Transgender issues and the rights of transgendered people is a hot topic in human rights law. In January of 2014, Alberta’s Court of Queen’s Bench said it was time for a Commission to hear the long-standing discrimination complaint filed by a transgender teacher who was fired from the Greater St. Albert Catholic Regional Division No.29. The latest step in this long battle is the Human Rights Tribunal of Alberta recent decision on a preliminary matter for the discrimination complaint. The Tribunal decided to remain seized of the matter pending the outcome of a settlement agreement and to permit the Tribunal to address any further issues that may arise in the execution of the settlement agreement. However, the Tribunal did note that if a settlement agreement is unable to be completed between the two parties, the hearing of the discrimination complaint is scheduled for December 3 2014.
Facts and Discrimination Complaint
After being removed from the Greater St. Albert School Division’s teacher list in 2008, Jan Buterman filed a complaint with the Alberta Human Rights Commission in October 2009. Buterman alleges that the School Board’s decision to remove him from the substitute teacher list and from consideration for a permanent position with the School Board was discriminatory in the area of employment practices on the grounds of gender, mental, and physical disability. Buterman states that when he informed the School Board about his diagnosis of gender identity disorder and intended to undergo hormone therapy and sexual reassignment surgery, the School Board terminated his employment. The School Board argues that it requires teachers to act as models and witnesses of Catholic teachings. Gender reassignment, according to the School Board, is inconsistent with the teachings of the Catholic Church and its core beliefs.
There is a lot riding on the outcome of this case. For individuals with unconventional gender identities, a decision against Buterman could prove to be a heart-breaking set back for recognizing their rights. On the other hand, a decision against the School Board sets a worrying precedent for individuals seeking the right to religious education. The schools worry that such a decision would force them to accommodate people whose values and behaviour differ markedly from their own in an environment that is explicitly religious. For an interesting look at the interests affected by this case, Jen Gerson provides a great article here.
The discrimination complaint filed by Buterman has had a lengthy history in Alberta courts. In May 2011, the Director of the Alberta Human Rights Commission dismissed the complaint. Buterman appealed to the Chief of the Commission who overturned the Director’s decision in July 2012 and directed that a tribunal hear the complaint. The School Board countered by filing an application for judicial review and the case remained in limbo until January 2014 when Court of Queen’s Bench Justice Sheila Greckol ruled that the case should be heard by a Tribunal.
Tribunal’s Preliminary Decision
The purpose of the decision by the Tribunal in October 2014 is to address a preliminary application raised by the School Board. The School Board argues that the Tribunal lacks jurisdiction to evaluate the merits of the discrimination complaint because the parties have already entered into a settlement agreement that specifically addresses the complaint. Buterman denies a settlement agreement has been reached, asking the Tribunal to proceed to a full hearing on the merits of the complaint.
By applying principles of contract law to previous negotiations and communication between Buterman and the School Board, the Tribunal determined that the parties did indeed enter into a settlement agreement in September 2010. The settlement remains executory and it is at the stage of the parties completing it through documentation. No findings are made by the Tribunal regarding the provisions in the settlement document as drafted by the School Board, and the Tribunal states it is for the parties to further address the documentation of the settlement as they see fit. Furthermore, the Tribunal will remain seized of the matter to permit the Tribunal to address any further issues that arise during the execution of the settlement agreement.
So what does this preliminary decision mean for the discrimination case?
The Tribunal has essentially decided to let the parties determine if they can conclude a settlement agreement which was initiated between the parties after Buterman filed the complaint. The outcome of the executory settlement agreement is left completely up to the parties, although the Tribunal may address issues arising during execution. However, this does not necessarily signal the end of the discrimination case. The Tribunal has left open the door to hear Buterman’s complaint on December 3 2014 if a settlement is not reached between the parties in the time allotted. It would thus seem that the Buterman discrimination case is not conclusively over just yet. This step in the saga may mean that the Tribunal will never hear the case. But there is still a possibility that the Tribunal will hear this lengthy case on alleged discrimination against a transgender teacher in the Greater St. Albert Catholic schools, delivering a landmark decision of great importance for many.