Anti-Homophobia Legislation, School Policies and Codes of Conduct
One study says that the accusation of being ‘gay’ is the most prevalent and hurtful one aimed at other students. “[This] accusation was virtually impossible to refute without a dramatic change in social behavior and it could be deployed on a continuum of severity or seriousness, from throwaway jocularity to ultimate degradation of the victim, whether true or not.” 
The following section outlines some of the legislation and policies that protect against discrimination based on sexual orientation and gender identity. These include:
- the Canadian Teachers’ Federation;
- the Canadian Criminal Code, including hate crime legislation;
- provincial human rights legislation, including the Alberta Human Rights Act;
- the Canadian Charter of Rights and Freedoms;
- the Alberta Bill of Rights
- the Alberta School Act and the Education Act, if it is proclaimed in its current form;
- Boards of Education policies and regulations; and
- the Alberta Teachers’ Association.
Canadian Teachers’ Federation
The Canadian Teachers Federation (“CTF”) Policy on Anti-homophobia and Anti-heterosexism states:
1.4. Anti-homophobia and anti-heterosexism education is an integral goal of education permeating curriculum, materials, pedagogy, policies, practices and programs. (2004, 2010)
1.5. For anti-homophobia and anti-heterosexism education to become effective:
1.5.1. educators must accept their responsibility to educate themselves and to reflect upon their own attitudes and behaviours in modeling respect, understanding and affirmation of diversity; (2004, 2010)
1.5.2. educators have a responsibility for the elimination of homophobia and heterosexism in the working and learning environment; (2004, 2010)
1.5.3. curriculum must contain positive images and accurate information about history and culture which reflects the accomplishments and contributions of BGLTT people; (2004, 2010)
1.5.4. educators must take actions to make schools safe for BGLTT staff, students and parents, and those who are perceived to be so, by:
a) treating everyone with respect and acceptance;
b) using language that affirms all sexual orientation and not using disparaging remarks or language that implies one sexual orientation is superior to another;
c) challenging staff, students and parents who continue to display prejudice on the basis of sexual orientation;
d) developing an action plan to use in the event of an incident of discrimination or harassment and/or violence;
e) never making assumptions in the matter of sexual orientation;
f) making a commitment to confidentiality in the event of a disclosure of sexual orientation or gender identity;
g) not assuming the superiority of heterosexuality. (2004, 2010)
The best way to handle homophobia and heterosexism in schools is through preventative and proactive measures, many of which are mentioned in the CTF policy. This means addressing these issues within the curriculum and in training for teachers. The CTF policy states:
1.6. Ministries of Education must become visible advocates of anti-homophobia and anti-heterosexism education through the provision of:
1.6.1. curriculum documents, training and directives which incorporate anti-homophobia and anti-heterosexism perspectives; (2004, 2010)
1.6.2. sufficient resources to enable school systems to effect change. (2004, 2010)
While in the process of making your classroom and school a safe place for all students to be open to learning, you may find different cultures have different stereotypes of LGBT communities. Discrimination does not happen in a vacuum. Instances of harassment may be linked not just to sexual orientation, but to other forms of oppression.
Criminal Code of Canada
The Criminal Code has, over the years, had a series of homophobic sections that provided for punishments based on sexuality. Homosexuality, per se, was decriminalized in 1969 by Pierre Trudeau. However, even after 1969 there were certain sexual acts that were seen as a violation of the Criminal Code. These sections have been updated and amended over time but criminal charges were still being made until 1995.
Hate Crimes Legislation
Hate crimes, including hate propaganda, advocating genocide and inciting hatred based on sexual orientation are prohibited in the Criminal Code under section 318 and 319.
Sexual orientation was added to this section in 2004. To file a claim under the Criminal Code a person makes a report to the local police or RCMP. The Calgary, Edmonton and Lethbridge police services also have representatives who liaise between the LGBT communities and the police service. For those people who have a complaint based on sexual orientation or gender identity it is important to contact these representatives for support and direction. For more information about hate crimes see the ACLRC publication “LGBT Rights: Climbing the Judicial Steps to Equality” or the publication on Hate Crimes called “Hate Crimes and Hate Expression in Alberta and Canada.”
