It started when the Kenney government introduced Bill 8, the Education Amendment Act which they said would provide “the strongest statutory protections” for gay-straight alliances (GSAs) in the country.
It ended with a news release issued by Education Minister LaGrange late Friday afternoon on “the protections for students under the Education Act.”
The News Release
Here’s the release and Ms Soapbox’s comment in italics.
The release is entitled “Protecting LGBTQ2S+ students”. (Good start considering Ms LaGrange couldn’t bring herself to say the word “gay” a week ago).
“With the passionate debate taking place in the legislature about Bill 8, I feel it’s important to clarify a few important misconceptions about student protections under the Education Act. (“Passionate” is an understatement. Government House Leader Jason Nixon threw himself into the breach so many times to defend Bill 8, Ms LeGrange and Solicitor General, Doug Schweitzer, one suspects he didn’t trust them to speak for themselves).
“To be absolutely clear: our government opposes mandatory parental notification of student involvement in inclusion groups, and Alberta will have among the most comprehensive statutory protections for gay-straight alliances (GSAs) in Canada. (True, Bill 8 doesn’t make parental notification “mandatory”, but it doesn’t go far enough to prevent them from being outed, see below. The comment that Alberta “will have among the most comprehensive statutory protections” is Ms LaGrange backing away from Mr Nixon’s assertion (20 times) that Bill 8 provides the most comprehensive statutory protection for LGBTQ students in the country).
“Once requested by students, creating a GSA is not optional. In Alberta, like Manitoba and Ontario, the Education Act specifically guarantees in legislation that students are entitled to create inclusion groups, including GSAs and QSAs. Compared to legislation in Ontario and Manitoba, the Education Act provides greater direction regarding the appointment of a staff liaison for the student organization.
“With amendments introduced through Bill 8, we are also clarifying that board obligations regarding welcoming, caring, respectful and safe learning environments, policies and publicly available student codes of conduct apply to all publicly funded schools – including accredited private schools. (Nothing says “welcoming and respectful” like Bill 8 which will allow a school to drag its feet until the kids give up or if they form a club, prevent them from referring to themselves as “gay” or “queer”).
Reference has also been made to Nova Scotia and British Columbia, which have no overarching provincial statutes protecting GSAs. Unlike the Education Act, British Columbia’s ministry directive and Nova Scotia’s provincial policy are not enshrined in provincial legislation. (Legislation passed by Ontario, ministerial orders passed by BC and policies enacted by Nova Scotia and New Brunswick provide stronger protections than Bill 8, and as any lawyer knows all of these instruments are enforceable).
“The privacy of students is also protected under Alberta’s strict privacy laws. Schools cannot disclose a student’s membership in any inclusion group, as there are student privacy considerations that trump other legislation, including the Education Act and the previous government’s Bill 24.
“All school authorities are required to follow privacy legislation: publicly funded schools must follow the Freedom of Information and Protection of Privacy Act, and private schools must adhere to the Personal Information Protection Act. School authorities may only disclose personal information if authorized under these laws. (Quick, grab the Solicitor General before he slips away and ask him to read the Freedom of Information and Protection of Privacy Act (FOIP) and the Personal Information Protection Act (PIPA) because the claim they will protect a student’s privacy is overstated.
FOIP applies to a “local public body”. The definition of “local public body” includes “an educational body”, so yes, FOIP applies to schools. However, Section 17(2)(j)(iii) states it is not an “unreasonable invasion” of privacy to disclose someone’s attendance at or participation in ‘a public event or activity related to a public body, including a graduation ceremony, sporting event, cultural program or club, or field trip’ unless pursuant to section 17(3) the person requests the information not be disclosed. So, unless a student gives their principal (written?) notice they don’t want their membership in a GSA disclosed (and assuming the principal doesn’t misplace or forget he’s received such notice), the student’s membership in a GSA is not private.
PIPA applies to private schools that are incorporated under the Societies Act or the Companies Act. A school may not disclose whether a student belongs to a GSA without the student’s consent except where such disclosure is required by law or relates to an emergency.*
Now here’s the tricky part, under FOIP and PIPA schools can’t force students to consent to disclose whether they belong to a GSA, however if the student is under 18, the student’s right to consent may be exercised by his/her guardian under certain circumstances, eg under FOIP the school must believe the release of this information is not an “unreasonable invasion” of privacy.
So where does that leave us?
Principals and schools boards better put their lawyers on speed dial to ensure they’re complying with the privacy laws that “trump” Bill 8, and students who want to join a GSA must understand the risk of being outed by schools that do not understand their obligations of confidentiality as set out in the privacy laws.
“We also recognize every child is unique and every circumstance is different. Legislation needs to balance protecting children and their privacy with the rights of parents, so children are getting the supports they need. Though it would be rare, disclosure of GSA/QSA membership would only be justified on the basis that the disclosure would avert or minimize a risk of harm. (True, FOIP section 17(2)(b) allows schools to disclose a student’s information if there are “compelling circumstances” affecting the student’s health or safety and with “written notice” to the student, but such disclosure must be about the student’s health/safety, not their membership in a GSA).
“Unlike the previous government, we trust professional educators to navigate these difficult situations to do what is in the best interest of kids. No responsible teacher or principal would ever reveal a child’s sexual orientation. This approach provides a clear balance between student privacy and parental rights – a balance and clarity that was not found in Bill 24. (The opposite is true. The balance under Bill 8 is tipped in favour of parents and Minister LaGrange’s commentary on Bill 8 is so confusing the Privacy Commissioner Jill Clayton issued an advisory to ensure schools understood their obligations to student privacy).
“Our government believes that the safety of students in school is paramount. I am looking forward to engaging students, parents, teachers and administrators as we work together to build a modern education system which supports all students.” (Minster LaGrange consulted with the Parents for Choice, there’s no indication she consulted with the experts who insist Bill 8 is harmful, or the hundreds of people who rallied in support of GSAs or the 60 kids who’ve written their MLAs begging the UCP government not to proceed with Bill 8).
As shocking as it may sound, when it comes to GSAs Alberta would be better off with Doug Ford.
*Updated to reflect the comments made by Privacy Commissioner Jill Clayton.
Sources: Alberta Hansard June 11 to 13, 2019