In early October of 2008, substitute teacher Jan Buterman was informed that he was being dropped from the teacher list and should not report to a scheduled class that day. Jan had spoken with the Deputy Superintendent at the Greater St. Albert Catholic Regional Division No. 29 the previous June about his transition from female to male and that he would be returning to work after the summer break as Mr. Buterman — a minor change, since he had a mostly masculine gender presentation as it was. But in the start of October, the Archbishop of the Edmonton Diocese of the Catholic Church objected, and directed the school board to end his employment. The Archbishop felt that Jan “would create confusion and complexity with students and parents as a model and witness to Catholic faith values.” This from the organization that felt that the best way to deal with pedophile priests was to give them a free ride to a faraway diocese and a get out of jail free card… and have other pedophile priests cut a deal with the victims.
In Alberta, Canada, the Catholic School Board is publicly funded, and therefore subject to the same standards as any government entity. Nevertheless, the Archbishop and School Division felt so strongly about the need to fire him for transition — even though there is no quantitative reason to believe that students are in any way negatively affected by the presence of trans teachers — that they put it in writing.
Alberta has encountered this type of issue before. In 1991, chemistry lab instructor Delwin Vriend was fired by The King’s College (a private college — now a University College — operated by the Christian Reformed Church) for being gay. He attempted to file a complaint with the Alberta Human Rights Commission, which refused to hear the case on the grounds that sexual orientation was not a protected class. He then fought the case in an Alberta court and won in 1994, but the Province stepped in and appealed, and the ruling was overturned in 1996. At that point, Vriend took on the Province and appealed to the Supreme Court of Canada, which finally ruled in 1998 that Provinces could not exclude gay, lesbian and bisexual people from human rights legislation. This landmark ruling won equal rights for GLB people across Canada.
Gender identity, however, is only expressly protected in Canada’s Northwest Territories. Since Vriend v. Alberta, Canadian Human Rights Commissions have considered gender identity and expression as “read in” to the Human Rights Act alternately under the terms “sex” or “gender.” As in most situations where there is implicit inclusion, any time a case goes before the Commission, it needs to be repeatedly demonstrated how transsexuality qualifies as a gender class, and even then, other factors can sometimes be given more weight. Earlier this year, a U.S. court gave more weight to a company dress code than to an employee’s gender identity in a similar circumstance — Canada’s track record has been better so far, but there are no guarantees.
In June of this year, Member of the Legislative Assembly (MLA) Laurie Blakeman tabled an amendment to Alberta’s Human Rights Act that would have added gender identity to the list of protected classes — MLA Ken Allred led the charge against this, claiming that the amendment was duplicitous and unnecessary, and the ruling Conservatives overwhelmingly voted against it. This led to some speculation that the Alberta Government might try to use a similar tack to Vriend’s case by pushing the Alberta HRC to rule that gender identity is not a protected class, in order to dismiss several complaints being filed when Genital Reassignment Surgery (GRS) was delisted from Health Care Coverage. However, Albertans remember the embarrassing attitudes of the Ralph Klein government when this was attempted before, and the stinging cost of losing that battle, so there is little political will to do so. So far, the AHRC is viewing the GRS-related complaints seriously and the first few have been forwarded to the Province for a response.
Federally, Member of Parliament (MP) Bill Siksay will be bringing a Private Member’s Bill up for debate in the House of Commons this Fall (assuming that the minority government doesn’t fold before then) calling for explicit inclusion of gender identity in hate crimes and non-discrimination legislation. Nudge-nudge to Canadians to remember to enlighten your MP.
Canadian Human Rights Commissions have been under mounting pressure for the last few years from right-wing commentators and interest groups / churches, saying that hate speech provisions impose upon their freedom of speech. Some of the most vocal critics of human rights commissions have been Ezra Levant, Mark Steyn, The National Post and Jonathan Kay, MacLeans Magazine, Rev. Stephen Boissin, the Roman Catholic Church, Marc Lemire, Mark and Connie Fournier and Paul Fromm (Lemire, Fromm and the Fourniers also have ties to white supremacists, though with the exception of Fromm, they’ve been largely able to whitewash that). No surprise: virtually all of them have been on the losing end of hate speech cases. But they’ve also been able to whip up the Conservative base into a frenzy of calls to abolish Human Rights Commissions.