Human Rights Legislation and the Bill of Rights
Both provincial human rights statutes and the Charter of Rights and Freedoms (the “Charter”)
protect people from discrimination based on sexual orientation in certain areas. Cases have been heard under the Charter and under the Alberta Human Rights Act based on sexual orientation and on gender identity. Sexual orientation has been written into the Alberta Human Rights Act but gender identity is typically covered under the ground of “gender”. Recently the Bill of Rights was amended to include gender identity and gender expression.
The Charter protects individuals from ‘government action’ that is discriminatory based on one of the grounds listed in section 15, or any analogous (i.e., similar) ground. Section 15 grounds are: race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Sexual orientation was not included in the original list of section 15 grounds even though it was a major area concern when the Charter was being drafted. However, the Supreme Court of Canada has ruled that sexual orientation is an analogous ground, and therefore has Charter protection.
Schools have a responsibility to create an inclusive environment for LGBT students. Some Charter claims regarding schools have been made. For instance, Marc Hall requested an injunction so that he could take his same-sex partner to his high school senior prom. Justice McKinnon of the Ontario Superior Court of Justice stated:
School is a fundamental institution in the lives of young people. It often provides the context for their social lives both inside and outside of school hours. Recreational activities such as sports, clubs and dances, which are important in the development of a student’s development, are often experienced within the school setting. Exclusion of a student from a significant occasion of school life, like the school Prom, constitutes a restriction in access to a fundamental social institution.
The exclusion from the school dance was found to violate Hall’s Section 15 Charter rights. In making this decision Justice McKinnon stated:
In my view, the clear purpose of s. 15 is to value human dignity in a free society where difference is respected and equality is valued. The praiseworthy object of s. 15 of the Charter is to prevent discrimination and promote a society in which all are secure in the knowledge that they are recognized as human beings equally deserving of concern, respect and consideration.
To make a Charter challenge, based on discrimination, a government law, policy or other action must violate a person’s human rights. However, if a company, organization or other service is the source of the problem then a claim may lie under the Alberta Human Rights Act.
Provincial Human Rights
The Alberta Human Rights Act prohibits discrimination, including harassment, based on sexual orientation and gender (including “transgender”). This discrimination is prohibited in all areas including:
- publications and notices;
- goods, services, accommodations and facilities;
- employment practices; and
- membership in a trade union.
Jubran, who was teased with gay slurs but who was heterosexual, demonstrates that LGBT students are not the only ones affected by discrimination. Heterosexual students are also at risk of bullying. It is important for schools, administrators, teachers and councilors to address this kind of discrimination and decide ahead of time how to deal with particular situations. Ignoring harassment and discrimination means that all students suffer.
The Alberta Human Rights Act also covers discrimination against trans people under the area of gender. The Commission’s information sheet says “gender” includes “… being male, female or transgender.” 
Filing a complaint
To file a complaint under the Alberta Human Rights Act a person would go to the Alberta Human Rights Commission and fill out a complaint form. The complaint form and guide can also be accessed online, but the complaint must be submitted in print-copy at the Commission office. When filing a complaint the complainant should make sure that all areas are ticked off in which the alleged discrimination happened and that the correct ground or grounds are specified. For instance, if the discrimination is based on being transsexual, the correct ground would be ‘gender’. However if a transsexual person is not being given the time off necessary for surgeries then the complainant form should be marked off with ‘gender’ and ‘disability’ to indicate that there is a potential claim for accommodation in a medical issue. A Human Rights Officer at the Commission can help to determine which areas and grounds should be marked on the complaint form.
Alberta schools legislation
At the time of writing, the School Act was in force. Section 3 the Act states that “All education programs offered and instructional materials used in schools must reflect the diverse nature and heritage of society in Alberta.”
The Education Act received Royal Assent on December 10, 2012. It will come into force when it is proclaimed. The proclamation date has been delayed in order for the new NDP Government to assess and review the legislation before proclaiming it in force. Section 16 of the Education Act states similarly that “All courses or programs of study and instructional materials used in a school must reflect the diverse nature and heritage of society in Alberta, promote understanding and respect for others and honour and respect the common values and beliefs of Albertans.”
