PART I: FACTS

1. Equality for Gays and Everywhere (“EGALE”) is a national organization committed to advancing equality and justice for lesbians, men and bisexuals in Canada.

EGALE accepts the Statement of Facts set out in the Respondents’ Factum.

PART II: ISSUES

2. This appeal concerns a decision of the Surrey School Board (“the Board”) not to approve for use three books depicting same-sex families (“the Three Books resolution”). EGALE submits:

(a) that the Three Books resolution violates the requirements of the School Act, and was based on a failure to take account of relevant considerations;

(b) that the Three Books resolution violates the rights to equality, freedom of expression and freedom of conscience and religion guaranteed by the Canadian Charter of Rights and Freedoms (“the Charter”), and cannot be justified under s. 1; and

(c) that the appropriate remedy is an order directing that the Three Books be approved.

PART III: ARGUMENT

A. Introduction

1. Overview of EGALE’s Argument

3. The broader social context of this case requires an awareness that lesbians and gays have historically faced exclusion, and violence. Same-sex families have also been stigmatized and information and gay issues has been systemically excluded from the public education system. As a result, children of lesbian and gay parents are marginalized, and lesbian and gay youth often grow up feeling isolated and alone. The Board’s decision to ban the use of three otherwise appropriate books reinforces this marginalization and violates the

School Act, administrative law principles and the Charter. 2

2. The social, political and legal context for the appeal

4. Lesbians and gays face discrimination in Canadian society in numerous aspects of their daily lives. The has recognized the significant societal disadvantage faced by lesbians and gays, and our families, including the “public harassment and verbal abuse” we have faced, the fact that we have been “victims of crimes of violence” because we are lesbian and gay, and the discrimination we have experienced in employment and access to services.

Egan v. Canada, [1995] 2 S.C.R. 513 at 600-601 (“Egan”) M v. H & Ontario, [1999] S.C.R. No. 23 (QL); (1999) 171 D.L.R. (4th) 577 (“M v. H”) Vriend v. Alberta, [1998] 1 S.C.R. 493 (“Vriend”)

5. Courts have also recognized the “inexorable, cumulative effect” of systemic discrimination, based on “value assumptions that [are] ... hidden and unconscious.” Systemic discrimination results from a history of oppression which persists so long and is so extensive that it becomes institutionalized in the laws, customs, and prevailing attitudes of society.

Egan, supra, per L’Heureux-Dubé J. at 544 Public Service Alliance of Canada v. Treasury Board (1991), 14 C.H.R.R. D/341 at D/349 (C.H.R.T.) P.S.A.C. v. Staff of the Non-Public Funds, Canadian Forces (1996), 27 C.H.R.R. D/488 (F.C.A.)

6. Ubiquitous cultural and social approval of heterosexual relationships and the absence of similar references to lesbian and gay relationships result in the popular misconception that is natural and normal, whereas lesbianism and are deviant and perverse. Many lesbians and gays, particularly youth, internalize the prevailing message that they are not normal and consequently suffer insecurity, depression, and shame:

“As young people we are told that gays are to be avoided and gayness hidden because homosexuals are perverted, unhappy, disgusting and likely to molest heterosexuals. Sometimes it was said directly through jokes, verbal attacks and threats or reports of violence. Others of us heard more subtle comments ... bit by bit we began to accept what we were told. We 3

absorbed anti-gay beliefs even before we knew that we were gay. It was often only with great difficulty that we could acknowledge our own gayness, for then these beliefs would apply to us.”

Goodman, Lakey, Lashof & Thorne, No Turning Back: Lesbian and for the Eighties (Philadelphia: New Society Publishers, 1983), at 23-24

7. In the educational context, the suppression of references to lesbians, gays and bisexuals creates a learning environment in which young people are raised unaware of the diversity of families in Canadian society, and where the contributions of lesbians, gays and bisexuals to

Canadian history, art, literature, culture, family and social life are systemically devalued. Young people coming to terms with their may find themselves torn between risking rejection, discrimination and abuse by “” as lesbian, gay or bisexual, or concealing their same-sex identity and feelings, leading to loneliness, alienation and shame:

“The opposite of self disclosure, keeping this information entirely to oneself, is an affirmation of internalized , implying that this aspect of oneself is too shameful to disclose to anyone.”

“[W]e’ve been taught that gays are not worth loving and respecting. … It does not occur to us that we may be healthy and society may be sick.”

