Win a little, lose a lot

Legal battles can be frustrating at the best of times. Particularly when you don’t know who won.

Everyone is claiming victory in the Sep 20 court decision on the Surrey School District’s condemning of three children’s books that showed same-sex families as regular folk.

“A prudent teacher should consult with colleagues, parents and the principal before using sensitive materials. But if the books are in the library and otherwise age appropriate stories, incidental classroom use by a teacher is primarily a matter for the professional judgment of the teacher rather than one of general policy for the board,” unanimously wrote the three British Columbia Court Of Appeal judges who wrangled this one out.

But exactly how that works out in practice is more complicated.

Here’s what happened back when this was argued in a Vancouver courtroom.

Lawyers for the school trustees defended a 1997 resolution that said the three kids’ books are not “recommended” as learning and library resources. They then argued that teachers shouldn’t be allowed to take these books out of the libraries and into the classrooms.

The judges called this train of thought “absurd.” They ruled that nothing prevents teachers from using these books – Belinda’s Bouquet, Asha’s Mums and One Dad, Two Dads – aimed at five- and six-year-olds.

Sounds like the school board lost? Not exactly. The resolution itself was upheld.

And what is perhaps more troubling are some of the other things the judges said.

The decision makes passing comments about the importance of not discriminating on the basis of sexual orientation (that is, after all, the law). “Discrimination against children because of their sexual orientation of their parents would be even more invidious.”

But the judges also accepted as a kind of social fact that “some aspects of human sexuality remain morally controversial, including homosexuality or ‘same sex’ relationships.” It’s never a good sign when the court puts “same sex” in quotation marks.

Gay teacher James Chamberlain challenged the book ban and won at a lower court, a decision the Surrey trustees then appealed. The BC Court Of Appeal seems to criticize Chamberlain for causing a fuss in the first place.

“Sexual orientation issues raise strong emotions and Mr Chamberlain must have known that by advancing these three books, he was inviting a confrontation with the board.”

While children themselves may appreciate the values of love and caring family relationships expressed in the books, the court is of the view that using these books could still harm these children.

Chamberlain, wrote the judges, must have expected that “these books would come to the attention of parents who would object to the sexual orientation dimension as morally offensive. The anticipated confrontation would be an adult confrontation, but as it would involve parents, teachers and the board, children would inevitably drawn in.”

Translation: Chamberlain should have known that trying to use these books would hurt children because of their parents’ views about gay folks.

“Discrimination aside, parental views on matters of sexual orientation are entitled to be respected even if… ‘they may seem extremely peculiar and vastly perplexing to the majority.'” (The second half of this quote is taken from a gay rights decision from the Supreme Court Of Canada.)

Discrimination aside? Discrimination was the point here, alongside the intractable problem of the urge to censor.

The court then appealed to international human rights, which recognize the right of parents “to ensure the religious and moral education of their children in conformity with their own convictions.”

The judges don’t mention that Canadian courts have yet to decide whether such parental rights are protected by the right to liberty in the Charter Of Rights And Freedoms.

And then it’s back to blaming Chamberlain, who (along with intervenors like the group Equality For Gays And Lesbians Everywhere) “were pursuing a broader agenda that was bound to be confrontational at the adult level and it is hard to see how children at the K-1 level could be well-served by that confrontation having regard to the ultimate objective of the curriculum of celebrating the nurturing value of families.”

The message here is clear. Don’t take your political agenda into the classroom.

The BC court has created some space for these books to be read in the classroom. But it has also given school boards and parent associations considerable leeway to continue to try to ban books on the basis of their moral content.

Who won? Who knows.