As we know, since the reassignment to Chelsea of a primary school teacher who knowingly violated Law 21 prohibiting her from wearing her hijab in class, the question seems to have been resolved by her detractors even before it was asked; this law would be indefensible, odious, Islamophobic. Justin Trudeau was indignant, without bothering too much with the facts or with a spirit of finesse, that this teacher “lose her job because she was Muslim”, and it is in order to “protect racialized communities against discrimination that several cities in Canada are now funding the legal battle of opponents of the law.
Posted at 10:00 a.m.
However, religious freedom, like all the other fundamental freedoms, is not absolute, but relative, because the legislator must seek balance and reconciliation between various rights and legitimate interests, which supposes, in our pluralist democracies, a sense of dialogue and compromise. Thus, contrary to a paradoxical intransigence among some who willingly consider “open” secularism as the only legitimate one, the European countries as well as the European Court of Human Rights (ECHR) fully recognize the legitimacy of the various possible approaches with regard to the arrangement of relations between the State and religions, not only at the national level, but also within a federal framework, as in Germany, Belgium or Switzerland. With regard to educational establishments and restrictions imposed on teachers, it should be remembered that all of the cases examined by the ECHR were found to be in conformity with the European Convention. Moreover, following the example of Guy Rocher, the ECHR as well as the German and Belgian Constitutional Courts consider that the more various religious convictions and various cultural customs coexist within a society, the more the duty of religious neutrality of the State and its representatives is essential in order to promote integration and “living together” around common civic values.
So, what are the legal grounds justifying the prohibition of religious symbols for teachers? This question certainly deserves further examination, especially since the Bouchard-Taylor report evaded it and the Legault government failed to teach it, but let us nevertheless see the main arguments.1.
It is no coincidence that public schools are the place where the greatest number of European laws on secularism apply; it is the civic space par excellence. And the school is primarily at the service of the students, and not that of the teachers. Unlike the public space where contact is more occasional and limited, education is continuous and compulsory for all students, regardless of their beliefs. It is all the more important to protect these beneficiaries and respect their rights and interests, including their freedom of conscience. They cannot avoid teachers who display their religious beliefs in class. These teachers have the mission not only to instruct them and transmit knowledge, but also to evaluate them, sanction them, monitor them and, more broadly, educate them, especially when various cultural and religious conflicts arise between them. However, this mission is made possible only because the State delegates to them, as representatives held to account, the educational authority that they embody and personify in a necessarily hierarchical relationship with young children who are easily influenced.
While Gérard Bouchard called for studies, without ever worrying about setting out credible methods of execution, the ECHR and various legislations consider that, while it is difficult to accurately measure this influence of teachers on students, it is even more difficult to deny it.
Because teachers constitute, within the framework of a specific dependence, models of behavior which are exercised continuously and in various ways even when young people have not yet acquired the critical distance and the necessary autonomy.
This influence can also be perceived negatively by a pupil if the religious sign displayed by his teacher conveys sexism, homophobia, is discriminatory or prejudicial with regard to his own religion or his behavior, etc. Article 6 of Law 21 also recognizes, like the ECHR, that the religious sign is not limited to a subjective definition by the person who wears it, but that it also testifies to the objective character of a religious practice. However, if the teacher is not bound, within the framework of his function, to a duty of religious neutrality, how, in such a context of educational authority, is a fully open dialogue with his pupils conceivable on certain sensitive issues, such as equality between men and women? The ECHR therefore considers that if freedom of religion is a fundamental right, the protection of the rights of others, in this case those of pupils, is just as important, if not more so, and that the balance sought between these various rights and interest is a societal choice.
A word, finally, on a singularly peevish accusation. Is it true that Law 21 “targets” Muslim women? If, in terms of practical consequences, the prohibition of religious symbols for teachers affects those who do not want to give up the hijab, the ECHR nevertheless judges that it is not a question, in similar legislation, of a direct or indirect discrimination, because this inequality in the effects is justified having regard to the pursuit of a legitimate aim by suitable means.
* François Dugré is a witness as a parent in the Superior Court of Quebec for the right to secular public school services.