Sophie, “Internalized Homophobia and Lesbian Identity” (1987), 14 Journal of Homosexuality 53, 60; Goodman, Lakey, Lashof & Thorne, supra, at 24 Appeal Book (“A.B.”), Vol. V, pp. 830-831, 914; Vol. VI, pp. 1052-1053; Vol. VII, pp. 1236-1240

8. These messages of exclusion and “not belonging” are internalized by youth who may later grow up to identify as lesbian, gay or bisexual, and create problems such as a lack of self esteem, a high risk of parental rejection, peer abuse, homelessness, school dropout, drug abuse, unsafe sexual behaviour and prostitution. Isolation and low self-esteem contribute to inordinately high rates of youth suicide. As the authors of one report note:

“Many [lesbian, gay and bisexual] youth become depressed in the ongoing struggle with social fear and rejection, often inflicted as outright discrimination and violence which must be endured by these youth daily. Tragically, with no other avenues of acceptance or respite, many such adolescents begin to perceive suicide as their only means of escape.”

I. Kroll & L. Warneke, “The Dynamics of Sexual Orientation and Adolescent Suicide” (Calgary, 1995) i 4

Bagley & Tremblay, “Suicidal Behaviors in Homosexual and Bisexual Males”, A.B. Vol V, pp. 931-941 “Development of a Gay Identity” and “Gay Youth Environments” in The Experiences of Young in the Age of HIV, Health Canada (Ottawa, 1996) at 12-13, 19-20

9. In EGALE’s respectful submission, it is in this context that the public law and Charter questions raised by this appeal must be considered.

B. Violation of School Act

10. In EGALE’s submission, the trial judge was correct in finding that the Board’s decision violated the School Act. The Board’s authority to approve books is derived from the School Act, and must be exercised in accordance with the principles of that legislation. The Act establishes the fundamental principle of a secular and inclusive public education system, which is conducted in accordance with the “highest morality”. As “the supreme law of Canada”, the Charter necessarily informs the standards of morality required under the School Act (see Part D, infra).

School Act, 14 R.S.B.C. 1996, c.412, Preamble, s. 76

C. The Board failed to take into account relevant considerations

11. In reaching its decision, there are numerous relevant considerations which the Board failed to take into account. This is largely attributable to the fact that the Board was so influenced by its view that any book depicting same-sex families was, for that reason alone, inherently unsuitable for use that no other factor was considered relevant. Indeed, there is no evidence that each book even received independent consideration. As a result, the Board failed to consider:

 the actual content of the books;  the books’ capacity to advance the goals of the curriculum;  the books’ individual merit or value in affirming principles of tolerance or diversity; 5

 the needs of children with lesbian and gay family-members to see their families reflected in the curriculum;  the fact that lesbians and gays constitute a disadvantaged minority, and the impact of the decision to ban the books in reinforcing those conditions of disadvantage;  the fact that teachers are not precluded from teaching about same-sex families as part of the Family Life component of the curriculum, and the consequent need of teachers to have access to adequate resources. A.B., Vol. XXIII, pp. 4217-4221; 4244-4245, 4256

12. The Integrated Resource Package for the Personal Planning (“PP”) K to 7 curriculum provides that a healthy school environment “is an environment free from discrimination, harassment and intimidation - one in which individual differences and cultural traditions are valued and respected”. The “prescribed learning outcomes” of the Family Life Education component of the curriculum for grades K-1 require students to “identify a variety of models for family organization”, “identify the roles and responsibilities of different family members” and

“identify the characteristics that make the family environment safe and nurturing.”

A.B., Vol. I, pp. 101, 116

13. The Board failed to consider that each of the Three Books squarely advances these mandatory learning outcomes. The Books depict a variety of family forms, a diverse allocation of roles and responsibilities within the family structure and safe nurturing environments in which family members support each other in facing, discussing and overcoming obstacles. For example, Belinda’s Bouquet tells the story of a girl who is upset over a thoughtless comment about her weight and resolves to change her appearance. Her best friend’s mothers draw an analogy with the flowers in their flowerbed, pointing out that each is different, yet beautiful in its own way. As a result, Belinda learns to accept herself for who she is. The fact that same-sex 6 families form part of Canada’s diverse family structures has also been recognized by the

Supreme Court of Canada.

