A transgendered teacher who was fired by the Greater St. Albert Catholic School board will finally get his case heard by a human rights tribunal after a five-year wait.
The Edmonton Court of Queen’s Bench ruled last week that the case of Jan Buterman – who was removed from the St. Albert Catholic board’s substitute teacher list in 2008 for being transgendered – should go before an Alberta human rights tribunal.
Although Buterman made his complaint to the Alberta Human Rights Commission in 2009, his case has been held up ever since due to legal wrangling. The commission’s director dismissed it in 2011, only to be overruled by the chief of the commission and tribunals (the director’s boss) in 2012.
In 2012, the St. Albert Catholic board asked for a judicial review of the chief’s decision.
Last week, Justice Sheila J. Greckol ruled that the chief’s decision to appoint a tribunal was reasonable and dismissed the board’s request for a review.
“Five years have passed since the school board terminated Mr. Buterman,” Greckol wrote in her ruling. “The voluminous and continued retreading of arguments at the commission, as well as this application for judicial intervention on thin grounds, has served only to delay the hearing on the merits.”
Justice delayed is justice denied, Greckol wrote, and any attempt to intentionally prevent an expeditious hearing must be discouraged.
“It is time for this complaint to proceed to tribunal for hearing on its merits.”
It’s been a frustrating wait, Buterman said, and the tribunal could very well rule against him. If it did, that would mean Canada did not really have or desire fundamental equality for all Canadians.
“That should be of concern to everybody, whether they’re trans or not,” he said.
This is one of the first cases of its kind to go before a human rights board in Canada, said Kris Wells, director of program services for the Institute for Sexual Minority Studies and Services at the University of Alberta, and it deals with a long-simmering issue: does a publicly funded Catholic school have the right to discriminate against someone based on their gender identity?
The Canadian Charter of Rights and Freedoms (and its equivalent provincial laws) bans discrimination based on sex and physical disability, but also guarantees freedom of religion.
Buterman’s complaint said that his dismissal was discrimination based on his gender and disability (he had been diagnosed with gender identity disorder, a recognized biological phenomenon).
The Catholic board argues that it fired Buterman for not embodying Catholic values (which say that a person cannot change gender), and has a constitutional right to provide religious instruction – a right that includes the right to fire teachers for religious reasons.
That’s true, Greckol found, but that right has been subject to some complex litigation and was not a “slam dunk” in this case. It was also unclear how religious conformance applied as a job requirement in this case. These factual and legal issues required “the searching inquiry of a human rights tribunal,” she wrote.
The Catholic school board is going to have to prove that Buterman’s transgender identity precludes him from being a good teacher, Wells said.
“There’s no question that their actions are discriminatory,” he said. “The question will be: is this discrimination justified under their denominational rights?”
While he would not comment specifically on Buterman’s case as it was before the courts, Catholic board superintendent David Keohane said the board would “continue to hire people who model and witness the teachings of our faith to students.”
Buterman said that all he did in 2008 was start the gender transition process by living for a year as a man – he didn’t change radically or start promoting sex changes.
“I dropped one letter out of my title,” he said, going from “Mrs.” to “Mr.”
The Alberta Human Rights Commission would now appoint a tribunal to hear Buterman’s case, said registrar Cathy Finlayson, which would likely happen in the next few months.
Buterman, who was now working on his master’s in education policy at the U of A, said the hearing will likely take weeks, and could be appealed by the Catholic board.
“It will not be completed quickly.”