19 Sep 2017 Same-sex parents, Christian schools, and the Ontario Human Rights Tribunal
In May of 2014, a woman in a same-sex relationship called a private Evangelical school in Ontario to inquire about enrolling her pre-school aged child. The school informed the woman that her application would be rejected because she and her partner would not be able to sign the school’s list of shared views because one of those views is that marriage is between one man and one woman. The parents filed a complaint with the Ontario Human Rights Tribunal, alleging discrimination under the Human Rights Code. However, the Tribunal found that the Christian school had a full defence as a religious organization.
You can read the entire judgment here.
The legal nuts and bolts
The way Ontario’s Human Rights Code works is that no one can discriminate in offering services to someone because of certain personal characteristics, known as “prohibited grounds of discrimination”. The list of prohibited grounds includes characteristics like ethnicity, religion, sex, and sexual orientation. This means schools typically cannot refuse admission because of the parents’ sexual orientation. The law creates a presumption that discriminating against someone because of one of these characteristics is unjust or prejudicial, although there are of course exceptions. Christian, Jewish, Muslim, or girls-only schools are all examples of perfectly legal discrimination and association.
If a religious organization serves religious people it is allowed to discriminate based on religious grounds
Section 18 of the Human Rights Code is a clause that allows special interest organizations an exemption to discriminate (i.e. differentiate or make a distinction) if they meet a three-part test.
- The organization must be religious, philanthropic, educational, fraternal or social.
- The organization must be primarily engaged in serving the interest of persons who share a certain characteristic listed in the Human Rights Code (i.e. religion, ethnicity, sex, etc.).
- The organization’s membership must be limited to those identified by the prohibited ground.
In other words, if a religious organization serves religious people it is allowed to discriminate based on religious grounds.
The Christian school’s policy and the law
The school in this case easily met the first part of the test outlined above, but the Tribunal was less certain about the second part. Its decision discussed several questions. What are the school’s shared religious beliefs? Are differing views about marriage among Evangelical Christians relevant here? Who is the school serving – the child or the parents?
The Tribunal decided that the belief that marriage is restricted to a man and a woman was a sincerely held religious belief by the school and the Evangelical community that they serve. The Tribunal noted that there is no distinction between the interests of the child and the parents as the child is pre-school age and it is the parents who are applying to the school on behalf of the child. The Tribunal also noted that the parents had other options and the child was not being denied access to education.
The Tribunal went on to find that membership is in fact limited to those of the Evangelical community meeting the third part of the test.
Concluding, the Tribunal noted that this scenario is exactly why the exemption exists in the Human Rights Code. The Evangelical community has the freedom to come together and form their own school without being coerced into broadening it.
Is this a loving decision?
ARPA Canada posted an article about this decision on our Facebook page and we received a lot of feedback. There were a couple of concerns expressed. One was that this school is failing to love the child. The phrase “what would Jesus do?” came up along with references to Jesus’ saying, “Let the children come to me.” Is it loving or even justifiable to exclude the child because of his parents?
The Human Rights Tribunal indirectly wrestled with this question when it dealt with who was being served by the school – was it the parents or the child? And this question arose for a lot of the same reasons the commenters were concerned. How could it be that the school would deny admission to the child because of the parents’ lifestyle?
The Tribunal found that you can’t separate the child’s and the parents’ interests legally. It was the parents who applied to the school. The religion of the child is assumed to be that of the parents because the child is not old enough to develop his own. The effect of this decision is a rejection of the parents’ application on behalf of the child. It is a practical reality that parents make a lot of decisions on behalf of their children – and it has long been recognized by the courts that parents determine the education and religious upbringing of their children.
The interconnected interests of the child and parent are exactly why the school rejected the child. It wasn’t any animosity towards the child or concern that the child might “contaminate” the other kids. The decision to not enrol this child was based on the school’s philosophy about education.
The decision to not enrol this child was based on the school’s philosophy about education
The philosophy of the school is this: education is the responsibility of parents, who make use of the school – not the other way around. The school describes its role as one of “assisting and supporting parents relative to their responsibility before God.” This philosophy understands education as not just downloading facts into a child’s mind, but shaping a child’s character. It also holds that the Bible is infused into every area of a Christian’s life. This means that Biblical teaching is not relegated to a specific class time. Nor, crucially, is education relegated to school hours. What is taught in the school needs to be reinforced in the home and vice versa.
