SEXUAL ORIENTATION/GENDER IDENTITY POLICY – BACKGROUND
Overview
Policy # 5.45, Sexual Orientation/Gender Identity was approved by the Board of Education on June 14, 2011 at a public board meeting.
The Policy was developed over a two-year period to help address homophobic harassment and bullying in Burnaby Schools and to support the School District's commitment to provide safe and caring educational environments.
Burnaby is the 14th school district in British Columbia to address this issue through policy. In developing this policy, the Board of Education was guided by substantial research as well as guidance from the British Columbia Ministry of Education, the Canadian Charter of Rights and Freedoms, the British Columbia Human Rights Code, the Auditor General of British Columbia, the British Columbia School Trustees Association, and several legal precedents.
The Sexual Orientation/Gender Identity Policy is consistent with existing BC Ministry of Education curriculum. The District adheres to Ministry-approved curriculum and resources for all age levels which includes representations of diverse family structures, including LGBTQ families. Age-appropriate anti-homophobia education at the elementary level does not include discussion about sex or sexual practices.
This background document provides details of the policy development under the following headings:
History
LGBTQ Ad Hoc Advisory Committee
What the Committee Learned
Legal Precedents
Case Law
School District Precedents
Recommendations from Other Authorities
Public Consultations
- In May 2009, the Burnaby Board of Education received a request from a committee of teachers and support staff to form a group to address homophobic harassment and bullying, and homophobia and heterosexism, in Burnaby schools.
- At the June 23, 2009 public meeting, the Lesbian, Gay, Transgender, Bisexual, Questioning (LGTBQ) Ad Hoc Advisory Committee was struck in response to a recommendation from the Policy Committee meeting of June 15, 2009.
- The Board requested:
...that staff work with the presenters to form a district LGTBQ Advisory Committee that includes representatives from educational partners, LGTBQ groups and allies in the community for the 2009/2010 school year to advise the Board on LGTBQ issues, develop specific policies and form an action plan.
- February 23, 2010; the Education Committee agreed on a core membership for the LGTBQ Ad Hoc Advisory Committee to include representation from all key educational partners.
- LGTBQ Advisory Committee meetings were held:
- March 24, 2010
- April 15, 2010
- May 13, 2010
- June 17, 2010
- September 23, 2010
- October 28, 2010
- November 24, 2010
- January 26, 2011
- February 17, 2011
- At its October 12, 2010 public meeting, the Board received questions from members of the audience regarding its progress on the development of a homophobia/heterosexism policy.
- Over a 10-month period, the draft Homophobia/Heterosexism Policy # 5.45 was developed by the LGBTQ Ad Hoc Advisory Committee in keeping with District Policy and Policy Development Policy # 1.10.
- The process emphasized the importance of student voice and student safety. The committee also received input from outside presenters as suggested by committee members.
- At its February 22, 2011 public meeting, the Board approved the draft Homophobia/Heterosexism Policy # 5.45 to be circulated as a Notice of Motion.
- On February 25, 2011, the draft Homophobia/Heterosexism Policy # 5.45 and Notice of Motion was distributed to district partner groups for review and comment as directed by Policy # 1.10 and as is common District practice for all new or revised policies.
- On May 16, 2011, the Policy Committee of the Board, in response to feedback received to Friday May 13, the Policy Committee requested staff to review the draft policy with respect to the definition of "heterosexism" and reference to "curriculum" and to report back to the next Policy Committee meeting.
- At its meeting on June 7, 2011, the Policy Committee of the Board received a report from District staff that provided an overview of the public input to the policy over the entire 14-week period: Superintendent’s Report to the Policy Committee on Public Input to Draft Policy #5.45 Homophobia/Heterosexism
- Also at the June 7th meeting, staff presented the Policy Committee with a revised draft of Policy #5.45. The revised draft reflected consideration of all the public input the District received over the 14-week public input period, the substantial work done by the ad hoc committee, and the requested changes from the Policy Committee’s May 16th meeting.
- Following discussion and further clarification from staff, the Policy Committee received and agreed to recommend that the Revised Draft Policy #5.45 be approved by the Board at its June 14 public board meeting.
- At its June 14th public board meeting the Board Education unanimously approved Policy 5.45, Sexual Orientation/Gender Identity.
LGBTQ Ad Hoc Advisory Committee Membership
LGBTQ Ad Hoc Committee Membership included representatives from all District educational partner groups:
- 2 trustees
- 1 assistant superintendent
- 1 Safe & Caring Schools team member
- 1 elementary school principal
- 1 secondary school principal
- 1 CUPE representative
- 2 parents from District Parent Advisory Council
- 1 BTA executive member
- 1 elementary teacher
- 1 secondary teacher
- 1 counselor
- Students from various secondary schools
- Gay Straight Alliance sponsor teachers from various secondary schools
- Meetings were held at different secondary school sites to insure that students were able to actively participate in meetings and inform outcomes.
