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Question: How does the coming into force of the Education Act affect sexual and gender minority students and staff?
Answer: As covered elsewhere in this issue of the ATA News, the government passed Bill 8 after an acrimonious and lengthy debate. The bill amends the Education Act which, effective Sept. 1, 2019, replaces the School Act.
For the most part, this change will have little impact on the day-to-day operation of schools, or the lives of students and teachers, but it does have the effect of removing the clear and specific direction and protections provided by the previous New Democratic government’s Bill 24 amendments to the School Act. This leaves teachers, principals and system administrators to determine how they will respond to specific situations that might emerge concerning the establishment and operation of GSAs/QSAs and potential discrimination in employment matters on the basis of sexual or gender orientation.
When confronted by these sorts of issues, certificated teachers, as members of the Association, must be mindful at all times that they are subject to the Code of Professional Conduct, which requires that
1. the teacher teaches in a manner that respects the dignity and rights of all persons without prejudice as to race, religious beliefs, colour, gender, sexual orientation, gender identity, gender expression, physical characteristics, disability, marital status, family status, age, ancestry, place of origin, place of residence, socioeconomic background or linguistic background … ;
4. the teacher treats pupils with dignity and respect and is considerate of their circumstances … ;
5. the teacher may not divulge information about a pupil received in confidence or in the course of professional duties except as required by law or where, in the judgment of the teacher, to do so is in the best interest of the pupil … .
The provisions of the code are broadly written, and if teachers are unsure of their professional obligations in a specific situation, they should contact ATA Member Services directly for advice. A teacher’s employer or a person in a supervisory position cannot by policy or direction exempt the teacher from their professional obligations under the code: “I was just following orders” is not a defence.
One specific question that might arise concerns how teachers should respond if asked to divulge whether a student is participating in a GSA or QSA. Apart from the obvious code implications, providing such information may be a violation of the Freedom of Information and Protection of Privacy (FOIP) Act. The Office of the Information and Privacy Commissioner has issued an advisory indicating that disclosing information about a student’s membership or participation in a GSA to any person, including a parent, would very likely be a violation of that student’s privacy and subject to sanction, except in the exceptional circumstance that the disclosure is necessary to avert or minimize a risk of harm to the health or safety of a minor.
To be clear, this is a very high bar and it is certainly not the case that a student participating in a GSA is in and of itself indicative of a risk to that student. Should a teacher be pressured to disclose such information, they should contact the Association immediately for assistance.
An issue of particular concern to principals concerns the process for the establishment of a GSA/QSA. Despite the change in legislation, the right of students to establish an alliance and the obligation on principals to facilitate the process remains. Although there are no longer specific stipulations that a principal has to “immediately” establish an alliance or entirely defer to students when determining its exact name, principals should not attempt to obstruct or delay the process. Alberta Education has summarized expectations around the creation and operation of GSAs/QSAs in a fact sheet that is available at https://alberta.ca/assets/documents/education-GSA-fact-sheet.pdf.
Perhaps the most significant change resulting from the replacement of the School Act with the Education Act is the loss of explicit protection in matters of employment for teachers and other staff who are LGTBQ. While teachers and staff employed by the province’s public school authorities benefit from clear protections in provincial and federal law from discrimination on the basis of sexual or gender identity, the situation for those employed in Catholic jurisdictions is currently unclear. Ultimately, the legal ability of a denominational school to discriminate on the basis of sexual or gender identity or practices involves an interplay between the equality rights and protections set out in the Canadian Charter of Rights and Freedoms and the protection provided by the Constitution of Canada to denominational, separate or dissentient schools.
I expect that it is only a matter of time before the Supreme Court will be required to settle this matter; until then, however, we must muddle through. Any teacher who is concerned that their employment situation or conditions are being affected by their sexual or gender identity should refrain from making precipitous decisions and contact the Association immediately for assistance. ❚
Questions for consideration in this column are welcome. Please address them to Dennis Theobald at Barnett House (dennis.theobald@ata.ab.ca).
