Bill 18's infringements on religious belief are 'reasonable'

Bill 18 does not violate religious freedom. In fact, the proposed legislative initiatives are required to protect queer students from bullying.

Permitting students to form a GSA, a gay-straight alliance, has no impact on the belief systems of other students, their parents, a school division or anyone else. The Supreme Court of Canada has stated clearly that merely recognizing the equality rights of one group, sexual minority students in this instance, does not in itself constitute an infringement of the equality rights of another -- those asserting religious freedom rights.

Bill 18 does not impose religious beliefs on anyone. Any argument that Bill 18 infringes religious freedom, either of students or of a school division, is weak and would have to give way to a Charter equality rights claim. The objective of Bill 18 is to ensure that all students, including sexual minority students, have safe and equal access to education.

The Supreme Court of Canada has made it clear that a sincerely held religious belief is subject to Charter protection. In order to establish that religious freedom has been infringed, however, there must be evidence of a "significant infringement" to that belief as a result of state action. At most, any interference is trivial, such as requiring an administrative assistant to make a room booking or to deal with other minor administrative matters related to the GSA.

The principle that freedom of religion is a right to hold such religious beliefs as an individual chooses is well-established. Religious freedom also includes the right to engage in religious practices and to declare one's religious beliefs openly. Some will argue they are compelled by religious belief to speak out against sexual minority students and the presence of GSAs. It also is well-established, however, that all of these religious freedoms are subject to those limitations that are necessary to protect the safety or the fundamental rights and freedoms of others.

In February 2013, the Supreme Court of Canada ruled in Whatcott that freedom of religious speech and the freedom to teach or share religious beliefs was subject to reasonable limitations. In particular, the court said religious freedom is limited by the requirement that the exercise of these rights not be accomplished through hate speech.

It is important to bear in mind that Whatcott dealt with speech in the public arena, the larger marketplace of ideas. Rules can be different in a closed environment such as a school or a workplace. In specific environments, we have the right to be free from harassment, belittlement and ridicule.

The opposition to Bill 18 is unfolding in the context of schools populated by vulnerable teenagers. In the context of schools, it is even clearer that any speech that delegitimizes and rejects a particular group in the eyes of the majority would not be permitted.

My own work in schools confirms that the attempt to delegitimize and harm not only abounds in schools, but is often the norm in particular schools and in some communities.

Given the ameliorative purposes at the heart of Bill 18 -- confronting the problem of bullying, particularly homophobic, transphobic and gender-based bullying -- any limitation on expression grounded in a sincerely held religious belief or otherwise, would most likely be viewed as a reasonable limitation on religious expression.

Therefore, rather than undermining Bill 18 as some have argued, the decisions of the Supreme Court of Canada establish that Bill 18 is on solid legal ground and achieves a just and appropriate balance between both of the rights that are engaged by the proposed legislative proposals.

Donn Short is a law professor at the University of Manitoba. The author of Don't Be So Gay! Queers, Bullying, and Making Schools Safe, published this month by UBC Press, he teaches human rights law and education law.

See related Overreacting to bullies at wfp.to/comment

Republished from the Winnipeg Free Press print edition March 19, 2013 A11