Should transgendered persons be permitted to teach in our schools?

Let me first explain what a transgendered person is. The term is a general one applied to a variety of individuals, behaviors, and groups involving tendencies to diverge from the normative gender roles they were born with. It generally involves men who choose to dress up as women and spend their lives dressed up as women. However, many women prefer to live as a man and dress up accordingly. This does not necessarily mean that because women wear men’s clothes, that they are transgendered. This term certainly does not apply to men who dress up as performers.

Transgendered people were born either a male or female and that is determined by their genitals, but they feel that this is a false or incomplete description of themselves.

Legal procedures exist in some jurisdictions allowing an individual to change their legal gender, or their name, to reflect their gender identity. Requirements for these procedures vary from an explicit formal diagnosis of transsexualism, to a diagnosis of gender identity disorder, to a letter from a physician attesting to the individual's gender transition, or the fact that one has established a different gender role

In 2009, Jan Buterman, 39, a transgendered substitute teacher in Alberta was fired by the Greater St. Albert Catholic School Board for changing his role from that of a woman to that of a man. In October 8th of that year, he filed a human rights complaint demanding to be reinstated.

The school admitted that he was a good teacher but his gender change from woman to man was not aligned with the teachings of the Catholic church or its values. The school stated that his role would confuse students and their parents. He taught social studies, German and French to students in Grades 7 to 12 in the well-to-do bedroom community of St. Albert north of Edmonton.

His position in this matter is that he didn’t believe that someone's medical condition is really fodder for his or her employer. He felt that it should not be the business of a person’s employer.

In the letter written to Butterman by Steve Bayus, the deputy superintendent of schools, it said in part; "The reason for removing you from the substitute teacher list follows a conversation we shared in which you indicated that you had been diagnosed with a gender identity medical condition and that you were undergoing physical gender changes from the female gender to the male gender. In discussions with the Archbishop of the Edmonton Diocese, the teaching of the Catholic church is that persons cannot change their gender. One's gender is considered what God created it to be."

The board's treatment of Buterman has confounded the Alberta Teachers' Association, which is backing his complaint, as well as lawyers and human rights groups.

Helen Kennedy, executive director of Egale Canada, called the board's decision sad, but not surprising. She noted that Catholic church doctrine staunchly opposes gender reassignment surgery. Kennedy said Buterman's "crime" was not related to his performance in the classroom, but to the fact that ‘he’ began life as a ‘she.’ She added, "The school board is arguing that transgendered people can only be acceptable to the church as long as they don't become their gender.” (change their gender)

Dennis Theobald, a spokesman for the teachers association, said the union doesn't believe a person should be discriminated against on the basis of gender or sexual orientation. He said Buterman's complaint contends that he was discriminated against on the basis of his gender identity.

Marie Riddle, the Alberta Human Right Commission’s director, said that Alberta's human rights law does cover transgender and disability issues. But she said the law also can allow discrimination in some cases involving religious beliefs, depending on the circumstances. She added, "There might be discrimination, but the discrimination might be reasonable and justifiable."

What the Commission has to do is look at prior cases that have been decided in courts of law.

Buterman filed his complaint on the day prior to when Alberta finally included sexual orientation in its Human Rights Act. The Supreme Court of Canada had ordered the province to do that in April 1998 in a ruling it made with respect to Delwin Vriend, a teacher who was fired from a Christian college in Edmonton in 1991 because he was gay. The high court ruled at the time that sexual orientation would be protected from discrimination in the province until the law was rewritten, but Alberta didn't make the change until October 9th, 2009.

It would appear that transgendered people are clearly covered by the law in Alberta. I am mystified that a government-funded school board that is open to students of all faiths would make such a decision. On the surface, there can be no question that excluding an individual because they are transgendered violates the Human Rights Act in Alberta.

According to the government of Alberta, it protects human rights and promotes fairness and access to the opportunities to participate fully in the social, cultural and economic life of the province. Does this also apply to transgendered school teachers?

In the Preamble of Alberta’s Human Rights Act, it says in part;

WHEREAS it is recognized in Alberta as a fundamental principle and as a matter of public policy that all persons are equal in: dignity, rights and responsibilities without regard to race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation;

The Act says in 7(1)

No employer shall (a) refuse to employ or refuse to continue to employ any person, or (b) discriminate against any person with regard to employment or any term or condition of employment, because of the race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or of any other person.

Obviously, transgendered persons come under the protection of the Preamble and Section 7(1) of the Act with respect to ‘sexual orientation’. But should acceptations be made?

Many years ago, a man in Toronto applied for a job in a factory that primarily hired women. He would have been hired as the janitor but for the fact that he had just been released from prison after serving two years for raping a woman. He filed a complaint and as a result, the Commission concluded that the company was wrong because the man had already been punished and the company had no reason to believe that the man would rape a woman in the factory.

Despite that ruling, this doesn’t mean that a man who sexually attacks a child can be permitted to work with children after he has been released from prison. In fact, in Canada, for anyone applying for a job in which the job description requires the person to work with children, that person must bring to the prospective employer, a document from the local police stating whether or not he she is crime free. Further, sexual offenders are listed on a national sex offender list and organizations who work with children have access to that list.