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, per L’Heureux-Dubé J. at 627-628, 630-632 Egan, supra at 610, 616 M v. H, supra

14. A further important factor which the Board failed to consider is that children with lesbian or gay family-members have a need to see their families reflected in the curriculum. Among the suggested instructional strategies, teachers are consistently encouraged to have children “tell each other about their families”, “compare different families” and “discuss those things that are the same and those that are different”. The assessment strategies similarly require teachers to “look for each student’s awareness that there are a variety of family groupings”. In the absence of suitable resources, students with lesbian or gay family-members will find the discussion isolating and exclusionary, instead of receiving the diverse education contemplated by the curriculum.

A.B., Vol. I, pp. 116-117

15. The Board also failed to appreciate that teachers are authorized, without Board approval, to address same-sex families among the variety of family models contemplated by the PP K-1 curriculum. The Board, in banning the Three Books, had no authority to restrict teachers’ ability to teach the curriculum, but only succeeded in ensuring that those teachers who choose to address the issue of same-sex families are denied the resources to address the issue effectively.

A.B., Vol. II, pp. 283, 290; Vol. V, pp. 869, 873

16. It is respectfully submitted that the Board’s failure to take these highly relevant factors into account requires that the Three Books resolution be quashed.

D. Violation of Charter 7

1. Application of the Charter

17. A public body exercising delegated powers exceeds its jurisdiction if it makes an order that would result in an infringement of the Charter.

Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038 at 1078 Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at 645 (“Eldridge”)

18. The respondents in this case comprise teachers, students, parents and authors of diverse sexual orientations, and are ideally positioned to assert that their Charter rights have been violated. The claimants are not, however, required to prove that their personal Charter rights have been infringed - it is sufficient to establish that the impugned decision violates the Charter.

A.B. Vol. 1, p. 39; Vol. IV, pp. 626, 736; Vol. VI, p. 950; Vol. IX, p. 1545 Eldridge, supra at 683-684 R v. Big M Drug Mart Ltd. [1985] 1 S.C.R. 295, at 314-315 (“Big M”) R. v. M.(C.) (1992), 75 C.C.C. (3d) 556 (Ont. Gen. Div.); aff’d (1995), 23 O.R. (3d) 629 (C.A.)

19. Charter rights are to be given their full content, independent of any s. 1 considerations.

Any reasons advanced by the Board to defend its decision to ban the Three Books can only be taken into account in considering whether the Board has discharged its onus under s. 1.

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 177-78, 181-182 (“Andrews”) R. v. Turpin, [1989] 1 S.C.R. 1296 at 1328 (“Turpin”) Egan, supra at 586, 592 Eldridge, supra at 680-681 Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825 at 868-869

2. Equality rights

(a) The Approach under s. 15

20. The Three Books Resolution must be examined in light of the purpose of s. 15. In applying this principle, the Supreme Court has affirmed that the guarantee of equality is meaningless unless full equality is accorded to lesbians, gays, and other marginalized minorities: 8

“It is easy to say that everyone who is just like "us" is entitled to equality. Everyone finds it more difficult to say that those who are "different" from us in some way should have the same equality rights that we enjoy. Yet so soon as we say any enumerated or analogous group is less deserving and unworthy of equal protection and benefit of the law all minorities and all of Canadian society are demeaned.”

Vriend, supra at 535-536 Big M, supra at 344 Andrews, supra at 171 Turpin, supra at 1333

21. The approach under a s. 15 inquiry has recently been summarized by the Supreme Court of Canada to require a finding of “differential treatment”, based on an enumerated or analogous ground, which “discriminate[s] in a substantive sense, bringing into play the purpose of s. 15(1) of the Charter in remedying such ills as , stereotyping, and historical disadvantage.”

Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at 524 (“Law”) (emphasis in original); aff’d M v. H, supra at 612

(b) Differential treatment

22. It is clear that the Board’s decision amounts to differential treatment. The Board banned the Three Books solely because they depict same-sex families. Equivalent books depicting opposite-sex families are available for use. Books portraying heterosexual parents are not subject to prohibition, books portraying lesbian and gay parents are.