The Tribunal recognized this philosophy as a “covenantal model” as opposed to a “missional model”. The covenantal model focuses on serving the needs of a particular Christian community. This is in contrast to a missional school which views its role as primarily offering Christian education to the broader community. The reason for the covenantal model is again tied to the school’s emphasis on its role as an extension of the Christian family and not a replacement.
Based on this philosophy, the school requires that the parents agree to certain core beliefs. This requirement does not arbitrarily police people’s conduct, but recognizes that in order for this philosophy of education to be effective, the parents and the school need to be on the same page about certain foundational beliefs. Because the school is an extension of the family, the child’s education is undermined when he is taught contradictory beliefs at home and at school.
The merits of one model over the other is a topic for another day. The reality is that this is a covenantal school and that fact affects more than just their admissions policy. It affects the entire way they educates the children. The question is, short of changing their entire educational philosophy, how can they love this child?
If the school accepted the child, he would have an education at school that attempts to shape his character one way just to have the exact opposite education at home. As the Tribunal stated, “the school recognizes that not all families share its views, and they did not want to confuse children by teaching something at odds with what parents might teach in the home.” The reality is there is a distinction between those children raised in Christian homes and those raised in non-Christian homes. That distinction is not something that a school can just erase by admitting this child.
———————————————-If the school accepted the child, he would have an education at school that attempts to shape his character one way just to have the exact opposite education at home——————————————-
While we feel for the child in this situation, you cannot ignore the interconnected nature of the parents and the family. The rejection cannot be viewed as merely a rejection of the child because the child cannot be viewed as independent from the family he is a part of. The loving response is recognizing the child as belonging to his family and recognizing the difference between a child being raised as a child of God verses one being raised to reject God.
To fulfill its duty to the other parents, to this same-sex couple and by extension to the child, the school had to deny admission and encourage the parents to seek out a school with either different core beliefs or a different philosophy of education.
This rejection should be accompanied by a clear direction to go to Jesus. This couple and this child need Jesus. The way to urge them to accept Jesus is not through blurring the sinfulness of the parents’ lifestyle and pretending that it bears no impact on the child. Instead this family needs to go to the church, repent of their sins, and cast their complete hope on Jesus Christ. We should eagerly pray for a day when this child can attend this school as a child of God.
Is this school targeting same-sex couples?
Another trend in the comments was to accuse the school of targeting same-sex couples. This is an unfair accusation. The school has rejected applications before because the parents did not attend church or because the parents were living together unmarried. This is not about targeting same-sex couples. It is about being committed to a Biblical ethic on sexuality (and much more than just sexuality!) and a covenantal understanding of education. It just so happens that the only parents to take the school to the Human Rights Tribunal were the same-sex couple.
The Tribunal also deals with the argument that the school would not be significantly impacted by making an exception in this case. It recognizes that demanding that exception goes to the very core of the school’s mission. The private school was established and parents send their children to this school specifically because of its religious nature, because of the code of shared beliefs, and because of the philosophy that education is a shared endeavor between the parents and the school. Demanding that the school diverge from these principles is to encroach on the freedom of the school and the other parents to practice their religion.
“The school’s views may not be popular and may not even reflect the views of the majority of Ontarians. This, however, is not a reason to remove this protection for adherents of the school’s creed, and may in fact be a reason to guard it.” – Human Rights Tribunal
This is demonstrated in the legal reasoning: this private school’s purpose is clearly to serve a specific community and it does so in a way consistent with the needs of that community. The school clearly communicated its philosophy and the demands that are made on parents, both through its handbook as well as in conversations with the parents. The Ontario Human Rights Code honours the freedom of organizations like this school. The Tribunal notes that “the school’s views may not be popular and may not even reflect the views of the majority of Ontarians. This, however, is not a reason to remove this protection for adherents of the school’s creed, and may in fact be a reason to guard it.”
To summarize, we have a decision based on good law. The Human Rights Code has, for good reason, an exemption for religious organizations. The Tribunal correctly applied it. Taking into account the parents’ choices regarding the child, the school made a decision that was in the best interests of the other students as well as this child. The same-sex couple who wanted to enrol their child in this school disagreed fundamentally with not just one belief but with the entire philosophy of the school.
This case is good news for Reformed schools too