The Nixon v. Rape Relief case surrounding a transsexual woman’s right to train as a rape counsellor, the reinstatement of GRS in Ontario, the pending GRS-related cases in Alberta, a case against a women-only gym owner, a case in which an Ontario surgeon refused to do cosmetic revisions to 2 vaginaplasties not caring if there were no other local options, and a couple other cases revolving around transsexuals are inevitably the cases always put forward and twisted out of context in order to make the statement that Human Rights Commissions are out of touch with reality. Most of the arguments are against hate speech, but non-speech cases involving transsexuals appear to be the support “evidence” of choice. Alberta’s HRC was the location of one of the best known hate speech cases in Canada, Lund v. Boissoin, over a conservative minister’s letter to the Red Deer Advocate a few years ago — which has recently been heard for appeal.
I expect that in the same way Rev. Boissoin’s case has been flogged by conservative media to say that legislation designed to prevent incitement against GLB people stifles free speech, this case will be used to raise fears about ENDA and similar legislation. If and when it does, it needs to be remembered that the Greater St. Albert Catholic Regional Division is a publicly funded institution. Of course, Catholic School Boards haven’t always abided by Provincial standards, such as some boards’ decisions to refuse to offer HPV vaccinations for students — but it does mean that regulatory standards are supposed to apply.
In the meantime, Jan Buterman has been struggling to stay afloat and is hoping for a quick resolution.
Dented Blue Mercedes 
While being somewhat familiar with Jan’s situation, the news coverage I watched last night shined some new light on the situation that if it was in fact accurate, seriously compromises Jan’s hopes for a different resolution.
First and foremost, let me make it clear that what they did was undeniably wrong. The problem is that under employment law as I understand it, Jan has job protection, NOT position protection. What this means is that as an employer, the Catholic School Board is required to accommodate disabilities of employees to the point of undue hardship. What this means is that regardless of what disability Jan (or any other employee) was suffering from, they could not be terminated. However, this is no way shape or form requires that the Catholic School Board is required to keep Jan in the same position.
From what I heard on the news coverage, Jan was offered another position that did not involve teaching. As long as the offered position is comparable in compensation, then as a employer they have done what they are required to do. As such I don’t think the Catholic School Board is violating human rights, just common sense and decency.
I wish Jan the best of luck, but from what I understand of the situation, I don’t think the Catholic School Board can be forced to re-instate Jan to a teaching position.
Okay I already know that by the end of this I might offend some people, but let me make this clear what I am about to write is my opinion and in no way at all what is right or worng in anyother persons views. But since this controversial current event has been posted all over the internet, facebook, and on the lips of so many of my peers I feel it necessary to add my two cents in. Religious titles to me (for example christianity, cathlocism, ect ect) are for people who feel that their views need to be conformed into one single ideology of what that specific group feels or believes. The two examples above are clearly against gay or other variances in sexual orientation. To call yourself a Catholic and to take part within the community, I would understand that you would have to follow or believe in there theories, ideas and ways of life. If you cannot conform or choose not to conform to those roles, why on earth would you want to take part in something that doesnt include your choices, beliefs or lifestyle in them.
I am a lesbian. You will not see me hold up a rainbow flag. I am religious, but you will never see me carry a bible or generalize my beliefs in with any organization other than God himself. I agree with the Church and School Boards decision based on the fact that private religious based schools are for people who want to conform. Parents send their children to these schools because they actively follow and retain the veiws and values of that schools religion. Catholicism is against gays. Plain and simple. Those are their views however wrong and absurd you may feel them to be. If that teacher had any sense at all, stop mixing human rights with religion. Instead believe what is true to you, build your own temple inside your heart and keep God close to you. Since when did believing in God and having faith be restricted to buildings, chapels, and others ideologies. The strength we feel, the warmth the faith its in yourself to believe and not in anyone elses. To be a teacher in this day and age is a very important career that will shape, mould, and strengthen the youth of today. Trust me I am not at all opposed to people transitioning and making themselves whole but breaking a sacred sanctity that other people believe in so deeply seems a bit selfish. They arent saying dont teach children, they are saying that the Church’s ideas no longer match his so move on to a district that accepts and embraces your change.
‘They arent saying dont teach children, they are saying that the Church’s ideas no longer match his so move on to a district that accepts and embraces your change.’
As a publicly funded institution, the Catholic School Board does not have the ability to discriminate….even based on its own religious views. Since it is receiving government money to run the institution and pay its staff, the Catholic School system must also adhere to the the government policy re: its staffing.
Furthermore, religious freedoms never supersede human rights. If a religion subscribes to corporal punishment for the absolution of sins should young people be subject to school beatings? Do you think it is appropriate for religious schools to teach their values at the expense of scientific fact? Should religiously based schools be exempt from provincial curricula which do not align with their values such as evolution?
