Ethics, Policy, and the Law

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This module focuses on professional ethics and conduct, educational policy, and aspects of the law that relate to K–12 education and associated contexts. This is an important aspect of teacher education as it focuses on the regulatory context for education and provides opportunities to understand the legal, ethical, and professional mandate to provide safe, inclusive, and equitable learning environments for 2SLGBTQ+ students.

What does it mean to queer courses on ethics, policy, and law?

  • Challenge normativity and address the erasure and stigmatization of 2SLGBTQ+ realities from schools. This is especially important where 2SLGBTQ+ content is lacking or absent from policy, law, or ethical/professional standards. Even in places where generic approaches are meant to protect all students, such as provisions naming human rights protections or describing broadly inclusive practices, policies and guidelines often neglect 2SLGBTQ+ realities or are silent about their explicit inclusion (e.g., Lugg & Murphy, 2014). Ensuring that discussions of ethics, policy, and law include explicit connections to 2SLGBTQ+ realities and implications of their relevance, especially where these connections are not expressly articulated, is necessary to provide teacher candidates with a clear understanding of their responsibility to practice 2SLGBTQ-expansive education and of the protections they have in doing so (e.g., Anderson, 2014).  
  • Focus on the inherent rights of 2SLGBTQ+ students. In talking about 2SLGBTQ+ realities, often discussions focus on rights and responsibilities of educators or parents/guardians. Ensure that discussions include content on the rights of 2SLGBTQ+ students, including students’ rights to attend a school free from homo/bi/transphobic harassment and to have agency in expressing and disclosing their own gender identity and/or sexual orientation to parents/guardians or members of their school community (e.g., privacy and confidentiality)—and to be supported in doing so when and how they want to (Herriot et al., 2017). This can go even further to look at the ways that 2SLGBTQ+ identities and “problems” are represented and addressed by policy in schools/districts (Campbell, 2022; Loutzenheiser, 2015; Snider, 1996).
  • Make connections across policies and legislation to include 2SLGBTQ+ realities. Regulatory frameworks for school systems are created not simply by a single piece of legislation or policy, but by the broader legal framework of legislation and policies that address educational contexts. This involves education or public schools acts and educational administrative law, but also legislation that addresses the lives of students and educators, such as teacher codes of conduct, Canadian Charter of Rights & Freedoms, human rights codes, criminal codes, divorce acts, freedom of information and privacy requirements (including Personal Health Information Act/PHIA), the Indian Act, child and family services laws, labour relations acts, accessibility legislation, and acts concerning post-secondary institutions—among others. It would also be worth introducing documents that include policy recommendations or calls to action for education, especially for Indigenous education, such as the TRC’s calls to action on education and for Indigenous self-governance and law. Demonstrating how school/district policies connect to legislation, and how various pieces of legislation work together to create the broader legal framework for education, is vital to understand the regulatory framework for 2SLGBTQ+ students beyond anti-bullying or GSA provisions.
    • While education in Canada is the responsibility of provinces and territories, the Indian Act specifies that the federal government has responsibility for education for First Nations people. However, the federal government has neglected this responsibility (Paquette & Fallon, 2008) and often downplayed or delegated others to fulfill this role (Phillips, 2011), resulting in education that is unequal, disproportionately resourced, and often perpetuates colonial practices. Understanding this history, including the legacy of residential schools and their role in imposing colonial understandings of gender/sexuality, and discussing education initiatives for Indigenous peoples, such as ongoing efforts to attain First Nations control of First Nations education, is essential to give teacher candidates a better understanding of education contexts for Indigenous students. (See also Paquette & Fallon, 2010.)
    • For example, in announcing his decision to mentor young lawyers at Cochrane Saxberg LLP (Manitoba’s largest Indigenous law firm), Senator Murray Sinclair described the need for lawyers to have a working understanding of Indigenous law and its application: “Particularly in this time when more and more Indigenous communities are beginning to exercise their sense of self-government, their sense of taking control of their lives, their sense of doing things for themselves and getting out from under the control of government—as they’re doing it, they’re doing things like asking, ‘How can we develop a law about education? How can we develop a child-welfare law that truly respects our traditions and our customs and our beliefs?’… Those questions are really interesting questions but necessary to be able to answer and young Indigenous lawyers are not any better trained at it through the law school experience than anybody else. So they’re looking for someone to help them understand that, and I thought I might be able to do that” (Sinclair quoted in Wright, 2020). We maintain this is equally important for educators and applicable to all aspects of education.  
  • Include Indigenous concepts of self-determination and self-governance in discussions of gender and sexuality. By introducing Indigenous governance and ways of knowing, particularly in talking about body sovereignty and gender self-determination and expression, teacher candidates can learn about the cultural disruption Indigenous people experienced that resulted from settler colonialism and its destructive impact on traditional conceptions of gender and sexuality (Wilson, 2015). Discuss the impact of colonization on Indigenous understandings of gender and sexuality, and include specific content that addresses the history of governmental and educational policies that enacted systematic epistemicide and cultural genocide of Indigenous peoples. 
    • Note: See the section on Two-Spirit and Indigiqueer education for possible content here. If you are non-Indigenous, be cautious about acting as an “authority” on these topics, especially if this is new content for you. Instead, consider including readings or bringing in speakers who are able to speak about traditional and cultural understandings of sexuality and gender in Indigenous communities and of Indigenous governance.

