In 2001, Christopher Kempling, a teacher and school counsellor in Quesnel, British Columbia, was cited for professional misconduct arising out of a series of letters and articles that he wrote to his local newspaper. In 2002, a hearing panel of the Disciplinary Committee of the British Columbia College of Teachers (BCCT) heard this citation of unprofessional conduct. The panel found that Kempling’s writings, which were published between 1997 and 2000, “associated homosexuals with immorality, abnormality, perversion and promiscuity (para 3).” For example, Kempling wrote:
Gay people are seriously at risk, not because of homosexual attitudes, but because of their sexual behaviour, and I challenge the gay community to show some real evidence that they are trying to protect their own community members by making an attempt to promote monogamous, long lasting relationships and to combat sexual addictions (para 34). Sexual orientation can be changed and the success rate for those who seek help is high. My hope is that students who are confused over their sexual orientation will come to see me. It could save their life. I refuse to be a false teacher saying that promiscuity is acceptable, perversion is normal and immorality is simply ‘cultural diversity’ of which we should be proud. (para 44)
The panel determined Kempling’s writings to be discriminatory, and he was found guilty of conduct unbecoming a member of the BCCT. The Panel recommended that Kempling’s teaching certificate be suspended for one month. In 2003, BCCT’s executive council adopted the panel’s recommendation. Kempling appealed these decisions to the Supreme Court of British Columbia, contending procedural unfairness and infringement of his rights under the Canadian Charter of Rights and Freedoms. Kempling claimed his constitutional rights to freedom of expression, conscience and religion had been violated by the BCCT suspension.
In 2004, the appeal was heard and dismissed by the Supreme Court of British Columbia. Kempling then appealed to the B.C. Court of Appeal, claiming that a wrong standard of review had been used in the Supreme Court’s judgment, and that, given his record of long-standing community service and an unblemished teaching career as a teacher and counsellor, the BCCT was wrong to suspend his teaching certificate.
The appeal hearing took place on April 21 and 22, 2005, with intervener status granted to the B.C. Civil Liberties Association, British Columbia Teachers’ Federation, Canadian Religious Freedom Alliance and B.C. Public School Employer’s Association. During the hearing, the Court considered two important questions to determine whether Kempling was guilty of conduct unbecoming a member of BCCT. First, the court explored the extent to which his published writings could be considered discriminatory, and second, they determined the degree to which these public statements caused harm. In its ruling on June 13, 2005, the Court of Appeal stated: “A central tenet of democratic society is the belief that all people are equally deserving of respect, concern and consideration, and this belief flows from a recognition that each individual is inherently valuable” (para 33). The Court found that Kempling’s written statements were based on prejudicial and stereotypical assumptions and concluded that the fact that “Mr. Kempling’s writings were discriminatory is unassailable” (para 35). In relation to the nature of the harm that Kempling’s writings produced, the Court of Appeal reaffirmed the B.C. Supreme Court’s decision and quoted Justice Holmes’s ruling:
By publicly linking his private, discriminatory views of homosexuality with his status and professional judgment as a teacher and secondary school counsellor, the appellant called into question his own preparedness to be impartial in the fulfillment of his professional and legal obligations to all students, as well as the impartiality of the school system. That in itself is a harmful impact on the school system as a non-discriminatory entity. (para 37)
Mr. Justice Lowry found that it was reasonable to conclude that Kempling’s conduct could result in
1) a loss of public confidence in Mr. Kempling and the public school system; 2) a loss of respect by the students for Mr. Kempling and for other teachers generally; 3) controversy within the school system that would disrupt its proper functioning; and 4) a reluctance on the part of homosexual students to approach Mr. Kempling for counselling, thereby diminishing his ability to carry out his professional duties. (para 38)
Drawing on the legal approach taken by the Supreme Court of Canada in Ross (1996) and applied in Trinity Western University (2001), the Court reaffirmed that “a teacher can be sanctioned for off-duty conduct if that conduct is likely to produce a ‘poisoned’ school environment.” (para 39)
While the freedom to hold discriminatory beliefs is broad, the freedom to act upon them is limited. It has been clearly established by our courts that a teacher in the public school system who engages in discriminatory conduct (whether it occurs on or off duty) can be subject to disciplinary proceedings. Harm does not have to be directed to a particular student, colleague or parent; rather, the teacher’s actions may be deemed to have negatively affected the integrity of the school system as a whole. “Non-discrimination is a core value of the public education system; the integrity of that system is dependent upon teachers upholding that value by ensuring the school environment is accepting of all students.” (para 43) Kempling failed to uphold this paramount value and was negligent in his professional responsibilities to create and foster a non-discriminatory educational environment. Kempling “undermined the core value of non-discrimination by denying homosexual students an education environment accepting of them.” (para 45)
The Court of Appeal held that the BCCT’s one-month suspension of Kempling’s teaching certificate was indeed a violation of his section 2(b) freedom of expression charter rights. However, this violation was found to be a reasonable limitation and saved under section 1 of the charter. In the original decision of the B.C. Supreme Court, Mr. Justice Holmes stated, “It was entirely appropriate that the teaching profession, like any profession, be held to more stringent standards of conduct than the lay public.” (para 64) On appeal, Mr. Justice Lowry reaffirmed these standards and found that “Mr. Kempling’s writings at times clearly crossed the line of reasoned debate into discriminatory rhetoric. He ignored the inherent dignity of the individual; this concept is essential to a functioning democracy.” (para 76) Kempling’s appeal was dismissed and the suspension upheld.