Here is just on recent example of how excusing human rights abuses on the basis of religious values is dangerous.
http://www.cbc.ca/canada/ottawa/story/2007/09/07/ot-grenville-070907.html
http://en.wikipedia.org/wiki/Grenville_Christian_College
The educators at this school claim religion as the basis for years of physical, emotional and sexual abuse of children. They attempted to ‘de-gay’ youth through various forms of shame and torture. Religious beliefs are not an excuse to violate the human rights of others. Ever.
I think we’ll find that shuffling people to the back of the room when they are in fact perfectly capable of performing their real job and have not requested such “accommodation” will not be found to provide any sort of insulation or defense to the school board. Jordenne’s argument, with respect, is essentially one that suggests an employer can invoke its duty to accmmodate as a defense to removing someone from their job, in the absence of a performance issue, in order to “accommodate” their own bigotry, rather than the employee’s disability. The case will come back to religious issues v. human rights protections, and we know how the Vriend matter turned out.
I’m surprised that the offer was mentioned, as I don’t know if it was on the record? Consequently, I don’t know if I can comment on whether it was also discriminatory and / or how.
I do know that Jan would be open to a reasonable offer which didn’t require accepting portrayal as a menace to students and / or demand accepting restrictions that no other teacher would be required to submit to.
@Shannon — People are shuffled to the backroom for many various reasons all the time that have nothing to do with their performance. Think of a front desk person in a high end hotel who goes out one weekend and gets multiple facial piercings and covers their face in tattoos. The hotel will shuffle that person to another position that does not have the same customer contact. A waitress who in an accident gets most of her face badly burned will be shuffled to a position that involves less customer contact.
Is it right? No. Absolutely not.
Is it legal? Unfortunately, yes.
Sorry but this is much the same as the Women’s only pharmacy in Vancouver excluding trans women. Is it right? Absolutely not. Is it legal? Unfortunately yes. As such the way to fight against this sort of thing is not legal challenges, it is education. I know it’s not a popular opinion, but education changes things far faster than legal battles. How long ago was Alberta ordered to change the Human Rights Act as a result of Vriend? What did the government do in order to “water down” the effect of those changes?
Fighting against something that is currently legal but morally reprehensible is an option, just not a massively effective option.
I can ground my children 100 times for calling a sibling a name and it won’t stop them from calling people names, just may influence how loudly they do so, but if I effectively educate them why they need to stop calling people names, then I only need to do it once and it sticks, even when I am not within earshot.
Just my two cents, and now I am back to being silent and kicking myself for not remaining so.
I’m sorry Jordenne, but i don’t believe it’s lawful, and it’s certainly not a case of an employer exercising their duty to accommodate a disability. I think you are misunderstanding how the law works in that regard. You can’t put people of colour in the back of the shop because you don’t want customers to see them, and you can’t do that to trans people either. the School Board will have to argue that its religious principles allow it to do so (essentially, that being non-trans is a Bona Fide Occupational Requirement), or that Jan was not performing the job adequately given his “disability”. and I think they will lose on the first theory, and on the second given their admission that he gave good service (I have no other details about performance/capability issues.) and I think the school board will lose hard. if not at the AHRT then in the courts above on judicial review.
I believe that education is critical, but that it’s not the only measure that needs to be pursued. I’m not aware of any other equality seeking community, be it women, POC, GLB people, people with disabilities or you name it, that has achieved measures of equality without litigating against unlawful discrimination in appropriate cases. I think the main reason we are so far behind still legally..and socially..is because we haven’t been able to litigate as aggressively as other groups have. Legal change is the horse that drags the social cart along behind it, kicking and screaming. Education helps people stop all the kicking and screaming.
Anyway, on the legal piece I’m pretty confident in my take. On the strategic piece, I acknowledge that views can differ as to what is the best route to follow. I would like to follow the path of massive education efforts, while litigating strategically.
EgaleCanada reply: http://trans.egale.ca/?p=435
Oh, the irony of a parochial institution of education not even reading and understanding it’s own primary text or history.
There are a minimum of three places in the Bible in both the OT and NT that clearly state that if someone is transsexual (ancient translation: self made eunuch) they are to be afforded a special place in heaven by the Father. Even Jesus himself stated it very clearly. And a maximum of zero which say that being a transsexual in any way transgresses the teachings or values of the Church or Jesus Christ or is otherwise a sin, amoral or undesirable. Oh, and a number of said self made eunuchs were known to have adopted womens’ dress and mannerisms so there is little doubt about the intentions.