I am straying a bit so I will return to the main issue as to whether or not a Catholic school or any school for that matter that is funded by the public, can discriminate against people they feel shouldn’t be teaching in their schools.

What this all comes down to is a question of law that is concerned with human rights and not essentially educational matters. At the heart of this issue is how to reconcile the religious freedoms of Catholic schools with the equality concerns of transgendered teachers, concerns that may be shared by society generally.

Any potential conflict between religious freedoms and equality rights should be resolved through the proper delineation of the rights and values involved. Neither freedom of religion nor the guarantee against discrimination based on sexual orientation is absolute. The proper place to draw the line is generally between belief and conduct.

As an example, I don’t see any reason why an atheist can’t teach mathematics in a Catholic school providing he or she isn’t trying to turn students away from Christianity. However, if teaching religion is part of the duties of that teacher, then the school is not being discriminatory by firing the teacher or refusing to hire the teacher if the school becomes aware of the teacher’s non-religious leanings.

Let me say, at the outset, that if Mr. Buterman had been fired from a public school because he is a transgendered person, the public school board initiating this action would have breached the provisions of the Act. The question here is whether the Greater St. Albert Catholic School Board is in a different position because it operates as a religious school board. As I see it, this section applies to all categories of employers, not just parochial schools.

The sex of a person should not constitute reasonable cause for dismissal unless it relates to the maintenance of public decency. But what should be done with a teacher who is hired as a a man or a woman and then later changes his or her sex while still teaching at the same school? That could definitely cause some concerns to the school authorities because it would confuse the students. On the other hand, if Mr. Buterman joined the staff dressing and behaving as a man, then why should that be of any concern to anyone in that school that he was born as a woman? In fact, from my understanding of the case, the school authorities only knew of him being tansgendered when he told them. From that, I can only presume that the students thought of him as a man.

One could argue that where a charitable, philanthropic, educational, fraternal, religious or social organization or corporation that is not operated for profit has as a primary purpose, the promotion of the interests and welfare of an identifiable group or class of persons characterized by a common race, religion, age, sex, marital status, political belief, colour, ancestry or place of origin, that organization or group shall not be considered as contravening a human rights legislation because it is granting a preference to members of the identifiable group or class of persons.

As an example; a club that only caters to men who smoke pipes, would not be discriminatory by refusing membership to women just as YWCAs would not be discriminatory by refusing membership to men.

Parochial schools too are entities that do not operate for profit however, they are subsidized by tax payers and that is what differentiates them from private associations.

In the last analysis, the Human Rights Commission must be satisfied that a transgendered person who teaches at a school, be it public or parochial has acted in a manner that that person has by his or her actions not placed himself or herself outside the protected group because he or she is no longer in a position to promote the ‘interests and welfare of the students’.

In my respectful opinion, an enormous loophole would be driven through the anti-discrimination provisions of Human Rights Acts in Canada and the Canadian Charter of Rights if employers were free to treat as bona fide, employment qualifications pertaining to restrictions within the various categories such as religion and sexual status which are prevented by the aforesaid legislation.

The Board’s argument is that a Catholic school can demand that Catholic teachers practice what the Church preaches, such as, that one should remain as they were born and not change their sex.

I disagree with this argument. I don’t think it is the Board’s business as to how their teachers chose to live providing that their style of living doesn’t conflict with their abilities to function as teachers. The American armed forces realized this important fact when they brought in the law with respect to homosexuals being in the armed forces. Their policy is and has been for many years, “Don’t ask—don’t tell.”

Ironically, if a person by religious conviction wore certain garments that were not compatible with his workplace, he would still have to be employed so long as it didn’t conflict with safety issues or offend his fellow employees. Does it not follow that when a teacher chooses to wear men’s clothing even thought that teacher was born as a woman, it would be discriminatory to fire that teacher?

An individual cannot change his ‘race … colour, age … ancestry, or place of origin’. Religion, marital status, sexual preferences and political belief are attributes of an individual over which he has complete control. It should not be the prerogative of a school board to infringe on those rights where a teacher has complete control. To do so, is no different that what happened in Europe during the years 1933 through 1945.

Being restrictive as to who the Catholic School Board can hire, has its downside. Would the students in the school where Mr.Buteman (who was regarded as an excellent teacher) taught, benefit if he was replaced by another teacher is less qualified? Obviously not. This is not really what concerned the school board. They want it both ways. Alas, life isn’t always that simple. The school board could have ended up with a teacher less qualified than Mr. Buterman to replace him and at the same time, have to pay the man it fired, a substantial award ordered by the Commission.

I will keep my eye on this case and inform my readers of the Commission’s decision when it it is arrived at. Meanwhile, don’t hold your breath. Waiting for a decision from a Human Rights Commission is not unlike waiting for a train in a severe snow storm. You know it’s coming, you just don’t know how long you will have to wait.