Charter challenge of Alberta GSA legislation will face difficulties, law professor says
Lawyer argues law violates parents charter rights but constitutional expert says infringement can be justified
A constitutional law professor at the University of Alberta says a charter challenge to gay-straight alliance legislation will face difficulties.
Lawyer John Carpay, with the Justice Centre for Constitutional Freedoms, filed the lawsuit Thursday on behalf of a group of parents and 26 religious private schools.
The legislation, passed last November, prevents schools from notifying parents if their children join a GSA. Forty-two MLAs voted in favour. All 23 United Conservative Party members present voted against it.
The statement of claim filed by Carpay argues the law violates the freedom of religion and expression of the complainants, a group that includes three schools in Edmonton, four in Calgary, as well as parents from public schools.
"It's like trying to use an atomic bomb to kill a fly," Carpay said in an interview Friday. "It's got good intentions. But to not distinguish between the very small number of abusive parents and the vast majority of parents who love their kids, and treat them all like they're all the same, I don't think a court's going to be too favourable looking at that."
'Ideological sexual clubs'
The parents "are alarmed and frightened at the climate of secrecy that the School Act has created around ideological sexual clubs," according to the statement of claim. The legislation, it said, "creates an environment conducive to manipulation and to the sexual abuse or exploitation of younger children by older or more sexually experienced youth."
The complainants argue the legislation tramples on their beliefs "by requiring and facilitating the clandestine teaching of a government-promoted sexual ideology."
The lawsuit also alleges that an autistic teen who joined a GSA became suicidal after being "convinced" to dress as a boy at school, while public school officials "intentionally withheld information."
The reference to GSAs as "ideological sexual clubs" potentially mischaracterizes the groups' activities and the intent of the legislation, said Eric Adams, associate professor of law with the University of Alberta.
"So I think that is something that puts the claim already off on a footing that will be open to debate about whether they're accurately identifying the topic of their opposition," said Adams.
He said the lawsuit is vague about how GSAs violate the charter freedoms of parents. Governments can justify infringements with the right evidence, he said.
"The evidence, as far as I understand it, is that GSAs help to keep kids safer and in some cases may actually save lives," he said. "It seems to me that's going to amount to a pretty compelling set of justifications about why they exist in the way that they exist."
The lawsuit is the latest in an ongoing battle over the past few years over the rights of LGBTQ students in the classroom, often pitting conservative and religious groups against the government and LGBTQ advocates.
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"Our government is confident that the courts will uphold the right of every student to form a gay-straight alliance without fear of being outed," Education Minister David Eggen wrote in an emailed statement. "Schools that don't follow the law will risk having their accreditation and funding stripped, period."
Kris Wells, assistant professor in the faculty of education at the University of Alberta, said he was "deeply disappointed" that groups would spend time challenging the law "rather than working to actively support LGBTQ youth in their schools."
"This sends a very harmful message to those young people in their schools around what people really think of them and their identity," Wells said.