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Article Excerpt
Introduction
When a student calls another student a "homo," is it schoolyard name-calling or homophobic harassment? This kind of behaviour is common in the school experiences of many young people and if overheard, a teacher might simply reprimand the offending student. Although pervasive, homophobic taunting is rarely dealt with by school authorities as seriously as derogatory behaviour towards other aspects of identity like race, ethnicity, or religion. Just replace "homo" with an offensive term along these lines and imagine the reaction. Azmi Jubran was subjected to homophobic harassment throughout high school even after reporting it to school officials. In 1996, he filed a human rights complaint against the school board alleging discrimination on the grounds of sexual orientation.
The Jubran case is the first in Canada to deal with the issue of school responsibility for peer-to-peer harassment. In addition, and importantly, it makes a significant contribution to the jurisprudence in the realm of sexual orientation harassment and discrimination. The legal literature tends to highlight the significance of this case for being the first to deal with the liability issue. In contrast, there has not been as much analysis focussing on how the courts in this case deal with the sexual orientation of the complainant or the harm of homophobia. This is significant because their decisions both reflect and have the ability to reinforce homophobic beliefs in society. The first part of this paper summarizes the case and its progression through the legal system, and discusses the legal framework for establishing discrimination. A detailed feminist analysis of the decisions follows, focussing on the relevance of sexual orientation identity in the case. The third part of the paper looks critically at how harm--a key element in harassment and discrimination cases--was addressed, including the courts' use of various incarnations of the "reasonable person" test. Three different feminist conceptions of harm that may address the issue of homophobia more appropriately are examined. Finally, the implications of the Jubran decision on the issue of school liability for student behaviour are briefly discussed. While some of the decisions reflect a potentially progressive way of using the human rights mechanism to deal with homophobia, the case also illustrates the problems with using the legal system as a mechanism towards eliminating oppression and achieving social equality.
The Jubran case
Azmi Jubran endured bullying and name-calling by other students throughout his high school experience at Handsworth Secondary School in Vancouver, British Columbia. It began in grade eight and continued until he graduated from grade 12. The majority of the harassment involved homophobic epithets--he was called "homo," "faggot," and "gay," among other things. Physical harassment sometimes accompanied the epithets as he was pushed, shoved, spit on, and had things thrown at him. These incidents happened in the schoolyard, hallways, and in classrooms when teachers were not present (Jubran v. Board of Trustees at para. 8-75). In 1996, when he was in grade 10, Jubran filed a complaint with the British Columbia Human Rights Commission against the Vancouver School Board. His claim alleged that the School Board had violated the British Columbia Human Rights Code (BCHRC) (1996) by discriminating against him on the grounds of sexual orientation. Section 8(b) of the BCHRC prohibits the denial of, or discrimination 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 or sexual orientation of that person or class of persons.
Jubran argued that the school had failed to provide him with an environment free from discrimination because the harassment continued even after he reported incidents making school authorities aware of the situation. In response, the School Board argued that it could not be held responsible for failing to eliminate such behaviour among students, and that the Tribunal did not have the power to make judgements about how suitable the efforts of the school were (Jubran v. Board of Trustees at para. 5). The Tribunal decided that the School Board was responsible for student behaviour that violated the BCHRC and awarded Jubran $4,000 in compensation. The School Board appealed the decision and the British Columbia Superior Court overturned the Tribunal's ruling. The case then went to the B.C. Court of Appeal, which struck down the lower court's ruling and reinstated that of the Tribunal. In October 2005, the Supreme Court of Canada refused leave to appeal to the School Board. The decision of the B.C. Court of Appeal thus stands as the final one in this case. The three decisions dealt with two key legal issues:
1. What constitutes discrimination based on sexual orientation? Specifically, did Jubran experience discrimination on these grounds?
2. Can a School Board be held responsible for the conduct of students that contravenes human rights legislation?
The question of whether the harassment Jubran faced constituted discrimination was pivotal in this case, as it formed the basis for the Court of Appeal's decision to overturn the lower court. If the conduct is not considered discrimination, the question of the School Board's responsibility becomes irrelevant. What became a central point of contention was that Jubran did not self-identify as homosexual. Additionally, his peers claimed that they did not perceive him as such. This issue of the relevance of sexual orientation identity will form the bulk of the analysis that follows because of its importance as a threshold leading to the second legal issue of school liability.
Legal framework for discrimination
As responsibility for education falls under provincial jurisdiction, schools are governed by provincial human rights legislation, that is, human rights codes. The first element to establish in the case was whether the behaviour of the other students constituted harassment. Richard (1996) defines harassment as unwanted or unwelcome behaviour that makes one feel unsafe or uncomfortable. Because the term "harassment" is not defined in the BCHRC, the Tribunal looked to other provincial codes for guidance. Like Richard's definition, the codes generally include concepts of "unwelcome" abusive conduct or comments, and the idea that it occurs over a period of time. (1) After hearing evidence about the nature of the conduct that occurred throughout his high school years, the Tribunal decided that Jubran was subjected to behaviour that constituted harassment based on sexual orientation (Jubran v. Board of Trustees at para. 101).
Although sexual orientation is a prohibited ground under the BCHRC, it does not have the same status as sexual harassment in establishing prima facie discrimination. Prohibition against sexual harassment often has special legislative status in human rights codes and workplace policies. Further, it was established through Janzen v. Platy Enterprises Ltd. that sexual harassment constituted prima facie discrimination. However, harassment on other grounds, such as sexual orientation, does not automatically form the proof of the occurrence of discrimination. Jubran had to show that the harassment he experienced led to differential treatment based on sexual orientation. In human rights law, the emphasis is on the effect of discriminatory behaviour, not the intent or motive of the harasser/discriminator (Ontario Human Rights Commission v. Simpsons-Sears). This evolves from the purpose of human rights legislation to ameliorate discriminatory conditions rather than to assign blame and administer punishment. This was the reasoning behind the Tribunal and Court of Appeal decisions that Jubran's sexuality was irrelevant, as was whether or not the harassing students perceived Jubran as homosexual. This issue, however, was at the centre of the Superior Court's decision to overturn the Tribunal. It also formed the basis for the separate opinion of one of the Court of Appeal judges. In the following sections, the interlinked issues regarding the relevance of Jubran's sexuality and the harm caused by the homophobic harassment will be examined. The decisions of the Tribunal and courts on these issues will be analysed from a critical feminist perspective. As there is no one feminist perspective, the critique will attempt to acknowledge various approaches.
The relevance of sexual orientation identity...
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