directive to all BC schools to specifically cite homophobia as a prohibited form of discrimination in their codes of conduct.

“We need to be doing as much [as possible] pro-actively to ensure that these sorts of instances do not take place,” she says.

Mayencourt says he agrees that the government should step in if the court’s new ruling overturned the tribunal’s original finding on school board responsibility. But, he says, he can’t reveal what recommendations the task force is going to make until he presents them to caucus in a few weeks.

The Vancouver-Burrard MLA will say that the issue of homophobia came up again and again during the task force’s consultations.

“People want us to address homophobia across the board,” he says. They want to see more teacher sensitivity training, more curriculum inclusion and anti-discrimination policies that address homophobia “directly and head-on.”

When asked if British Columbians can look forward to seeing these suggestions among the task force’s official recommendations, Mayencourt pauses. “I am cautiously optimistic,” he replies.

Meanwhile, the North Vancouver school board at the centre of the storm says the BC Supreme Court’s ruling won’t de-rail the anti-bullying program it implemented after the tribunal decision.

“We have all learned from that [experience],” says Richard White, chair of the North Vancouver school trustees. “Our school district, and I think school districts across the province, recognize that you can’t stop and rest on your laurels. You have to innovate.”

But, when asked if the new anti-bullying program specifically mentions homophobia, White falls silent. “Um, I would have to look at the text,” he eventually replies.

Several minutes later, he admits that the new program still doesn’t address homophobia directly.

When asked if, after all the homophobic harassment Jubran endured and the school board’s attempts to challenge him in court, it might be important to signal to students that a new, gay-friendly era has dawned, White says no.

“The message we’re sending them is that all forms of verbal harassment are unacceptable,” he insists.

That’s not enough, says findlay and many other gay and lesbian education activists. Students and teachers need to be taught explicitly that homophobia counts as harassment and that it will not be tolerated.

For Jubran, the answer comes back to holding school boards responsible for eliminating homophobia and making their schools discrimination-free.

“If schools were responsible for these acts, I almost guarantee you will not see anything like what happened to me,” he says. But until they are pressured to respond, many won’t do anything about it.

And that’s sad, he concludes. “No one deserves to have to go through [what I went through]. We are there to learn.”