LGBT relationships and the school curriculum: a human rights analysis

4 June 2019 by

Image: The Guardian

What is the scope of a school’s duty to accommodate the religion of a parent whose children attend its schools? From September 2020, it will become mandatory for “relationship education” which includes lessons about LGBT relationships to be taught in English primary schools under the Children and Social Work Act 2017. According to a petition by Muslim parents in Birmingham, however, such teaching contradicts the Islamic faith, thereby violating their freedom of religion.

The ongoing protests raise a host of questions about the boundaries between religious rights and the obligation of the state to promote social inclusion through universal and non-discriminatory education.

In this article, it will be argued that the rigorous approach taken by the Canadian courts to this issue should serve as a template for possible future consideration by the English courts and also that uneven standards in the statutory guidance for maintained and independent (including faith) schools undermine the equality duty in the UK.

The legal framework

English law gives a privileged status to parents in determining the nature of their children’s education. According to Section 76 of the Education Act 1944, “pupils are to be educated with the wishes of their parents”. Another aspect of the legislative content of domestic education law is the law of human rights. Article 9 of the HRA articulates the right to freedom of thought, education and conscience. Also central is Article 2 of the First Protocol (A2P1) to the European Convention of Human Rights. A2P1 has been described as the “lex specialis” for Article 9 in the education context: Lautsi v Italy (2012) 54 EHRR 3 [59].

A2P1 sets out two principles. The first states that “no person shall be denied the right to education”. The second is that, in exercising any functions in relation to education and teaching, “the State shall respect the right of parents to ensure that such education and teaching is in conformity with their own religious and philosophical convictions.” In Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711 – a case concerning mandatory sex education – the Court held at [52] that:

… the State, in fulfilling the functions assumed by it in regard to education and teaching, must take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner. The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions. That is the limit that must not be exceeded.

In Folgero v Norway (2008) 46 EHRR 47, the Court held that failure to grant exemption from religious instruction with a Christian bias fell short of conveying information in an objective, critical and pluralistic manner for the purposes of A2P1. This was the case even though there was no finding in the judgment that the state had “pursued an aim of indoctrination”. Importantly, the Court identified a positive duty on the part of the state to ensure respect for parents’ convictions, which includes ensuring a fair balance between majority and minority rights and interests. A similar conclusion, mandating “impartiality” in the state’s assessment of religious beliefs was found in Zengin v Turkey (2008) 46 EHRR 44.

In the educational context, therefore, the issue is not the existence of a parental right, but its reach. Importantly, these cases principally concerned claims of the state’s failure to perform its duties from a standpoint of neutrality and impartiality as regards the quality and validity of parents’ convictions. The issue of LGBT curricula, by contrast, involves a contest between parent and state over the pursuit of an independent social policy goal. To this extent, parent’s rights are bounded by the existence of a legitimate state aim.

The Department for Education’s statutory guidance

According to the Department for Education’s draft guidance for teaching Relationships Education, the policy goal is to foster an inclusive ethos through a policy of non-discrimination outlined in the Equality Act 2010.

Schools must not unlawfully discriminate against pupils on grounds of their protected characteristics. These include religion or belief, gender reassignment or sexual orientation. To that end, schools should ensure that “all pupils understand the importance of equality and respect”. Teaching should be “sensitive and age-appropriate in approach and content” and schools have discretion for when they consider it appropriate to teach their pupils about LGBT. Even though schools are free to determine how they address LGBT specific content, the DfE expects, “all pupils to have been taught LGBT content at a timely point,” and that “they should ensure that this content is fully integrated into their programmes of study for this area of the curriculum rather than delivered as a standalone unit or lesson.”

In discharging this obligation, teachers should maintain a level of dialogue with parents, ensuring parents know what will be taught and when. Importantly, the right to withdraw is limited to sex education. The scope for parental contest, therefore, concerns the determination of what is “age-appropriate” and “inclusive”. Indeed, protesting parents have argued the inclusion of any LGBT issue within primary school curricula amounts to “inappropriate” homosexual proselytization.

The DfE’s guidance may be compared with that of foreign legislation. For example, Section 169.1(1) of Ontario’s Education Act requires schools to actively promote a climate that is inclusive and accepting of all pupils. Indeed, such a provision may be classified as an iteration in the inculcation of civic virtues. Furthermore, the preamble to the South African Schools Act, 1996 (SASA) recognises that there is a need to redress past injustices in educational provision, and to combat all forms of unfair discrimination and intolerance. These provisions seek to promote understanding and respect of all learners.

