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What Does Being Gay Have To Do With It?: A Feminist Analysis of the Jubran Case

NCJ Number
Canadian Journal of Criminology and Criminal Justice Volume: 49 Issue: 5 Dated: December 2007 Pages: 561-585
Tia Dafnos
Date Published
December 2007
25 pages
Using a critical feminist analysis, this paper analyzes the decisions and opinions of the British Columbia Human Rights Tribunal (Canada), Superior Court, and Court of Appeal regarding a case of school-based homophobic harassment.
Although not having identified himself as being gay, Azmi Jubran was subject to homophobic harassment by classmates throughout his high-school years (grades 8-12). In 1996, he filed a human rights complaint against the Vancouver School Board alleging discrimination on the ground of sexual orientation. This was the first case in Canada to address the issue of school liability of peer-to-peer harassment. The Jubran case produced new jurisprudence in two areas of discrimination law. The decision of the British Columbia Court of Appeal indicates that the actual sexual orientation of a complainant is irrelevant to claims of discrimination on that ground. The sexually oriented content of the harassment and the harms caused to the target of the harassment are the relevant factors. Secondly, the cases established that school boards can be held liable for the discriminatory behavior of its students. From a feminist perspective, although the outcome of the case is positive under the Court of Appeal's decision, the process shows some of the problems with using the legal system as a means of addressing oppression in society. Although progressive feminist concepts of harm can be reconciled within the existing legal framework, the system will continue to deal with homophobia on a case-by-case basis rather than addressing it as systemic oppression, i.e., oppression rooted in societal values that establish negative stereotypes for people with actual or supposed characteristics. Schools should be proactive in addressing harmful societal values that perpetuate homophobia, rather than waiting for legal cases that require the establishment of policies and programs of redress. 8 notes and 20 references


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