23. At para. 65 of its factum, the Appellant suggests that the Board adopted a neutral position, by leaving all parents “in the same position of being able to teach their children according to their own views about homosexuality without interference from the schools.” This is similar to the argument in Vriend that the Government of Alberta adopted a position of

“neutral silence” by omitting any reference to sexual orientation in its legislation. The Supreme

Court in Vriend rejected this argument as based upon a “thin and impoverished notion of 9 equality”, and affirmed the statement in Brooks that “Underinclusion may be simply a backhanded way of permitting discrimination.” In this case, there is not even the appearance of neutrality: the Board adopted a specific resolution banning the use of books depicting lesbian and gay parents, while books depicting heterosexual parents are in common classroom use.

Vriend, supra at 539, 541 Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219 at 1240

(c) Sexual orientation an analogous ground

24. The Supreme Court has affirmed that sexual orientation is an analogous ground of discrimination, and encompasses the right to equal treatment for those in same-sex relationships.

Egan, supra, per Cory J. at 601-602, per L'Heureux-Dubé J. at 566-567 Vriend, supra at 546 M v. H, supra at 617

(d) Discrimination

25. It is submitted that the Board’s decision had a discriminatory purpose. The exclusion of materials depicting lesbian and gay families was no accidental oversight or omission, but a conscious decision based on the Board’s perspective that same-sex families are not worthy of equal representation in schools and should not be presented to schoolchildren as morally equivalent to opposite-sex families.

A.B., Vol. XXIII, pp. 4256-4259 Vriend, supra at 547 Big M, supra at 331

26. It is further submitted that the Three Books Resolution has a discriminatory effect, by perpetuating the view that same-sex families are “less capable or worthy of recognition or value”.

In M v. H, the Supreme Court considered that the legislative exclusion was discriminatory precisely because: 10

“[it] promotes the view that ... individuals in same-sex relationships generally, are less worthy of recognition and protection. ... As the intervener EGALE submitted, such exclusion perpetuates the disadvantages suffered by individuals in same-sex relationships and contributes to the erasure of their existence.”

M v. H, supra at 617, 621 Law, supra at 548 ff

27. This erasure of our existence has particularly severe consequences in the educational context. Isolation has been identified as “the most relentless feature in the lives of most gay, lesbian and bisexual youth.” The environmental factors contributing to isolation have been found to include lack of services, homophobia and denial of human rights protections, lack of adult role models, hostile school environments, rejection by religious groups, neglect by child welfare agencies and lack of training and awareness.

Canadian Public Health Association, Safe Spaces (August, 1998) at 5-8

28. One of the most serious and tragic consequences of the lack of adequate social support is the disproportionately high rate of suicide and attempted suicide for young lesbians, gays and bisexuals, a factor recognized by the Supreme Court of Canada.

Egan, supra at 601

29. The social factors leading to lesbian, gay and bisexual youth suicide have also been linked to a broad array of other serious difficulties:

“Suicide, however, is just the ‘tip of the iceberg’. Other problems include lack of self-esteem, internalized shame and guilt, self hatred, and lack of self worth, which are learned and experienced by these youth in and through almost every aspect of their lives. The ubiquitous negative gay stereotype often results in further rejection of these youth by those persons who remain uninformed, fearful or unaccepting. Family discord, abandonment and horrendous victimization of all kinds can result. Some youth may turn to alcohol or drugs to seek refuge from the accompanying isolation while others may take heroic measures to gain acceptance by proving themselves to be ‘heterosexual’ at significant cost to others in the form of unwarranted hatred and violence, as well as to themselves in continued isolation and unacceptance of a central and immutable component of the very essence and core of themselves.”

Kroll & Warneke, supra 11

C. Bagley & P. Tremblay, A.B. Vol V, pp. 931-941

30. In Vriend, the Supreme Court of Canada stated that the legislative exclusion,

“deliberately chosen in the face of clear findings that discrimination on the ground of sexual orientation does exist in society, sends a strong and sinister message.” In this case, the message sent by excluding books depicting same-sex parents is equally “strong and sinister”. It is that there is something wrong with our families to the extent that they should be hidden from view or, worse yet, that they do not exist at all.

Vriend, supra at 550

31. The effect of the Three Books resolution is to perpetuate stereotypes about same-sex families, contribute to the erasure and invisibility of our existence and exacerbate conditions of disadvantage, with particularly damaging consequences for children of lesbians and gays and for those youth who will grow up to identify as lesbian, gay or bisexual. It is therefore submitted that the resolution demeans human dignity and constitutes discrimination contrary to s. 15.