- Minutes of the LGTBQ Committee
- Report of the LGBTQ Committee
- "Student Voice" was a dedicated agenda item for students to speak to their experiences, concerns and ideas.
The following information is representative of what the committee learned over a 10-month period from research, interviews with students and teachers, case law, legal and school district precedents and guidance from other authorities.
From Research
McCreary Centre Society, Not Yet Equal 
(2007)
Compared to Heterosexual Youth, LGB Youth were more likely:
- To have experienced physical and sexual abuse, harassment in school, and discrimination in the community
- To have reported emotional stress, suicidal thoughts, and suicide attempts In addition:
- LGB youth felt less cared about by parents and less connected to their families than heterosexual teens, and for lesbian and bisexual females less connected to school.
- When bisexual youth reported high family and school connectedness, their probability of suicide attempts was much lower than for bisexual youth with lower connectedness, even when they had strong risk factors for suicide.
Cochrane/Morrison Report, How Safe and Welcoming are Saskatchewan Secondary Schools for LGBQ Youth? A report on student perceptions . (University of Saskatchewan, March 2010)
- "Fag talk" is rampant in our high schools.
- Students report much more "fag talk" than teachers.
- Students believe that teachers' rates of intervention are low.
- "Fag talk" is a very painful phenomenon for students – even straight students.
The First National Climate Survey on Homophobia in Canadian Schools Phase One Report 
(Egale Canada, March 2009)
- Three-quarters of LGBTQ students and 95% of transgender students felt unsafe at school, compared to one-fifth of straight students. Six-of-ten LGBTQ students reported being verbally harassed about their sexual orientation.
- Three-quarters of all participating students reported hearing expressions such as "that's so gay" every day in school. Half heard remarks like "faggot," "queer," "lezbo" and "dyke" daily.
- Over a quarter of LGBTQ students and almost half of transgender students had skipped school because they felt unsafe, compared to less than a tenth of non-LGBTQ students.
From Burnaby Students
The committee heard directly from Burnaby students that homophobic bullying is an ongoing issue that troubles youth and prevents their ability to learn and feel safe in school. The committee also heard from students that the statistics in the studies presented to the committee, reflected their own experience.
The committee learned from students, committee members, guest presenters and articles that:
- Homophobia and transphobia and related bullying have a negative impact on the learning environment of all school community members, regardless of sexual orientation or gender identity.
- Students who don't conform to conventional norms or stereotypes, or who are perceived to be non-heterosexual (whether they are heterosexual or not) experience homophobic bullying.
- Students whose families have the same gender parents or care-givers experience bullying.
- LGBTQ students need to see LGBTQ people represented amongst the diverse spectrum of people who have contributed significantly to our society.
- LGBTQ students need to see representations of family structures in society that reflect the diversity of our community including LGBTQ family structures.
- LGBTQ students need to feel welcome, safe and accepted as citizens in our school communities.
The following legal rights and precedents emphasize the district's responsibility to support proactively all minority groups including and specifically LGBTQ people.
Canadian Charter of Rights and Freedoms
Fundamental Freedoms
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom
of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
Equality Rights
15.(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Purposes
3 The purposes of this Code are as follows:
(a) to foster a society in British Columbia in which there are no impediments to full and free participation in the economic, social, political and cultural life of British Columbia;
(b) to promote a climate of understanding and mutual respect where all are equal in dignity and rights;
(c) to prevent discrimination prohibited by this Code;
(d) to identify and eliminate persistent patterns of inequality associated with discrimination prohibited by this Code;
(e) to provide a means of redress for those persons who are discriminated against contrary to this Code;...
Discriminatory publication
7 (1) A person must not publish, issue or display, or cause to be published, issued or displayed, any statement, publication, notice, sign, symbol, emblem or other representation that
(a) indicates discrimination or an intention to discriminate against a person or a group or class of persons, orbecause of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or that group or class of persons.
(b) is likely to expose a person or a group or class of persons to hatred or contempt
Discrimination in accommodation, service and facility
8 (b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or class of persons.
Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825
This case was heard by the Supreme Court of Canada in 1996. The Supreme Court found that:
"A school board has a duty to maintain a positive school environment for all persons served by it and it must be ever vigilant of anything that might interfere with this duty" (para. 50) and that "the freedom of expression of teachers can be restricted if it interferes with the establishment of a positive educational environment" (para. 2).
Kempling v. The British Columbia College of Teachers (BCCT), 2005 BCCA 327
In this case, a teacher at a public school wrote negative letters against the LGBT community to a newspaper. He was cited for misconduct and was found guilty, in front of an administrative tribunal, of conduct unbecoming of a BCCT teacher. In 2005, the British Columbia Court of Appeal sided with the administrative tribunal's decision and upheld Kempling's suspension. His appeal was dismissed.