Why do we need to do this?

  • Highlight teacher candidates’ responsibility to practice 2SLGBTQ+-expansive education. In short, it is the ethical and professional responsibility of every educator to ensure that 2SLGBTQ+ students are provided with a safe, inclusive, respectful, and supportive learning environment that includes curricular content that proactively supports 2SLGBTQ+ people through accurate information and equitable inclusion in schools; and it is increasingly recognized throughout school systems that this is the case (Anderson, 2014; Taylor, 2012; see also North Vancouver School Dist. No. 44 v. Jubran [2005]). Teacher candidates need opportunities to clearly see their professional, ethical, and legal responsibility to do so—and to see why any personal, cultural, or religious reasons for not practicing 2SLGBTQ+-inclusive education are insufficient to providing safe learning environments for 2SLGBTQ+ people. This is especially important in Catholic/religious schools where official doctrine has depicted 2SLGBTQ+ identities negatively or as inherently unacceptable (e.g., Hall v Durham Catholic School Board [2002]).
  • Provide assurance of professional, ethical, and legal support. Regulatory contexts for education provide clear assurance of support for 2SLGBTQ+-expansive education that protects and supports educators. Historically, however, 2SLGBTQ+ identities and content have been neglected in schools and actively avoided in classroom discussions due to apprehensions that sexuality and gender were either irrelevant for students or too “sensitive” for classrooms, which causes educators to doubt their employment security and their school community’s support (Campbell et al., 2021). We know that silence only serves to reinforce the erasure or minimization of 2SLGBTQ+ realities and that generic approaches aren’t effective, so providing teacher candidates with a clear understanding of their professional, ethical, and legal responsibility to practice 2SLGBTQ+-expansive education is essential to shifting the conventional "wisdom" of avoiding these topics, especially in remote, rural, or religious schools (e.g., Lugg & Murphy, 2014). Making connections between educational regulatory frameworks and the implications for pedagogy, curriculum, and school environments is essential to understanding how 2SLGBTQ+-expansive practices can be implemented. This is central to understanding education as an ethical and political act. It is important to help teacher candidates understand these important requirements as they begin to shape their teaching philosophy.
  • Address regulatory realities for 2SLGBTQ+ education. As part of a comprehensive approach to supporting 2SLGBTQ+-expansive education, it is necessary for teacher candidates to understand how legislation and professional codes of conduct work together to mandate how and why they are required to engage in this equity work (e.g., Anderson, 2014). Teacher codes of conduct across Canada detail educators’ professional and ethical responsibility to support 2SLGBTQ+ students, including the clear support of teacher organizations/unions, which have shown ongoing leadership in supporting teachers who practice 2SLGBTQ+ education and increasing recognition of school districts/boards for the necessity of this work (Grace & Wells, 2016; Taylor, 2012; Taylor & Peter, 2016).
  • Understanding human rights legislation for 2SLGBTQ+ people. Teacher candidates should understand 2SLGBTQ+ rights are human rights, and anytime human rights are mentioned, 2SLGBTQ+ rights are included; 2SLGBTQ+-expansive education is a valid educational right that can effectively enact equitable protections for all students. Further, understanding that no right is absolute provides teacher candidates with an understanding that when rights come into conflict they must be reconciled. For instance, Ontario Human Rights Commission (2012) released a policy on competing rights and some of the guidelines for mediating conflicting claims, and it is worth discussing how rights are reconciled to ensure that rights for 2SLGBTQ+ people are not treated as secondary to other rights claims.
    • Note: There are limitations to rights frameworks, particularly given their basis in liberal ideology and individualistic conceptions of identity. It can be useful to consider, for instance, the impact of colonization on Indigenous rights and knowledges, and to look at some Indigenous models of collective rights and governance, to provide greater insight into how rights structure our school systems.