3. Freedom of expression

32. The right to freedom of expression has been described as “[t]he very lifeblood of democracy”, and is based upon the following values:

“(1) seeking and attaining the truth is an inherently good activity; (2) participation in social and political decision-making is to be fostered and encouraged; and (3) the diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment....”

R. v. Kopyto (1987), 62 O.R. (2d) 449 at 462 (C.A.) Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 at 976 (“Irwin Toy”)

33. The expression at issue in this case directly engages these three core values. The use of the three books in the classroom would inform children in a truthful way about the diversity of 12

Canadian families, and would communicate the importance of accepting all individuals, regardless of their sexual orientation or family status. Through the Board’s decision, human flourishing is restricted and individual self-fulfillment subordinated to the dubious objective of shielding children from the knowledge of difference.

34. The author of Asha’s Mums (Respondent Rosamund Elwin) summarized the expressive content of the message she was seeking to convey as follows:

“Writing Asha’s Mums was important because there were no other picture books published on the subject of same-sex families in Canada. ... We wanted to convey to the children and adults who would read the story the message that a family is a family based on how they love, support and care for each other. ... It is my belief that Asha’s Mums sends messages to children about awareness of differences, diversity and tolerance for people who are not like themselves. ... It is only with education that the future generation does not repeat the mistakes of the past.”

The Board’s decision to ban the books impedes the communication of these important messages.

A.B., Vol. IX, p. 1547

35. The Supreme Court has further held that if the purpose of a decision “is to restrict the content of expression by singling out particular meanings that are not to be conveyed, it necessarily limits the guarantee of free expression.” The Three Books Resolution prohibits the books specifically because of their gay and lesbian content. The Board considered that knowledge of the mere existence of same-sex couples is a concept unfit to be conveyed. The refusal to acknowledge our families in the classroom is based on the notion that ignorance is preferable to knowledge. It is difficult to imagine a more blatant infringement of the right to freedom of expression.

Irwin Toy, supra at 974 (emphasis added) A.B., Vol. XXIII, pp. 4256-4257

4. Freedom of conscience and religion 13

36. The right to freedom of conscience and religion is premised upon the acceptance of difference, “accommodat[ing] a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct, ... [and] respect for the inherent dignity and the inviolable rights of the human person.”

Big M, supra at 336 R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713

37. There is a significant difference between accommodating religious diversity and giving effect to religious intolerance. The Board may certainly take account of religious differences in order to accommodate the right of Sikh students to wear kirpans or the right of Jewish students to celebrate Jewish holy days for example. This is in accordance with the accommodation of a wide variety of beliefs. It may not, however, require that the views and values of one religion be imposed upon all students. The exercise of freedom of religion requires that the rights of others to hold a contrary point of view may not be limited.

Big M, supra at 346-347

38. It is axiomatic that the right to freedom of religion includes the right to freedom from religion. Just as the right to freedom of conscience and religion precludes favouring one set of religious values over another, so too it prohibits favouring religious views over the secular or non-religious perspectives of parents. The Surrey community includes parents who oppose homosexuality on religious grounds. It also includes parents whose religious values embrace tolerance of diversity and who therefore support the use of the three books on religious grounds, as well as parents who support the use of the three books on secular grounds. The Board asserts that it sought to respect the religious views of parents. This is inaccurate - in fact, it chose to 14 respect the religious views of only those parents opposed to homosexuality. This approach amounts to “the enforcement of religious conformity”, contrary to s. 2(a) of the Charter.

Big M, supra at 351

39. At para. 66 of its factum, the Appellant asserts that “freedom of religion must include preventing the schools from teaching against religion and the religious beliefs of members of the community.” Some religions object to and remarriage, some object to couples living common-law without getting married, some object to solo parenting, some object to interracial . Some religions take a narrow view that it is a woman’s role within a relationship to attend to matters of child-rearing. The Appellant’s argument would give parents a religious veto, requiring that books depicting all these diverse families be banned to avoid offending some parents’ religious beliefs. This is precisely what s. 2(a) of the Charter is designed to prevent:

“What may appear good and true to a majoritarian religious group, or to the state acting at their behest, may not, for religious reasons, be imposed upon citizens who take a contrary view. The Charter safeguards religious minorities from the threat of ‘the tyranny of the majority’.”

