Published October 26, 2007
The Globe and Mail
444 Front Street West,
Toronto, Ontario, M5V 2S9
Opinion Editorial by
Barbara Hall, B.A, LL.B, Ph.D (hon.)
Ontario Human Rights Commission
The values embodied in human rights laws hold a special place in the minds of Canadians. Canadians believe that tolerance, mutual respect, and diversity are fundamental to the nature and success of this country. Looking at some of the recent debate in Ontario around religious school funding, and the ongoing consultation in Quebec on reasonable accommodation, I believe that this is a time to remember and promote those values. It is certainly not time to turn away from them.
There has been recurring public discussion about the relationship between human rights and religious faith. Many religions include detailed codes of conduct prescribing what followers can eat and wear, for example. In an ever more diverse society, we will inevitably face challenging questions. What is the role of religion in the public sphere? Are there limits to accommodation? And how can we reconcile the sometimes competing demands of various groups?
Sadly, I believe that some of the recent public discussion has been motivated by stereotypes, discriminatory attitudes, and fear of the unknown. Prejudices and stereotypes should never be the basis for making fundamental changes to human rights laws. There are real and legitimate issues at stake here, but we must remember that it is dangerous to react in haste on the basis of fear and anger. It is sobering to remember that the wartime internment of Japanese Canadians and the establishment of residential schools for native Canadians were perceived as necessary actions in their time.
In seeking solutions, it is important to remember on the one hand, the real, serious and ongoing oppression and marginalization that women and members of the LGBT community have experienced. There are deeply felt concerns that hard-won advances towards equality could be reversed, and that discrimination against these groups could be legitimized. It is equally important, on the other hand, to recognize the very difficult experiences of many faith-based communities in Canada, and particularly those of the Muslim community, which in the wake of 9/11 has suffered from high levels of open and covert hatred, fear, and discrimination. Human rights laws exist to protect us all equally from discrimination on the basis of sex, sexual orientation, creed, race, and other grounds, and these protections remain vital.
Some have suggested that the tension between religious rights and other rights can be resolved by creating a formal, legal hierarchy of rights, with religious rights subordinated to the rights of others. This would be a mistake. I think a better approach is to recognize that all rights are equally important, and a balancing of rights may be necessary in some circumstances. To adopt a hierarchy of rights would certainly be a radical departure from fundamental international human rights principles, which have recognized individual rights as indivisible and interdependent.
Treating everyone the same does not necessarily result in equal treatment. For example, rules prohibiting religious headwear in the service of promoting gender equality could permit employers and service providers to deny opportunities to Muslim women, hardly an advance for gender equality.
Human rights laws already provide well-established balancing mechanisms for those relatively rare occasions where rights are in conflict. For example, while some may be offended by the sight of a mother breastfeeding her baby in public, or two men kissing – or a religious person wearing a turban, kippah or hijab – it is not an excuse for discrimination. Such attitudes are not a valid reason for refusing to serve or employ a person, or refusing to share public space. We are all expected – and required - to tolerate our differences, even if not all of us embrace them.
Similarly, there are already human rights principles that provide workable and reasonable limits to accommodation. For example, accommodation will not be required where it will create an excessive risk to health and safety. For this reason, the Supreme Court of Canada refused to make an exception to hard-hat requirements for construction workers for a Sikh whose faith required him to wear a turban. On the other hand, mere uniformity of appearance will not be a sufficient reason for refusing to accommodate religious headwear, and for many years the RCMP have permitted Sikh members to wear their turbans as part of their uniform.
Some compromise may be necessary from all involved. In the outcome of the debate over same-sex marriage, religious persons are able to maintain their faith requirements for their own ceremonies, but gays and lesbians have full access to civil marriage procedures.
What’s required is not radical, unilateral solutions, but a process of respectful and thoughtful dialogue, based on the fundamental principles of human rights. We all, including human rights advocates, must do a better job of promoting and educating about human rights and responsibilities. We must respond proactively when individual and systemic discrimination occurs. Since 1948, the Universal Declaration of Human Rights has envisioned a society based on understanding and mutual respect for the dignity and worth of each person, so that each person feels a part of the community and able to contribute fully to the development and well-being of the community. There is still a long journey before we reach that destination, but we need to travel the road together.