How do we do it?

  • Highlight 2SLGBTQ+-relevant portions of legislation. Education legislation (such as education or public schools acts and educational administration acts) address the rights and responsibilities of educators, students, administrators, and parents/guardians. While only a few education/public schools acts explicitly include 2SLGBTQ+ provisions/content in schools (e.g., Ontario, Manitoba, Alberta), other education legislation does provide implicit support for the principles of diversity, equity, and inclusion. Often, this legislation references human rights protections that explicitly include sexual orientation and gender identity as characteristics protected from harassment—and it can be worthwhile to emphasize this inclusion, and to further discuss what harassment or bullying means, how these provisions are intended to address it, and what teacher candidates’ responsibilities are in preventing it. Preventing harassment does not simply mean preventing one student from abusing another, but can encompass a wider understanding of school climate that can serve to interrupt or reinforce homo/bi/transphobic and hetero/cisnormative attitudes which are damaging to students, both 2SLGBTQ+ and non (see e.g., North Vancouver School Dist. No. 44 v. Jubran [2005] 2005 BCCA 201). Further, legislation that affects schooling goes far beyond education/public schools acts and education administration acts to include human rights codes, teacher organizations’ acts, workplace health and safety acts, criminal codes, divorce acts, and so on, and this framework of relevant legislation even extends into policy and conduct codes (at provincial, district, and individual school levels, as well as in professional organizations’ codes of conduct, teacher college’s certification standards, etc.). There is content in most (if not all) of these that provides guidance on 2SLGBTQ+ supportive schools and learning environments, whether it explicitly includes 2SLGBTQ+ rights or follows the broadly inclusive strategy of naming human rights. Discussing potential conflicts of rights in advance (e.g., religious freedom and sexual orientation) gives students an opportunity to understand that rights are balanced, and a chance to think about how legal responsibilities interact in order to respond appropriately in situations where challenges are raised (e.g., Short, 2013, discusses the Bill 18 amendment to Manitoba’s The Public Schools Act and address the public objections raised against it based on religious freedom rights). 
    • It is also useful to think about how the “public” is interpreted to include everyone, regardless of actual or perceived sexual orientation, gender identity or gender expression. For example, what does it mean to put the “public” back into public education, which also includes Catholic and private schools?
  • Discuss protections for educators who practice 2SLGBTQ+-expansive education. Include material that addresses what teacher candidates’ responsibilities are if they work in schools that are not supportive of 2SLGBTQ+-expansive education (see e.g., Chamberlain v. Surrey School District No. 36, [2002] 4 S.C.R. 710, 2002 SCC 86). There are legal precedents, legislation and policies, and codes of professional conduct in Canada that clearly support 2SLGBTQ+ people and educational practices—but some schools, institutional cultures, religious beliefs, or geographic areas may discourage or restrict 2SLGBTQ+-expansive practices through silencing or informal punitive repercussions. Address how teacher candidates can respond if they disagree with the formal or informal direction of their administration, what their rights and responsibilities are, and look at how teacher organizations or professional organizations can support them when working in schools/areas that are hostile to 2SLGBTQ+ realities. As well, it is important to talk about the protections that 2SLGBTQ+ teachers have, even when working at religious-based educational institutions (see e.g., Vriend v. Alberta [1998] 1 S.C.R. 493). For example, it will be important to discuss the risks and realities of engaging in this equity-seeking work, even when explicit policies are in place.
  • Include examples of case law that highlight 2SLGBTQ+ precedents. Jurisprudence can be especially useful in helping teacher candidates to understand how legislation is interpreted and what precedents have been observed. For instance, North Vancouver School Dist. No. 44 v. Jubran (2005) set precedence that a student who doesn’t identify as 2SLGBTQ+ can still be homophobically harassed and that the school district can be found negligent for failing to proactively provide a safe learning environment. The Hall v. Durham Catholic School Board (2002) case found in favour of Hall, who wanted to bring his boyfriend to prom in a Catholic religious school despite initial objections from his school; the Hall case can help demonstrate how competing rights are adjudicated (see e.g., Grace & Wells, 2005).