Big M, supra at 337 Loving v. Virginia, 388 U.S. 1 (1967) at 3

40. Section 29 of the Charter explicitly protects separate or denominational schools from

Charter scrutiny. Parents wishing to ensure that the school curriculum reflects nothing other than their own personal religious values may enrol their children in such schools; in the public school system, however, the Charter precludes religious viewpoints from dictating the content of the school curriculum.

5. Rights violations not justified under s. 1

(a) High onus of proof 15

41. The onus of justifying a Charter infringement is an onerous one and evidence offered in support of the justification must be cogent. The Three Books Resolution strikes at the core of the rights to equality, freedom of expression and freedom from religious conformity. The severity of the Charter violation cannot be fully appreciated by analyzing each independently, since it is the intersection between these rights violations that creates the unique disadvantage for members of our communities. The Appellant should therefore be held to a rigorous onus under s. 1.

Andrews, supra at 154 Rosenberg v. Canada (A.G.) (1998), 38 O.R. (3d) 577 at 587 (Ont. C.A.) Thomson Newspapers Ltd. v. Canada, [1998] 1 S.C.R. 877 at 943

42. The Appellant has not discharged its onus of demonstrating the need to ban the books.

Only one Trustee on the Board gave evidence. Under cross-examination, she acknowledged that the Three Books would have no “adverse effect” upon children.

A.B., Vol. XXIII, p. 4202

(b) No pressing and substantial objective

43. It is submitted that the Appellant has failed to identify any pressing and substantial objective for banning the Three Books. Every reason advanced to support the Board’s decision is directly related to the fact that the books portray same-sex couples in a way that would be age- appropriate if the depiction were of opposite-sex couples. To allow these reasons to serve as pressing and substantial objectives under s. 1 would be “fundamentally repugnant because it would justify the law upon the very basis upon which it is attacked for violating” the Charter rights.

Big M, supra at 352

16

44. The Supreme Court of Canada has noted that “not every government interest or policy objective is entitled to s. 1 consideration.” To justify overriding a constitutionally protected right, an objective must be consistent with the principles and values of a “free and democratic society”. In this case, the decision to ban the three books was made for reasons which are antithetical to the values of “respect for human dignity”, “enhancing diversity”, and “the accommodation of a wide variety of beliefs”, and which are therefore incapable of forming the basis for a s. 1 justification. The Three Books resolution undermines human dignity, limits depictions of diversity and subordinates the legitimate beliefs of some to the will of others.

Big M, supra at 336, 352 R v. Oakes, [1986] 1 S.C.R. 103 at 136 R v. Keegstra, [1990] 3 S.C.R. 697 at 736, 756 Andrews, supra at 171 R v. Morgentaler, [1988] 1 S.C.R. 30 at 164-167, 171

45. In Vriend, the Alberta government advanced a number of reasons for excluding gays and lesbians from human rights protection, including the view that “attitudes cannot be changed” by legislation and that “[c]odification of marginal grounds which affect few persons raises objections from larger of others”. The Court rejected these as valid s. 1 objectives, saying that while “these statements go some distance toward explaining” the decision to exclude gays and lesbians, they failed to demonstrate any governmental objective. It is submitted that the reasons advanced by the Appellant in the present case similarly explain why the Board made the decision it did, but fall well short of establishing any public policy objective for banning the books.

Vriend, supra at 556-557

46. “Objections from large numbers of [people]” are never a proper justification for infringing a Charter right. Balancing of interests under the Oakes test is not a question of 17 popular will or majority sentiment, but a balancing of constitutionally respected interests.

Discriminatory attitudes, even if held by a majority, are no justification for discrimination: rather, the discriminatory attitudes are at the root of the problem of discrimination itself:

“[T]he concept of democracy means more than majority rule. ... Where the interests of a minority have been denied consideration, especially where that group has historically been the target of prejudice and discrimination, I believe that judicial intervention is warranted to correct a democratic process that has acted improperly”.

Vriend, supra at 557 Rosenberg, supra at 587 Reference re Secession of Quebec, [1998] 2 S.C.R. 217 at 260

47. Allowing decision-makers to justify a denial of equality by asserting that they are not themselves discriminating, but simply taking into consideration the discriminatory attitudes of others, would reduce the constitutional guarantees of the Charter to “empty words”.

Vriend, supra at 560

(c) No rational connection

48. To the extent that the Board purports to be advancing the objectives of the School Act, there is no rational connection between maintaining a secular and inclusive public education system and banning depictions of same-sex families on religious grounds. Nor is there a rational connection between the Board’s decision and the objective of the CAPP curriculum to “identify a variety of models for family organization” in an environment “free from discrimination”.

