Thursday, May 07, 2009

Bill 44 - Subtle and Destructive Legislation

Frankly, I think that much of what has been said about Bill 44 is based on misinterpretations of the wording in the legislation.

When Brian Rushfeldt opens his yap, you have to wonder just where Charles McVety's hand is, though:

The head of a national Christian lobby group says parents, not educators, will decide when to apply new rights allowing them to pull kids from controversial classes if enshrined in Alberta's human rights laws.

Provincial officials have insisted Bill 44, which saw some heated debate Wednesday during second reading in the legislature, would exclusively apply to teachings of sexuality, sexual orientation and religion.

But Brian Rushfeldt, co-founder of the Calgary-based Canada Family Action Coalition, says the proposed human rights provision can be more widely interpreted.

"It's up to the parent to make (the legislation) as broad or as narrow as they want," said Rushfeldt, who welcomed the proposed changes.

"I don't know that the schools nor the government should be the ones to put parameters on it and say it's only sexuality classes or only evolution classes or only religion classes."


The reason I don't buy a broad interpretation here is simple. The proposed wording (at present) is quite limited:

subject-matter that deals explicitly with religion, sexuality or
sexual orientation.


That said, however, we have to recognize that the wingnuts are going to try to use it any way they think they can get away with. That will doubtless include vocal and incessant whining when some of Shakespeare's works are being studied; or for that matter contemporary literature of any sort.

I don't think it will allow them to pull their children out of science class, when the subject happens to offend someone's religious views - that isn't my sense of the wording.

However, what it does do is quite fundamentally undermine the very notion of tolerance and understanding when it comes to sexual minorities. Because sexuality and sexual orientation are specifically mentioned, this in essence gives a blanket right to parents to continue to foster ignorance and bigotry towards GLBT Albertans. It appears to once again reinforce the double standard of conservatives when it comes to equality rights.

From Alberta's Hansards:

Ms Notley: Well, I suspect that the minister had trouble understanding
the question because he doesn’t understand the issue. Your
proposed policy will clearly allow children to be removed from
classes which discuss sexual orientation. Presumably, that includes
where a teacher instructs that sexual orientation is a protected
equality right under the Charter of Rights and Freedoms. Why is the
minister supporting a plan to limit the ability of teachers to talk
about our human rights code to our Alberta children?

Mr. Blackett: Mr. Speaker, what we are doing is saying that, you
know, the provisions are already given to our parents in the School
Act. We will continue to do that. With respect to sexual orientation,
they have that provision to opt out now. They will have that
provision going forward.


I think Rachel Notley's speech in the legislature on Bill-44 warrants further reading as well:

