Human rights issues are particularly interesting when they involve “competing human rights.” We see this when both sides to an issue claim that their human rights are being engaged. Competing rights came up in a recent case involving schools that had gone on field trips to the Canadian Museum for Human Rights, but asked that material related to LGBTQI+ rights, women’s rights, and abortion be excluded from their tours.
Apparently, for a number of years, the museum permitted certain guests to request that their tours not include any LGBTQI+ material, going so far as to ask staff to physically block a display about LGBTQI+ issues from a passing group. While the museum thankfully stopped this practice in the middle of 2017, it popped up in the news recently, because two private schools went to Federal Court seeking to block the museum from disclosing that they were among the schools that had made such requests.
Although the Court granted an interim confidentiality order while the matter was pending, it recently ordered that the schools’ names be included in the material disclosed in response to a freedom of information request received by the museum.
It appears that the court case did not consider human rights. Instead, it was argued and decided based on issues such as the privacy rights of the students, the potential damage to the reputation of the schools, and the possible impact on the schools’ commercial interests.
However, while the case did not turn on human rights issues, the circumstances that led to it raise a number of interesting thoughts about human rights, particularly where different parties each have rights (or sometimes only interests) that they want to protect.
When rights collide
In many cases, both parties to a dispute will claim that they have human rights that are being infringed or imposed upon by the other side. For example, consider an apartment with two tenants who live next to each other, where one of the tenants uses prescribed medical cannabis to treat a chronic medical condition, and the other has severe asthma that can be triggered by exposure to smoke.
In such a case, the parties (and the housing provider) will need to find a resolution that addresses the needs of both parties, if that is possible. The reason for this is because both the medical condition requiring the use of medical cannabis and the asthma are disabilities protected by most human rights legislation.
However, if we change our example slightly, so that the first tenant does not need to use cannabis to treat a medical condition, but simply wishes to use cannabis, the analysis changes. While the first tenant no longer needs to use cannabis due to a disability, they might still use rights-based language to defend their position. That is, they might argue that since it is no longer illegal to use cannabis, they have a “right” to use it in their home.
But that is not the sort of right protected by human rights legislation, and will not prevail over another tenant’s right to have their disability accommodated. In that sort of case, there may be restrictions placed on the first tenant’s ability to smoke cannabis, even in their own home, because of its impact on the human rights of others.
Rights are not absolute
Applying this sort of thinking to the schools that asked the museum to exclude certain material from their tours raises a number of issues relating to human rights and how the law protects them.
For example, were the schools exercising any sort of right protected by human rights legislation? Would your answer to that question change if the schools in question were affiliated with a religious group that believed that it is a sin to identify as anything other than a heterosexual, CIS-gendered person?
At the very least, that would provide some basis for arguing that the position of the schools was based on a ground protected by most human rights legislation — religion or creed. And as much as one might feel that such a belief is bigoted, appalling, and awful, human rights legislation does not protect only those rights or beliefs that align with our own world views.
So, if we accept that freedom of religion includes the freedom to hold views that are distasteful and harmful, what does that mean? How far does that go?
Thankfully, there are limits.
As I have commented in previous articles, rights are not absolute. For example, if there was a religious group that believed in human sacrifice, those beliefs would be subject to laws against murder, which would presumably be determined to be a reasonable limit on religious freedom in those circumstances.
In addition, a religious belief teaching that homosexuality was wrong would not mean that proponents of that religion had a right never to have to encounter or deal with homosexuality. In other words, it might be their belief and they might be free to hold it (no matter how wrong-headed the belief might be), but that does not mean they can require the world to shape itself to comply with their belief.
No simple answers
With that in mind, when private schools (or other groups) that have views that are not supportive of LGBTQI+ rights or women’s rights go to a museum like the Canadian Museum for Human Rights, does the museum have any obligation to exclude material related to LGBTQI+ rights, women’s rights, and abortion from their tours? Probably not. Instead the answer is that those groups do not have to go to the museum in the first place. If that is the case, why did the museum agree to the request to censor its content in the first place?
There are no simple answers to many of these questions. But these sorts of questions are good to keep in mind when thinking about what it really means when someone claims to have a right to do something or not to have to do something else.
It is unfortunate that a museum whose purpose is “to explore the subject of human rights … in order to enhance the public’s understanding of human rights, to promote respect for others and to encourage reflection and dialogue” appears not to have given appropriate consideration to such questions in agreeing to provide censored tours.
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