Many school boards and regional divisions in Alberta have anti-harassment policies that prohibit discrimination and harassment based on sexual orientation and gender identity. To make a complaint based on one of these policies see the policy itself for instructions on how to file a complaint. A person may also contact the appropriate school board or regional division to find out the best way to file a complaint based on a particular policy. Sometimes this information can also be found by doing a search on the Internet of the relevant policies and complaintprocedures.
The Edmonton Public Schools Board (“EPSB”) has a board policy and administrative regulation on Sexual Orientation and Gender Identity. The board policy states in part:
The Board is committed to establishing and maintaining a safe, inclusive, equitable, and welcoming learning and teaching environment for all members of the school community. This includes those students, staff, and families who identify or are perceived as lesbian, gay, bisexual, transgender, transsexual, two-spirit, queer or questioning their sexual orientation, gender identity, or gender expression. The Board expects all members of this diverse community to be welcomed, respected, accepted, and supported in every school.
The Calgary Board of Education (“CBE”) “…is committed to ensuring safe and equitable learning and work environments for everyone.” It notes that: “The safety, well-being, and experiences of LGBT youth (e.g., lesbian, gay, bisexual, transgender) is important.” The CBE has developed Administrative Regulation 4038 that addresses sexual harassment, harassment and discrimination by and against employees, volunteers and visitors.
In 2014 Kent Hehr made a motion to “…urge the Government to introduce legislation, like Manitoba’s or Ontario’s, requiring all school boards to develop policies to support students who want to lead and establish gay-straight alliance activities and organizations…”. The motion failed. However, later in 2014 Laurie Blakeman introduced Bill 202 that would allow students to start a gay-straight alliance in their school if they wished. Until this point, some schools were not allowing students to start such a group, or some students could start a group but were not allowed to call it a gay-straight alliance. Bill 202 passed first reading but was later replaced by Conservative government proposed legislation known as Bill 10. There is more information online about the timeline of events and reasons for Bill 10 replacing Bill 202. After much public and political debate, Bill 10 was amended to reflect the original Bill 202. The amended Bill 10 came into force on June 1, 2015, allowing students to set up gay-straight alliances in their schools and call them gay-straight or queer-straight alliances if they so choose.
For more information about gay-straight alliances and supporting LGBT youth in schools see the following Alberta resources:
- “Gay-straight alliances in Alberta schools: a guide for teachers” – Online: Institute for sexual minority studies and services www.ismss.ualberta.ca/gsinalberta
- “Ten steps to creating a GSA in your school” – Online: The Alberta teachers’ association www.teachers.ab.ca
- “GSAs and QSAs in Alberta schools: a guide for teachers” - Online: The Alberta teachers’ association www.teachers.ab.ca
- “Gay-straight or Queer-straight alliances in schools” – Online: Alberta Education: https://education.alberta.ca
- “Safe and Caring Schools for Lesbian and Gay Youth – A Teacher’s Guide”, “Safe and Caring Schools for Two Spirit Youth” and “Safe and Caring Schools for Transgender Students” – Online: Society for Safe and Caring Schools and Communities: http://safeandcaring.ca
In addition, the Alberta Teachers’ Association (“ATA”) is an excellent resource to assist teachers in addressing sexual orientation and gender identity educational issues. The ATA Declaration of Rights and Responsibilities for Teachers, the Code of Professional Conduct, and the Policy on Diversity, Equity and Human Rights all include sexual orientation and gender identity and have done so for many years. The ATA publishes a tri-fold policy brochure that outlines the policies of the ATA regarding sexual orientation and gender identity.
The Institute for Sexual Minority Studies and Services (“ISMSS”) does research that contributes to policy development for sexual and gender minorities. It sponsors Camp fYrefly, a summer leadership program for LGBT youth. ISMSS is located at the University of Alberta and is a key contributor to changing policy and providing education on issues that affect LGBT youth.
The above discussion demonstrates that there is an ethical and legal duty on teachers, staff, school services and school boards to work against discrimination and harassment based on sexual orientation and gender identity. In the past years teachers, school staff and principals and students have played a key role in fulfilling this duty.