A.B., Vol. I, pp. 101, 116

(d) No minimal impairment

49. There is no evidence that the School Board made any attempt to minimize its intrusion upon constitutionally-protected rights or even to consider reasonable alternatives. Through the

Three Books resolution, it sought a total ban on any depictions of the existence of same-sex 18 families. As was the case in Vriend, “[t]he exclusion constitutes total, not minimal, impairment of the Charter guarantee of equality.”

Vriend, supra at 561

(e) Deleterious impact of the resolution outweighs its salutary effects

50. At the third stage of the proportionality test under s. 1 of the Charter, the School Board must establish that the salutary effects of the ban outweigh its adverse effects.

Thomson Newspapers v. Canada, supra at 968-972

51. It is submitted that the positive effect of banning books depicting same-sex families is speculative at best. The only real benefit identified by the Appellant is the desire to avoid

“dissonance” for those children whose parents wish to teach them that homosexuality is sinful.

Such “dissonance” however, is an inevitable consequence of living in a diverse and pluralistic society. The child whose parents maintain the position that divorce is a sin will quickly discover through the PP K-1 curriculum that many of his or her classmates are being raised by solo parents, parents who have divorced or remarried, or parents in blended or extended families.

52. It should also be noted that in an educational setting, the Supreme Court of Canada has held that the parents' view of their children's best interest is not dispositive. Rather, it is the best interests of the child which should prevail. Some of the children whose parents object to the

Three Books will themselves grow up to be lesbian or gay. For those children, their parents’ views, however sincerely held, will exacerbate their isolation and stress.

Eaton v. Brant (County) Board of Ed., [1997] 1 S.C.R. 241

19

53. Tolerance and acceptance are not “age inappropriate”, any more than religious, ethnic or racial tolerance are values that are too “controversial” to be taught to the young. Children are constantly exposed to religious, racial and other differences. The Preamble to the School Act mandates that children “acquire the knowledge, skills and attitudes needed to contribute to a healthy, democratic and pluralistic society”. This approach is also consistent with s. 27 of the

Charter of Rights, which affirms that the Charter is to be interpreted in a manner “consistent with the preservation and enhancement of the multicultural heritage of Canadians.”

54. By contrast, the deleterious effects of the Three Books resolution are multiple and severe.

The resolution violates the principles of a secular, diverse and inclusive public education system.

It is inconsistent with the goals of the CAPP curriculum to depict a variety of family forms. It suppresses a form of expression that enhances the core values of the School Act and the Charter of Rights. It marginalizes children with same-sex parents in the classroom and seeks to suppress accurate information about the diversity of Canadian families. It denies teachers the resources they need to address the curriculum. It stigmatizes lesbians, gays and our families, and reinforces our exclusion and invisibility.

55. The adverse consequences of banning depictions of same-sex families cannot be understated. Through the systematic exclusion of lesbian and gay issues throughout the school curriculum, the isolation of those children who will grow up to be lesbian and gay is reinforced from an early age. Discriminatory attitudes are ingrained which manifest themselves in later years as derogatory comments, harassment and physical assault or gay-bashings. The self-esteem of students coming to terms with their lesbian or gay identities is systematically eroded, resulting in increased rates of school drop-out, drug abuse and youth suicide. 20

56. It is submitted that the severe harmful effects of the resolution outweigh the speculative benefit of shielding children from the knowledge of difference.

E. Remedy

57. EGALE supports the Respondents’ request for a mandamus order or an order under s.

24(1) of the Charter directing that the Three Books be approved for use. Section 24(1) of the

Charter allows a court to direct an elected body to take a particular action in order to rectify a s.

15 violation. Where the only reasons advanced to support a decision are unconstitutional, and where members of the Board have announced that they will vote to ban any book depicting same- sex families in future, it is submitted that the only remedy which is “appropriate and just in the circumstances” is an order directing that the books be approved for use.

Mills v. R., [1986] 1 S.C.R. 863, 29 D.L.R. (4th) 161 at 181 Eldridge, supra at 691

PART IV: ORDER SOUGHT

58. EGALE supports the dismissal of the appeal and an order directing that the Three Books be approved for use.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

______Gwen Brodsky

______Ken Smith