  • Discuss how law/policy can challenge social normativities that regulate 2SLGBTQ+ identities. This can take a variety of forms, but this approach considers how “conventional” attitudes can be challenged (or upheld) in legal and policy frameworks—and further, that the implementation of policy or application of law can be used as a strategy for change. For instance, a gender nonbinary student’s safety does not come after another student’s right to express anti-trans sentiments. Too often, 2SLGBTQ+ identities are treated as the “problem” in policy and in instances of homophobic or transphobic bullying, harassment, or discrimination (Loutzenheiser, 2015). 2SLGBTQ+ identities should never be treated as the problem in these situations and discipline/policy should never be used as a way to moderate, limit, or “tone down” 2SLGBTQ+ identities (Orr & Komosa-Hawkins, 2013). Rather, instances of homophobic or transphobic conflict should be addressed as instances where stigmatization historically marginalized 2SLGBTQ+ identities, and these oppressive normativities need to be addressed and corrected (e.g., Herriot et al., 2017, discuss parental objections to trans-inclusive policy revision, which are largely situated in transphobic and normative conceptions of gender).
  • Address professional responsibilities, codes of conduct, and ethical principles. Treat professional and ethical responsibilities for educators, as well as professional codes of conduct, as necessary aspects of law and policy frameworks. Understanding their professional and ethical responsibilities to providing safe and respectful learning environments for students, including 2SLGBTQ+ students, is essential for teacher candidates to perform their jobs. Working in examples of codes of conduct that address 2SLGBTQ+ identities and ensuring that professional/ethical responsibilities are clearly linked to practicing 2SLGBTQ+-expansive education ensures that teacher candidates have a clear understanding of the importance of 2SLGBTQ+ representation in the curriculum, as well as giving preservice teachers an opportunity to examine their own attitudes toward 2SLGBTQ+ people (see e.g., Wells, 2019). Developing an understanding of professional ethical responsibilities is also key, giving students the chance to link to or reconcile these responsibilities with their own personal ethical commitments; this reinforces professional development by reinforcing self-reflexive practice and informing ethical sensibilities for the teaching profession, especially by linking these professional/ethical responsibilities to legislation and policy. (This may be additionally important for individuals who may have personal moral or religious misgivings about 2SLGBTQ+ identities; these individuals will still have an obligation to 2SLGBTQ+ students and it is important they be given an opportunity to develop a better understanding of what is expected of them and a chance to think through where their ethical responsibilities lie—as well as some strategies about how to reconcile those if/as needed.) (See e.g., Jacob, 2013.)
    • Look at the broader regulatory contexts and encourage teacher candidates to reflect on funding models and corporate interlocks. For example, SOGI123 has been very successful in implementing policy change and curriculum in school districts with a unique methodology that advocates for change throughout school systems. However, it is also worth noting that this organization has been largely funded through the donation of private money from mining and extraction; this is not to discount the work, as it has been very effective at creating system change in schools and effectively supports 2SLGBTQ+ students in schools. But we note this because there is a demonstrated link between extractive practices and violence against the safety and health of Indigenous women and youth (see Women’s Earth Alliance and Native Youth Sexual Health Network’s report Violence on our land, violence on our bodies: Building an Indigenous Response to Environmental Violence, 2016) and in considering land stewardship and ecological responsibility. Considering how funding models shape education, including how universities and faculties of education receive funding from oil and gas industries, is an important regulatory context for education that bears ethical consideration. 
  • Include local/regional policy for 2SLGBTQ protections. Policy is an integral part of the regulatory system in schools, and teacher candidates should be provided with context about how district/board or provincial/territorial policies can be read, understood, and implemented. Several provinces, such as BC, worked to implement 2SLGBTQ+ inclusions and supports through the introduction of district policy rather than rely on (pending) legislation. Further, policy can detail in a more directed and immediate way how to support 2SLGBTQ-expansive education (e.g., see SOGI 123 initiative for their three-pronged approach). Knowing how local district/regional policy supports 2SLGBTQ+ students and practices is an essential first step in empowering teacher candidates before they step into the classroom (Mayo, 2014). Provide students with opportunities to research their own division/district, region, or province/territory policies and legislation to prepare educators to access and understand regulatory information and institutional standards. Additionally, where 2SLGBTQ+ content is missing or unaddressed, it is worth talking with students about how to interpret policy/legislation accurately (i.e., in ways that follow the intention of the law/policy while protecting themselves), how to locate 2SLGBTQ+ content/identities in policy and legislation (when it is explicitly absent but implicit), and how to advocate for explicit 2SLGBTQ+ inclusion in policy and practice. 