Ms Notley: Thank you, Mr. Speaker. I’m pleased to be able to
finally have an opportunity to speak at more length about this issue.
I won’t go so far as to say that I’m pleased at the opportunity
because I think that the fact that this bill is coming into this House
today is, in my view, very disturbing to me as a member of this
Assembly, and in some ways, you know, I’m quite sad today,
actually, that I need to be in the House outlining the significant
concerns that exist around elements of this piece of legislation.
What should be a time for a significant portion of Albertans to
celebrate a long-awaited symbolic recognition of their equality has
instead turned into this debate, which, in my view, undermines the
impression ofAlbertans to the rest of the world, undermines our own
collective commitment to education and to diversity and to a full,
thoughtful discussion of things, and ultimately undermines the very
new right which we are in the process of being about to recognize.
Let me just talk a little bit about that. Obviously, the key issue
with respect to this bill is section 11, and that’s, of course, the part
of the bill that would allow parents to have their children opt out of
instruction that deals explicitly with religion, sexuality, or sexual
orientation. It is this particular section which, in my view, represents
a very dark day in the history of this province.
Let me talk first about the issue with respect to religion. Now, I
respect the right of parents to choose what religious instruction their
children will or will not receive. Personally, I would prefer to see a
system where all children were given a very neutral survey course
on what different types of religion look like. That’s my personal
belief of what would represent the most enlightened approach to
educating my children. But I understand that my belief is not
everyone’s belief, and I appreciate that some people feel very
strongly that they don’t want their children’s religious instruction
that they receive at home and their beliefs – it goes beyond just
instruction – to be challenged in the school setting, and that’s fine.
Section 50 of the School Act deals with that issue. It deals with
that already. The School Act talks about education. The School Act
talks about parents’ rights in relation to their children’s education.
The School Act talks about that whole milieu. It is not necessary to
put that provision into the human rights code. The human rights
code is not a document designed to undermine the very rights which
are included in the human rights code. It is not a document designed
to, as the Member for Airdrie-Chestermere talked about, bow to
every different person’s version of what is politically correct today
or tomorrow or the next day. It is a set of rights that we presumably
all agree all people have. So I’m very concerned about muddying
the waters with a statement that we are prepared to undermine some
of those rights in certain circumstances.
Now, I’ll talk a little bit about how it is I believe we’re doing that,
but I want to just stay for a moment on the issue of religious
instruction. One of the problems with putting this into the human rights
code and taking it out of the School Act is that you make it a
human right, and with that comes a whole slew of legal consequences
and implications. It allows for a broad range of interpretive
efforts to be applied to it. What we’re putting in it right now could
be amended through a great deal of litigation in the future, and
because it’s an active right which is found in the code, it will be
treated differently than what’s in the School Act, which is essentially
an administrative provision.
Right now in our schools what theoretically happens is if religious
instruction – and, of course, the School Act only talks about
religious instruction. The School Act does not allow parents to pull
their kids because somebody talks about the dreaded sexual
orientation. Let’s just say for a moment we’re talking about the
issue of religion. If religion is brought up, the family needs to get
notice. Well, that’s fine. What does the notice ultimately look like?
At the beginning of the year, can the school board say: from time to
time in grade 12 the social studies curriculum will call on the teacher
to engage in discussions that will cover issues that may cover
religion, that may cover theories of evolution, that may cover
philosophicaldiscussionsthathaveimplicationsforcertainreligions,
which may cover the concept of, for instance, gender equity and
gender equality? If they give that notice, is that enough? Can the
parent then simply provide the notice to the teacher, and then every
time those issues come up in the teaching moments that we’ve talked
so much about, the teacher just says to the child: you have the option
now to leave the room because we’re talking about these issues. Is
that the way it would work?
Well, now that it’s in the human rights code, it is entirely possible
that the parents would be able to go and say: “Well, this right that
you’re giving me is meaningless if it’s administered this way, so in
fact what you need to do is give me notice every time it’s going to
happen. You’ve got to give me dates. You’ve got to give me
content. You’ve got to give me written curriculum because
otherwise this right that you’ve now given me in the human rights
code of my province is meaningless.” That’s what happens when
you put it in the code. So then suddenly we create chaos.
Alternatively theycan turn around and say: “You’ve given me this
right, but in my exercising this right, my child has to now sit in the
hall playing with his DS or something like that. In effect my child
is being discriminated against now because I cannot crystalize or act
upon my right that is in the code without otherwise adversely
impacting my child by making him or her sit in the hall. Therefore,
you’ve breached my right, so you need to actually come up with a
whole new way to teach my child during the time that that education’s
going on.”
With all of these things, this is not trying to create a panic. This
is not trying to blow it up beyond what it is. It’s not. This is the
kind of thing that happens when you put a new right into the human
rights code, and let’s just be clear: this is a new right that we are
putting into the human rights code. There is no other human rights
code in the country that has this right embedded in the code. It is
embedded elsewhere, not in the human rights code. This is the kind
of chaos that we will create.
Then, of course, the other thing is that under the School Act it is
not necessarily the case that the teacher would become the subject,
a respondent in a human rights commission hearing. The teacher
would not necessarily become compelled to defend their course of
study, defend the way in which the particular issue came up in the
class. They wouldn’t under the School Act. They will now, another
consequence of putting it into the human rights code.


Lastly, a few links to some better commentary on this subject:


The Saskatoon Star-Phoenix has an excellent take on a poorly considered piece of legislation.

Ken Chapman has covered things quite thoughtfully as well.

Don Braid catches how thoroughly screwed up the Stelmach government's priorities are.

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