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How to legislatively 'balance' human rights: You can't.

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Image: Flickr/jglsongs

There is a simple, time-honoured rule about attempting to "balance" human rights classes in legislation so that it works out a particular way every time, and it goes like this:

You can't.

That is a court's role. When two human rights classes are put into conflict in a way that creates hardships for both, a court becomes the arbiter, weighing the context of a given situation in order to determine which party has experienced the most undue hardship.

Legislating in such a way that one party's rights always supersedes the other creates a hierarchy of rights, and defeats the whole purpose of equal rights legislation.

Bill 10

That is what took place this week with Alberta's Bill 10, which newly-crowned Premier Jim Prentice introduced to dump and replace Liberal MLA Laurie Blakeman's Bill 202.

The latter bill sought to do three things:

  1. Give students the right to form Gay-Straight Alliances (GSAs) when and if they wanted to;
  2. Remove a section (s.11.1) of the Alberta Human Rights Act which called for parents to be notified and either evacuate their children or opt them into anything that taught tolerance of LGBT people (interesting trivia: Alberta is the only jurisdiction in the world that has a "parental rights" clause like this, and it took several years to implement because no one was sure how it could work); and
  3. Add a mention of the Charter of Rights and Freedoms and the Alberta Human Rights Act to the Education Act.

    Premier Prentice's new Bill 10 does this:

    1. Encourages school boards to allow GSAs;
    2. Allow the students to sue the school boards if they don't (presuming they can find enough legal help, information, support and funding to cover the legal expenses to do so, and ride out the years of delay tactics at boards' disposal);
    3. The bill also removes s.11.1 from the Alberta Human Rights Act, but makes changes to legislation which more or less negates the change, other than affecting the way complaints are addressed.

      If at any point the Premier thought he had sliced through a Gordian Knot worthy of Alexander, he soon realized otherwise. As the bill came up for Third Reading, several amendments were proposed by opposition MLAs, and Prentice is now said to also be considering some of his own.

      There are two central conflicts within this debate, one that is discussed frequently during many debates on social issues, and another which has been barely remarked upon at all.

      'LGBT rights vs. religious freedom'

      The first is the false equivalence between LGBT human rights and religious freedom.  The reason I call it a false equivalence is because what we're really talking about is the complaint that the ("special," as it's sometimes called) right of lesbian, gay, bisexual and trans* people to have equal access to employment, housing, services and other forms of enfranchisement is trumping the ("perfectly ordinary everyday?") right to deny LGBT people any or all of those things. People retain the freedom to believe what they will, practice their faith, and speak their beliefs -- all up to the point where doing so becomes harassing and disenfranchising to others. In most of the situations that are framed as pitting LGBT rights against religious freedom, this sort of conflict can only be considered equally matched if you believe that coexistence is a violation religious conscience.

      But the "gay rights versus religious freedom" argument has been losing steam, partly because the public at large is starting to recognize it as a ruse, and partly because the cause of religious freedom opens the possibility that the proponents' religion will be placed on an equal footing with other religions, such as Islam, Satanism, or even Atheism. Hardline social conservatives like the American Family Association's Bryan Fischer have spoken out about this within religious circles, and more are starting to follow.

      Consider this candid rant by Scott Lively, the pastor who is widely credited with having inspired Uganda's Anti-Homosexuality Act and Russia's ban on "gay propaganda":

      "For about a year now I’ve been arguing against the use of “religious liberty” as a theme of Christian public advocacy. We retreated to that theme after SCOTUS Justice Hugo Black’s abandonment of the Bible’s authority in favor of a new “religious pluralism” standard in the 1940s-60s, starting with Everson v Board of Education (1947). That was the case that adopted Jefferson’s “separation of church and state” metaphor as a justification for declaring all religions to be equal with Christianity in America, and equally subservient to Secular Humanist authority...

      "But God always provides a way of escape. (We’re only trapped if we accept the limitation of staying on their chessboard.) That narrow and difficult but God-honoring way is to stop arguing for “religious liberty” and resume our proclamation of the superiority of Christ and His Word over all opposing faiths (along with tolerance for people of other faiths — that‘s how it worked before Black). It’s goal must be nothing less than an official reaffirmation of the Bible as our legal and cultural foundation, which would require overturning Everson and its juridical progeny..."

      It was never really about religious freedom.

      'Parental rights'

      The other conflict that has been almost completely missed is the one between youth and parents. The argument made for parental rights clauses is that parents should have (using the language of Bill 10) the right "to make informed decisions respecting the education of their children."

      No one was ever stopping parents from teaching their children what they believe and encouraging their kids to follow their lead. What parental rights are actually about is the right to deny their children any information to the contrary.

      And that only sounds like a good idea until you remember that the kids should have rights too. But by enshrining parental rights in legislation, the Province of Alberta is essentially prioritizing the right of parents to deny their kids knowledge (and emotional support, if their kid happens to be gay or trans*) over the right of children and youth to know. In some cases, it means that the attitudes of the narrowest-minded parents determine what everyone's kids are allowed to know.

      And when you say it for what it is, it doesn't really sound like all that wise of a compromise.

      Update:

      The Alberta Progressive Conservatives have introduced their amendment.  Now, if students are denied the right to form a GSA, they can appeal to the Minister of Education, which will provide one for them.  There's a catch, though:

      The GSA will be "hopefully within the school environment” (in the words of bill sponsor Sandra Jansen)... but then again, maybe it won't.

      Update 2:

      At 4:00 this afternoon, and following tremendous pressure, Premier Prentice has announced that Third Reading of the bill is being put on hold, "pending further consultation."  In follow-up questions, he still insisted it was necessary to balance kids' boards' and parents' rights using legislation, so this is probably not over.  Prentice said the timeframe on this consultation will be "certainly following the holiday season, for sure."

      Image: Flickr/jglsongs

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