School District No. 44 (North Vancouver) v. Jubran, 2005 BCCA 201
This case went in front of the British Columbia Court of Appeal in 2005 and the case was decided in favour of Jubran. Jubran was harassed at school because of his perceived sexual orientation. The Court found that a school has a duty to provide an environment that is free from harassment for all students.
Districts that have already adopted policies specific to LGBTQ issues, homophobia and heterosexism or have specifically identified sexual orientation in non-discrimination policies include:
Recommendations from Other Authorities
Auditor General of British Columbia
"Fostering a Safe Learning Environment: How the British Columbia Public School System Is Doing"
- "School districts should: Provide teachers with suitable guidance for encouraging tolerance and respect for students of same sex orientation." (#9, page 62)
The British Columbia School Trustees Association
(Resolution adopted at BCSTA AGM, April 2005)
"That the BCSTA encourages and supports school district policies that specifically address the safety concerns of, and prohibits discrimination against lesbian, gay, bisexual, and trans-identified students, as well as students who are harassed due to perceptions of their gender identity or sexual orientation; and has the Education committee draft a sample policy to aid school districts in this process."
Government of British Columbia Safe Schools Task Force
Facing Our Fears, Accepting Responsibility, Bullying, Harassment and Intimidation in BC Schools (June 1, 2003, Page 15)
"From our conversations with British Columbians all across the province, we have learned that bullying behaviour is often founded in discrimination based on perceived "differences" such as race, disability, gender or sexual orientation; that discrimination can have a negative impact upon student psychological and emotional health; and that bullying can contribute to decreased student participation in school and failure to graduate." (Introduction)
"The Task Force members heard that even the perception of being homosexual or of being tolerant of homosexuality is enough to result in harassment and intimidation, including both emotional and physical abuse from those who choose to bully.
"Presenters expressed concerned about the frequent use of homophobic language in schools. For example, the use of pejoratives such as "that's so gay" have become common in the lexicon of students for describing negative events or as an insult to make students who are, or are perceived to be gay, uncomfortable."
At its February 22, 2011 public meeting, the Board approved the draft Homophobia/Heterosexism Policy # 5.45 to be circulated as a Notice of Motion.
Once the Board of Education has approved a Notice of Motion as part of the policy development process, the Board notifies the community about a proposed new, revised or deleted policy and seeks input on the policy before a final decision is made. (See Policy # 1.10 District Policy Development .)
Following the February 22 public board meeting, the Notice of Motion and draft policy were distributed for feedback to all school principals and to the following District educational partner groups: Burnaby Association of School Administrators (BASA), Burnaby Teachers Association (BTA), Canadian Union of Public Employees Local 379 (CUPE), District Parent Advisory Committee (DPAC), District Student Advisory Committee (DSAC) and School Planning Councils. This is common district practice as detailed in Policy 1.10 (District Policy and Policy Development).
In addition the Board:
- Posted extensive information in English and Chinese about the draft policy on its website.
- Extended the public input period to June 3 for a total of 14 weeks.
- Welcomed and received input by mail, email and via delegation.
- Received 21 delegations at three different public board meetings.
At its June 7th meeting the Policy Committee received The Superintendent’s Report to the Policy Committee on Public Input to Draft Policy #5.45 Homophobia/Heterosexism .
Revised Draft Policy # 5.45
At its June 7th meeting, the Policy Committee received and agreed to recommend that a revised draft of Policy #5.45 be approved by the Board at its June 14 public board meeting.
Highlights of the revisions include:
- Changing the policy title to better reflect the content and objectives of the policy and to parallel existing District policies.
- Editing language for consistency, clarity and alignment with existing policies. This includes removing language that could be perceived as subjective.
- Providing clarification of how the policy regulations and procedures align with Ministry of Education standards and prescribed learning outcomes particularly in those sections of the policy that referenced "curriculum."
- Removing the definitions from the body of the policy to an appendix glossary. And replacing some definitions, including that of "Heterosexism," with more commonly accepted definitions.
Specific revisions include:
Under Administrative Regulations, Student Programs
- Further clarity on some of the curriculum connections to BC Ministry of Education prescribed learning outcomes and standards.
- Reinforcement that the curriculum implementation will meet BC Ministry of Education prescribed learning outcomes and be age-appropriate.
- Reference to Board Policy # 6.31 Alternate Delivery – Health and Career Education, i.e.: "In the case of potentially sensitive topics in the Health and Career Education curricula, students and their parents/guardians may arrange with the school for alternative instruction...."
Under Administrative Regulations, Learning Resources
- Further clarity that resources will meet BC Ministry of Education standards. Under Administrative Regulations, Counselling and Student Support
- Clarification that volunteer clubs that may exist for intermediate elementary students would respect and celebrate all forms of diversity.
Board of Education Vote
At its June 14th public board meeting the Board Education unanimously approved Policy 5.45, Sexual Orientation/Gender Identity.