This just in.
As someone who had been harrassed for being perceived as gay when I was in high school, I’m somewhat taken aback by the implication of this BC supreme court decision. It would appear to me that this is a highly discriminatory ruling given that the court has based its decision not on the nature of the crime but on the nature of the victim. Why should homosexual victims be favoured over those victims who are just perceived as homosexual ? How will this decision relate to bisexuals?
Let me get this straight. This guy went through
Because they thought he was gay. And supposedly the school let it happen.
Because they thought he was gay.
And now the school is let off the hook, because turns out he wasn’t really gay.
So the judge is saying that the courts can’t protect you from harassment. Unless you really are gay. And because
WTF? Who gives an aerodynamic rodent’s fundament WHAT they were harassing him for? It doesn’t matter, only the fact that the school wasn’t stopping it.
I just don’t understand this.
This is precisely the reason why most anti-discrimination laws are written now to protect against “real or perceived sexual orientation.”
The point isn’t whether he kid was gay or straight. The point is that his tormenters would willingly make a gay person suffer, and the school would willingly turn a blind eye. And that homophobia made school into a nightmare for one student. That, in my mind, is enough to award compensation.
This doesn’t make any sense. It’s ok to discriminate as long as you are discriminating based on a false assumption? That’s a nice loophole. “I discriminated against him because I thought he was Arabic, but it turns out he was really Hispanic, so I wasn’t really discriminatory at all.”
Bull. He was still discriminated against, just not for the intended reason. It’s no better.
I sincerely hope that this student at least was able to press charges against the offending students themselves and at least have them punished for harassment and assault (set his shirt on fire?), regardless of whether the school got away with being irresponsible.
Judge is whacked in the head, y’know?
Is there a chance the guy could appeal?
It sounds strange to me, too. So by the same token, then, the students could taunt someone by calling him “Jewboy, Jewboy”, but as long as he wasn’t Jewish, they wouldn’t be guilty of harassing him, or discriminating against him?
That’s weird.
I am reminded of the way, when I came in crying because someone had taunted me with something like “stupid”, my grandma would ask me, “Well–are you?”
“Am I what?”
“Stupid.”
“Um…no…”
“Well, then,” she’d say briskly, as though that proved something.
She passed away in 1991, and she didn’t have a law degree anyway, so I know she’s not sitting on the B.C. Supreme Court. 
Well, I’m not defending the judge’s decision, but look at it the other way. Say I’m a Vancouver teen that gets beat up at school for five years, and then I decide to sue the school for not stopping the kids from beating me up.
I could probably sue for negligence (i.e., allege that the school was negligent for not stopping the kids from beating me up), and if I was a member of a group protected by the discrimination statutes, I could also sue for discrimination and (here’s the kicker) receive damages under both causes of action for the separate wrongs that were inflicted upon me (being negligent and being discriminatory).
So, what’s to stop every teen from saying that the reason he or she got beat up was that the tormentors thought he or she was gay? Since “faggot” and the like are such common insults even when the insulter doesn’t really think that the insultee is a homosexual, it may not be that difficult to prove up that the tormentors thought the tormentee was gay.
We have to draw the line somewhere. We might as well use the discrimination statute to only protect the groups of people that it is meant to protect.
Well, the discrimination was still based on race, so the Arabic/Hispanic guy still has a valid discrimination claim, seems to me. I don’t think your example really touches on the same issue brought up in the OP.
Another lurking issue is how the court decided that the kid wasn’t gay in the first place. Is there some sort of gay test up in Canada that hasn’t made its way down here? Even if the kid says he isn’t gay, so what? People say they didn’t kill the dead guy all the time and we don’t believe them (heck, we sometimes don’t even believe some people when they DO claim responsibility (e.g., because the person claiming responsibility is insane or something and there’s no way they could have done it)).