Implications for Alberta’s teachers
All students, regardless of their sexual orientation and gender identity, are constitutionally entitled to a nondiscriminatory school environment. Members of the teaching profession may be charged with unprofessional conduct if their on- or off-duty conduct is found to have created (in word or deed) a poisoned educational environment.
In keeping with evolving understandings of human rights and the increasingly pluralistic nature of Canadian society, the Alberta Teachers' Association’s (ATA) Code of Professional Conduct, in 1999 and 2003, was amended to require teachers to teach in a manner that respects the dignity and rights of all persons without prejudice as to sexual orientation and gender identity. The ATA became the first teacher association in Canada to include protections for students based on gender identity. The Canadian Teachers’ Federation and many other teacher association’s across Canada also now provide similar protections.
The ATA’s position paper on Diversity, Equity and Human Rights (2003) reaffirms the Association’s belief in the inherent dignity and worth of each student and emphasizes that “schools should be inclusive learning communities” that foster a climate of respect, trust, caring, sharing and democratic responsibility. Schools that exhibit these characteristics are “places of empathy and safety in which differences are valued” as an integral part of the learning experience.
With reference to one of Kempling’s central points, that “sexual orientations can be changed and the success rate for those who seek help is high” (para 44), teachers should note that both the Canadian and American psychological associations have issued clear statements and professional guidelines denouncing the use and effectiveness of “reparative,” “conversion” or “reorientation” therapies that purport to “heal” or “cure” a person’s sexual orientation or gender identity. Research has shown that these approaches are ineffective and ignore the influence of social stigma on mental health, and in many cases can be extremely dangerous and a form of professional malpractice.
Information and resources
For information on professional care and counselling issues for lesbian, gay, bisexual, trans-identified and queer (LGBTQ) students, please refer to the document entitled Creating Safe, Caring and Inclusive Schools for LGBTQ Students: A Guide for Counsellors (Wells and Tsutsumi 2005), published by the Society for Safe and Caring Schools and Communities and available for download from the ATA’s Sexual Orientation and Gender Identity webpage (www.teachers.ab.ca, click on Diversity, Equity & Human Rights, under Issues in Education, and follow the links).
Kris Wells is a Killam and SSHRC doctoral scholar with the Department of Educational Policy Studies, University of Alberta.
Alberta Teachers’ Association (ATA). 2003. http://www.teachers.ab.ca/About+the+ATA/Policy+and+Position+Papers/ (accessed July 8, 2005).
British Columbia College of Teachers (BCCT) v. Trinity Western University (TWU). 2001. SCC 31. www.lexum.umontreal.ca/csc-scc/en/ (accessed July 5, 2005).
Kempling v. British Columbia College of Teachers (BCCT). 2005 BCCA 327. www.courts.gov.bc.ca/jdb-txt/ca/05/03/2005bcca0327.htm (accessed July 5, 2005).
Ross v. New Brunswick School District No. 15. 1996 1 S.C.R. 825. www.lexum.umontreal.ca/csc-scc/en/ (accessed July 5, 2005).
Wells, K., and L. M. Tsutsumi. 2005. Creating Safe and Caring Schools for Lesbian, Gay, Bisexual, and Trans-Identified Students: A Guide for Counsellors. Edmonton, Alta.: The Society for Safe and Caring Schools and Communities.