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
Susan: I took 3 courses on PIPA. One was from the Alberta government. There are certain things pertaining to someone’s personal information that people are not allowed to have. When that is breached, there is a big fine given to the individual(s) who breach it. FOIP, I believe, is something that anyone can do, but it is very costly, and cumbersome to deal with. It takes time to get results, if any. There are limits as to what information can be accessed, if I am not mistaken, because PIPA prevails. The UCP are still involved with controversial issues. I still see them being very much like Doug Ford. I do not think either will last. The UCP is also using diversions to try and hide things they are doing wrong, which are many. It won’t work for very long.
Thanks for this Dwayne. I’ve updated my response to reflect the Privacy Commissioner Jill Clayton’s advisory. She said she issued it “to assist school boards and private schools in determining the legal considerations when drafting policies or making decisions about disclosing a student’s participation in…GSAs.” Clayton confirmed that PIPA does indeed apply to certain private schools. She reviewed the nuances of consent under FOIP and PIPA which vary depending on the student’s age. A student 18 or over can give consent (or not) to the disclosure of his participation in a GSA. A student younger than 18 could be considered a “mature minor” which Clayton defines as a minor who understands the implications of giving consent such that a school would need the student’s consent and not the parent’s consent on the student’s behalf. And this is where the problem arises. Most students are under 18; unless someone (who?) decides they’re mature minors their parents can give consent on their behalf to the release of this information. This leads to the untenable situation where a student who wants to join a GSA because he’s not ready to tell his parents he’s gay, is afraid to do so because the school will out him if his parents consent to the release of this information against his wishes.
So much for GSAs being a safe space.
I know this is a “side-take” from the legality issues (which are critically important) but as a mother and grandmother It just strikes me wrong the UCP government is so obsessed with gay kids. I’m sure these students don’t want or need to be caught up in all this uproar. They are just like every other kid, with the same needs and entitlements, and if they pop into a support group, or club at school so what? Do all the principals in every school have to get in a tizzy over every single kid who goes to try-out for the basketball team, or the school band? I loved Rick Mercer’s rant on the whole business, where he said, “Go pick on someone your own size.” I wish Jason Kenney and his twisted-up Education minister would just get over gay kids already, quit picking on them, and go worry about how to find enough teachers for the upcoming school term.
Elaine, excellent point. As I understand Kenney’s conservative movement, it’s all about keeping the government out of people’s personal business. (He said he was not going to legislate on social issues, right). But he and a good chunk of his base are also socially conservative so instead of keeping government out of people’s personal business, he’s enacting laws to allow schools to meddle in students’ personal business, potentially violating their Charter rights and definitely risking their physical and mental well being. So yes, we all have personal rights and freedoms, it’s just that some peoples’ rights and freedoms trump other peoples’ rights and freedoms.
There’s a word for that. It’s called hypocrisy.
Elaine this is a great point and the reason the UCP is doing all of this is because they do not accept Gay people period. They are treating them as people that somehow have some kind of a difficult disease to cure. They accept them because they know they will lose the election if they do not.
Yes they can do whatever in different other areas but God forbid a GSA – oh no the kid is diseased. The same old Circus.
Carlos, you nailed it. I don’t know what kind of person thinks it’s more Christian to risk a kid’s physical or mental well being that let him/her set up a GSA but there appear to be plenty of them out there.
Yes Susan you are right – I just get really annoyed with this attitude the Conservatives adopt of supporting something for election sake.
A totally modern Christian attitude practiced even by the Vatican.
Jason Kenney – just come out and say that you do not support gays period. Come out and say you do not believe in Climate Change, come out and say that you do not believe in public services – implement what you believe in.
This charade is abhorrent and it is destroying whatever is left of our political and social fabric.
No one really knows what you believe in – I personally think you have no character or beliefs – you just have one objective – get what you can while the rest of the society allows you to even if that means full deceit. You are lucky you do not have to be face to face with at least one person – myself.
It doesn’t seem to me to be very good form to at the same time try to diminish protections and rights, while claiming Alberta’s protections and rights remain strong. Its is like sucking and blowing at the same time. I suppose it shouldn’t be too surprising, the current crop of conservative politicians here in Alberta and elsewhere are particularly shameless in their lies and deceitful actions.
If the UCP really supported GSA’s and the students relying on them, the easiest and best thing to do would have been to do nothing at all and just leave the protections in place. Instead they are determined to chip away at the protections already in place when they came into power and then try to pretend they are not doing exactly that.
Dave, for a government that ran on the promise to shrink the size of government and cut red tape, the UCP sure knows how to make things more complicated and less efficient. Under the NDP’s legislation the schools were prevented from disclosing whether a student belonged to a GSA, period. Under the UCP legislation schools have to be confident they’re complying with the requirements of FOIP or PIPA before they can disclose. I don’t think teachers are trained in privacy law or want to be caught in the middle between parents demanding to know and students asking them not to disclose. It’s a mine field. Sadly, it’s the kids who are outed who’ll suffer the most.
this is the respect this jerk has for the legislature and democracy
These people are worse than third world – so much for all the education they get in North American Universities
The thing about this is, is an LGBTQ2S+ youth who has been booted from the family home and is now living on the streets, going to file a complaint with the Office of the Information & Privacy Commissioner? Of course not; they’ll be focused on survival, or on a means to suicide if that’s the route they take.
These so-called protections are meaningless.
I think it would be great if straight students in many schools including catholic and private ones made the request for a GSA and flooded the system… thereby normalizing the “club” and and diluting the impact of outing by “concerned” teachers thereby offering protection to gay kids who could also join… what do you think Susan? I’d be interested in your opinion…
This is an interesting idea Deb, similar to what many Americans proposed when Trump announced he was going to create a Muslim registry. The rationale was to flood the registry with so many non-Muslims that it would become virtually useless. The rationale here would be different, it would be a sincere show of support for gay kids from straight kids and a push back against government legislation that threatens the safety and well being of gay kids. It might work not because it normalizes GSAs but because it demonstrates to “concerned” teachers that gay kids are overwhelmingly supported by straight kids (and their parents), the message being, if you mess with one kid who happens to be gay then you’re messing with all of us kids (and our parents).