The Canadian approach

Faced with challenges to this policy of inclusion, the Canadian courts have rigorously adjudicated the parameters of state interference with the freedom of religion in the school setting.

In E.T. v. Hamilton-Wentworth District School Board [2017], the Ontario Court of Appeal considered a request for accommodation by a Greek Orthodox parent who desired to shield his child from “false teachings”. Among other issues, the applicant wanted to withdraw his child from classes that included teachings on human sexuality and same-sex relationships.

The applicant sought declaratory relief, asserting that his parental authority over the education of his children had been denied and that his freedom of religion as guaranteed under s. 2(a) of the Charter of Rights and Freedoms was violated by the Board’s failure to provide him with the accommodation he requested. He also asserted a claim of religious discrimination under the Human Rights Code and Education Act.

Justice Sharpe dismissed the appeal on grounds that a sincere religious belief alone is insufficient to establish interference with E.T.’s freedom of religion.

The Judge cited various judgements by the Supreme Court of Canada to reach this conclusion. In S.L. v. Commission scolaire des Chênes [2012], the Court held that an infringement of the right to religious freedom “cannot be established without objective proof of an interference with the observance of that practice”. In that case, parents asked to have their children exempted from Quebec’s mandatory Ethics and Religious Culture Programme that had replaced Catholic and Protestant programs of religious and moral instruction. The parents objected that the ERC Program would expose their children to “a form of relativism, which would interfere with [their] ability to pass their faith on to their children” (at para. 29) because it presented different beliefs on an equal footing.

While the Court acknowledged the sincerity of the parents’ beliefs, no meaningful interference with their capacity for religious transmission could be established. Per Deschamps J, mere exposure to alternative perspectives was a part of Canada’s multicultural reality and part of the Quebec governments obligations regarding public education.

Deschamp J’s ruling itself was informed by the that of McLachlin C.J.C. in Chamberlain v. Surrey School District [2002] where the Supreme Court considered a challenge to a school board’s decision to refuse to approve books suggested by a teacher depicting same-sex parented families for use at the kindergarten-grade one level. The Supreme Court held that, given the Board’s statutory mandate of secularism and tolerance, its decision was unreasonable. The Board had failed to proceed on the basis of respect for all types of families and had instead adopted an exclusionary philosophy, responding to the concerns of certain parents regarding the morality of same sex relationships. This approach failed to consider the right of children of same-sex parented families to be accorded equal recognition and respect in the public-school system.

As McLachlin C.J.C. pointed out, at paras. 64-67, the “cognitive dissonance” that a child might experience from learning about things that do not correspond to the views of the child’s own parents is part and parcel of growing up in a diverse society committed to the acceptance of the fact of differences in lifestyles and moral and religious views. “[S]uch dissonance”, wrote McLachlin C.J.C., “is neither avoidable nor noxious” but rather something children encounter every day as members of a diverse student body in a public-school system. This kind of cognitive dissonance “is simply a part of living in a diverse society” and “arguably necessary if children are to be taught what tolerance itself involves.”

Informed by these perspectives, in ET Sharpe J held that exempting some students on a regular basis from classroom discussions touching on diversity, inclusivity and acceptance, within a public school program designed to promote precisely those principles, would run a serious risk of endorsing the non-acceptance of students of other family backgrounds, sexual orientations, gender expressions and gender identities.

An exception for independent schools?

Crucial to these Canadian judgements was the fact that the schools in question were non-denominational public schools, statutorily obliged to further inclusiveness.

In the UK context, therefore, it is possible that independent schools, including faith schools might be subject to lower standards. For example, while the DfE’s policy applies to all schools, it states that “[a faith] school may wish to reflect on faith teachings about certain topics as well as how their faith institutions may support people in matters of relationships and sex.”

In conjunction with the provisions on age-appropriateness, the guidance for independent schools offers a loophole for the avoidance of LGBT-inclusive content. Unlike the guidance for the maintained sector, the discretion extends to the appropriateness of the subject-matter itself, rather than the method of its instruction. This amounts to a diluted approach to upholding the equality duty.

Conclusion

The legal debate over LGBT-inclusive curricula exemplifies the scope for protected characteristics to clash. The navigation of that conflict requires scrupulous analysis of the limitations to legal protections in line with objective criteria. The Canadian approach to such questions showcases a compelling distillation of principles. While the DfE’s equality duty amounts to a legitimate aim in the maintained sector, the replication of that argumentation in the context of faith schools is likely to be more difficult.

Sapan Maini-Thompson is an LLM Candidate at University College London.

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