Thursday, January 16, 2014

York U's Accommodation Crisis: Should the Code be Changed?

I posted last week about the controversy at York University regarding the accommodation of a student whose religious beliefs prevent him from mingling with women.

My argument, simply, was that there's no undue hardship in the specific accommodation being sought.  He didn't want a gender-segregated environment; he chose to isolate himself by taking online courses, and was simply asking to be excused from a single group assignment in an otherwise-online course.  In respect of the same assignment, other students had been excused in the past, without any unfairness resulting to other group members.

While I've seen one legal commentator argue that it's wrong to accommodate this student, the vast consensus among lawyers and legal academics appears to be consistent with my conclusion:  The decision to accommodate was the only correct decision in light of the Human Rights Code.

However, there's a significant backlash - people consider this result to be unacceptable, and think that the Code should be changed.

I think this calls for a closer analysis of why.

Why is this result argued supposedly unacceptable?

Professor Paul Grayson, who is the professor of the course in question and defied his Dean to refuse to accommodate, was published today in the Globe.  He argues that the Code is out of touch with Canadian values because it leads religious rights to "trump" gender rights.  He points to gender segregation in publicly-funded swimming pools, which "are likely to engender feelings of inferiority in girls", and that it leads to a feeling among young men that it is natural and desirable that they seek and obtain gender-segregated environments.

The result, Professor Grayson argues, is that "the rights of female students are suffering from religious compromise at all levels of education."

Religious Rights Do Not "Trump" Gender Rights

The claim that there's a hierarchy is false.  There's really no cogent line of reasoning to suggest that excusing this student from a group assignment would have resulted in unfairness to the girls in the class, or elsewhere, directly or indirectly.  So there's no interest competing or conflicting with this student's religious rights.

The request to work alone isn't even inherently demeaning to women.  (Indeed, gender segregation isn't inherently demeaning to women in general, as it becomes a reciprocal obligation on both men and women.  It's the reasons for gender segregation that can, in some faiths, be demeaning to women.  But that reason is very distant from this request itself, which isn't even for such segregation.)

Most of the outrage is based on 'slippery slope' positions or broader and unsubstantiated extrapolations - if we accommodate this request, where does it stop?  Should we start requiring female students to cover their faces?  Create gender-segregated classes?  Keep women off campus?  Will this accommodation lead to restrictions on personal liberty, to people in public places being required to change their behaviour to conform with the religious values of others?

Those are absurd suggestions, and do not in any way flow from the Code principles leading to the conclusion that this student needs to be accommodated.  There's no slippery slope here; there are pretty clear legal doctrines delineating where the obligation to accommodate stops.  This case is on one side of the line; those other extreme cases are easily on the other side.  In other words, they are not appropriate analogies to use to illustrate wrongness of this result.

What the Professor takes issue with is the pervasiveness of the value system, the notion that gender segregation is an acceptable way to live one's life, because the fact that people live in accordance with that belief system marginalizes women.

Indeed, there is very little doubt that many religious and cultural practices - across a fairly wide range of groups - marginalize women.  But it is absolutely not the case that the Code protects that marginalization, (except in very specific contexts, such as the Catholic Church refusing to ordain women).  A man cannot justify an assault against a woman on the basis of religious beliefs.  Outside of certain religious institutions, an employer cannot justify refusing to hire or promote women on religious grounds.  A service provider generally cannot refuse to serve women, or serve women differently, for religious reasons.  The Code quite expressly prohibits all of these things, and is actually an extremely important statute for gender equality.

Ultimately, I don't think I'm misstating Professor Grayson's position if I say that he believes that gender segregation is socially unhealthy, and therefore a religious desire to avoid working with female peers should not be accommodated, regardless of the nature of the specific accommodation sought.

Which doesn't seem unreasonable when framed that way.  But the problem is in its implications:  It requires us to evaluate the merits of religious belief systems, and to decide which religious beliefs are entitled to accommodation and which ones aren't.

I'm going to state the obvious and say that that's a huge problem.  Freedom of conscience is at the core of Canadian values, that people can subscribe to whatever crazy religious beliefs they want.  If we start requiring religious beliefs to conform to other Charter values in order to entitle their adherents to freedom from discrimination, then a lot of religions are in trouble.  And so is our religious freedom altogether - it's not really freedom if you're told "You can believe in whatever religion you want, without discrimination, so long as it's one of our approved belief systems."

Objectionable Religious Beliefs are Everywhere

Consider the Catholic Church, the single largest religious denomination in Ontario.  (Approximately 70% of Ontario is Christian, and nearly half of those Christians are Catholics.)  The Church doesn't exactly have clean hands from a 'gender equality' point of view.  They have a number of doctrines which directly conflict with women's rights under the Charter (consider their stances on abortion and contraceptives), but the most obvious and most controversial is their refusal to ordain women as priests (and, by extension, as bishops, cardinals, and pope).  The senior ranks of the church are all entirely reserved for men.

There's a fair bit of controversy on the topic, but the Church has been very clear dealing with dissidents:  If you think that women should be eligible for ordination, you are a heretic, and can be excommunicated.

There are a number of canonical justifications for the exclusion of women from ordination, but at its core, all such justifications imply that women are further-removed from the divine than are men.  The underlying rationale is highly demeaning to women, the result is highly discriminatory against's really quite an appalling reality.  It's legal, because the church itself is subject to an exemption from the Code.

But does this delegitimize the Catholic faith?  Does this cast a shadow on Catholics seeking accommodation, that accommodating them somehow means that society therefore shares their apathy toward women's rights?  If a Catholic requires permission to not work Sunday morning to be able to attend church, does it make sense that the employer might say, "Until the Church starts ordaining women, accommodating your need to attend service would be an endorsement of their discriminatory hiring practices, and therefore we're not going to do it"?

Any denomination that regards Leviticus as binding authority is abhorrent, from a Charter perspective.  Many religious groups of all stripes staunchly oppose gay marriage.  Most religions categorically prohibit one thing or another that the Charter categorically protects.

It would be highly inappropriate for us to start evaluating whether or not religious beliefs, themselves, are consistent with other Charter principles.  If we did so, it would completely undermine religious liberty in Canada.  And, frankly, I don't know a single religious denomination that could hold its own laws up to Charter scrutiny.

The Limits of Religious Freedom

Ultimately, here's my point:  People are entitled to believe, without discrimination, in whatever incarnation of the divine they so choose.  Those beliefs may seem offensive, discriminatory, or downright wacky (and, frankly, many of them do, looked at in the right light), but people are entitled to believe.  And that is as it should be, in a free and democratic society.

There are limits of religious freedom.  My religious freedom does not, for example, give me the right to force my religious laws upon you.  I can't compel you to abstain from what my holy book calls a moral crime.  I can't murder my daughter for her immoral actions, even if my religious beliefs say I'm obligated to do so.  I can't expect to be able to carry a ceremonial religious weapon on an aircraft.  I can't expect to be able to wear religious headdress on a construction site, unless that headdress is compatible with a hard hat as well.  These are all limits on what I can do or expect others to do, on the basis of my religious beliefs.  And those limits are defined by the reasonableness of the accommodation sought, not by the reasonableness of the religious belief itself.

These limits, which already exist in the law, are what make the Code's result in this case palatable.  Because this case is the exception, marked by the exceptionally marginal nature of the accommodation sought, and because in all of the 'harder' cases we might look at, it's much easier to find 'undue hardship'.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer. 

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