But, TaxGuy, while I’m appalled by this judge’s decision (and hope that B.C. rewards him in the way he deserves for rendering it!), the point that’s been made by the “pro” party in every debate on hate crime legislation is that it **doesn’t single out gay people (or black people or Jewish people or whatever) for “special privileges” – it protects everybody equally. So if somebody incessantly calls you a “breeder” and mocks you for your “being pussy-whipped,” he’s committed a hate crime against you, insulting you for belonging to the category “heterosexuals.” Even if it happens that he’s mistaken and you’re really gay.
Where I’d draw the line is, is this person a human being? Is he/she being harassed for falling into a category which he has no control over (including exclusively in the perceptions of others)? Then he’s the victim of a hate crime.
Simple as that.
This might be nit picking but the point isn’t that his tormentors would willingly make a gay person suffer. The point is that they’d be willing to make any other human being suffer.
Marc
I used to be friends with two guys from Ashland Wi. Both were openly gay students in the same school and were friends. One of them got bullied all of the time and the other was never bullied. The one bullied sued the school, and the other went on with his life. The difference? The one who was bullied was a jerk. That doesn’t excuse it, but, according to the one who wasn’t bullied, that was the reason. It had nothing to do with him being gay, just being a jerk.
FWIW for the debate, I’m gay, but I don’t believe there should be any special protection based on sexual orientation in these types of crimes (employment/rent/loans are a different subject). The bullied should get the same recompense from anyone bullied and not just because they’re gay or not.
Taxguy, my example was to show how stupid it is to think you are not discriminating against someone if your criteria for discrimination turns out to be based on a false assumption. The student was discriminated against because (I think, if I understand the situation correctly), he was not protected from the bullies because of the assumption that he was gay. If he was perceived as heterosexual and was still bullied, the school would have taken steps to protect him. He was still descriminated against because he was treated differently than another student would have been, whether or not he is actually gay is irrelevant.
I used the race analogy because it is another example of something people can make false assumptions about that is sometimes used as a basis for discrimination. It doesn’t matter if a job applicant is Arabic or not, If I think he is, and treat him differently because of that assumption, then I am discriminating against him. In this case based on race, in the OP’s case, on sexuality.
Polycarp has explained it well (as usual).
I like your idea, Polycarp. E.g., on a personal level, no law protects nerds from ridicule.
OTOH the judge may have made the correct legal decision as the law is written.
and hope that B.C. rewards him in the way he deserves for rendering it!
Here in Canada, we don’t elect judges. I think that the Premier(about the same as a Governor) appoints them, but I’m really not sure.
Agreed. An appalling decision.
Esprix
I didn’t necessarily mean elections – certainly there’s some provision for recall of some sort, if only “good behavior” standards for appointment.
BTW, if I know anything about Canadian law (which is not one of my strong points), it’s probably the case that the Lieutenant Governor (representing the Queen, the provincial equivalent of the Governor General) appoints judges, though normally on the nomination of the Premier. (A distinction without a difference, I realize, but just to keep our nits neatly picked. :))
To follow the sidebar, since the judge is on the Supreme Court of British Columbia, he would have been appointed by the Governor General of Canada, on the advice of the federal Cabinet (the same process Polycarp outlines, just at the federal level, not the provincial.)
Section 99 of the Constitution Act, 1867, provides that any judge appointed by the federal government has tenure until age 75 “on good behaviour.” The Governor General can remove a judge but only if requested to do so by a joint address of the federal House of Commons and Senate, which in turn can only pass a joint address after an extensive review of the complaint by the Canadian Judicial Conference, composed of all the Chief Justices of the Canadian superior courts.
That removal process wouldn’t apply here, since the standard of “good behaviour” is meant to protect judges from being removed simply because one disagrees with a particular ruling. That’s what appellate courts are for, to review decisions that one of the parties disagrees with. Cause for removal would be things like dereliction of duty, improper conduct on the bench, and so on.
As for the merits of the decision, I agree that’s problematic. I’ve no doubt it will be appealed.