Teaching Activities

Applying ethical principles to regulatory contexts and lesson planning for 2SLGBTQ-expansive education. 

  • Using the example of Jacob (2013), which focuses on professional/ethical principles for teaching and legal contexts in the United States, have teacher candidates identify professional/ethical responsibilities as identified in legislation and policy documents for your region or for a local district (e.g., at a nearby district, where they are doing their practicum, or where they plan to work). Have students identify ethical principles that oblige educators to support 2SLGBTQ+ students in various ways (e.g., through anti-oppressive education, through anti-harassment measures, etc.), and have them develop lesson plans using official curriculum or classroom management interventions to meet their responsibilities to 2SLGBTQ+ students. Examples could include case studies and role play activities.
  • Ensure that students identify legal/policy shortcomings as well. For example: Are policies only directed at anti-homophobia interventions? Do policies address Two-Spirit/Indigenous queer identities? Trans or non-binary identities? Do they acknowledge intersectionality and multiply marginalized identities? Is anti-oppressive education included (e.g., practices or approaches that usefully address social/cultural normativities, issues of systemic homophobia/transphobia, racism)? Do policies provide clear support for engaging in 2SLGBTQ+-expansive practices or do they limit teachers’ ability to provide curricular support? Are ethical principles adequately supported by existing legislation or policy? Is the right to privacy and confidentiality for 2SLGBTQ+ students maintained, for example, when participating in gender-sexuality alliances (GSAs)? Do students have the legal right to start these groups in all schools, including faith-based schools? Do schools actively encourage 2SLGBTQ+ students to be referred to therapy groups or programs that seek to fix, cure, repair, suppress, or discourage their sexual orientation, gender identity, or gender expression? (While conversion therapy itself is banned in Canada for both adults and minors through a bill that passed with unanimous consent in December 2021, knowing about this harmful practice and its long, entrenched history may be important for educators to understand the damaging practices that have been condoned and employed in opposition to 2SLGBTQ+ people.)
  • Develop a course “wiki” page that contains the various student projects to address the application of ethical principles to regulatory contexts. Have different groups of students work on different areas (e.g., compare ethical principles between legislation, school district(s), and teacher colleges or associations/organizations; develop documents for multiple school districts; compare between provincial/territorial legislation). Have students read one another’s projects and identify differences between districts, schools, or provinces. Why might these differences exist? What does this mean for teachers in the classroom?

How have 2SLGBTQ+ rights and education developed in your province/territory.

  • Have students choose a city/district (where they want to teach or that they want to know more about) and have them develop a 2SLGBTQ+ regulatory history and timeline of that area, giving particular attention to 2SLGBTQ+ rights and education. Prompts for this assignment may include: What legislative attention has 2SLGBTQ+ inclusive education received? What is the history of that area, particularly for 2SLGBTQ+ rights? What have been the struggles, controversies, and successes regarding 2SLGBTQ+-expansive education? What organizations or individuals have worked (or continue to work) locally/regionally in 2SLGBTQ-expansive education? What local/regional resources have been developed, and have these been the result of professional or ethical mandates, policy, or legislation? Include local/regional policy for 2SLGBTQ+ protections and practices, especially those that resulted from ethical guidelines, policy, or legislation.
  • One possible variation on this project would be to identify several topics related to social topics in a single district or region—such as topics of race and racism, ableism and accessibility, Indigenous education, harassment policies—and have different students or student groups develop legal/policy histories for each. Have students present them to one another—or provide a way for them to review one another’s projects to understand the bigger regulatory context of education spaces (such as a course "wiki" described in the previous exercise)—and to see how these aspects may complement one another and/or where they might contradict or complicate one another. Discuss how these various histories interact, support, or may be reconciled. Specifically thinking of 2SLGBTQ+ education, students may look for what is included, what is missing or unaddressed, and what can be inferred through parallel policies or professional codes of conduct.

More Resources

Vanessa Tamara Russell. (2010). Queer teachers’ ethical dilemmas regarding queer youth. Teaching Education, 21(2), 143-156.  

  • Russell (2010) presents a discourse analysis of interviews with queer teachers regarding their ethical dilemmas to navigate the competing demands of supporting students and acting as a role model, while maintaining professional boundaries and confronting discourses of “queers-as-a-threat” (p. 153). Russell refers to this as the “role model–predator chasm,” where queer teachers become hyper aware of the tension between supporting queer students, being a role model, and maintaining professional boundaries; this dilemma often forces queer teachers into ethically challenging situations that are not easily resolved.

Cindy Rottman. (2006). Queering educational leadership from the inside out. International Journal of Leadership in Education, 9(1), 1–20. 

  • Rottman (2006) offers concrete recommendations for applying queer theory to educational administration, including a sustained explanation of queer theory that explicates some of the challenges that theory introduces when it comes to practical application.

References