By Marcus McCann
Everyone sensed that a legal challenge to the repeal of Ontario’s inclusive sex ed curriculum was inevitable. This was in the summer of 2018.
Doug Ford and the Progressive Conservatives had been elected in May. Mr. Ford then embarked on a number of controversial changes which ended up in court, including changing the size of Toronto City Council and cancelling certain green tax credits. Ford mused publicly about insulating his decisions from review by using the notwithstanding clause.
In other words, the political climate was already heated when the Ontario government announced the repeal of the 2015 Grades K-8 curriculum and replaced it — at least temporarily — with an older curriculum that ignored the lives of lesbian, gay, bisexual, trans, and queer (LGBTQ) students. The older curriculum had been drafted in 1998, before same-sex marriage was legalized, and long before gender identity and gender expression were added to the Human Rights Code.
But who was the best party to challenge the change?
The repeal (and the associated rhetoric of protecting children from liberal ideology) caused spasms of worry in LGBTQ circles, and especially among parents of queer, trans or otherwise gender diverse young people.
Lawyer Mika Imai and I fielded calls in the early days with parents who were petrified to send their children back to school in September. Ultimately, an informal support group of parents of trans and gender diverse children reached out to us, and Ms. Imai and I began to plan a legal challenge in earnest.
When we were ultimately retained, it was by an 11-year-old trans girl and her mother, who we had met through that support group. Ms. Imai ad I filed an Application on her behalf at the Human Rights Tribunal in August of 2018.
A.B. (her real name is protected by a publication ban and a partial sealing order) was an incredibly wise client. She was the expert in her own story. And that story, as it turned out, set the course of our litigation.
In the fall of 2018, A.B. was going into Grade 6, which was important: there was material about gender identity in the Grade 6 curriculum, and it was being replaced with a curriculum with zero mention of gender identity.
A.B. was able to recount to us, and later recounted during her testimony, her story. No one told her that trans people existed until she was nine. At that point, she immediately recognized herself in the term. Her school’s inclusive policies could only take her so far, and she was bullied both before and after her transition.
A.B.’s testimony was sassy, charming and ultimately very moving. Here is an example from our discussion of the period before she transitioned, when she was presenting in a more gender fluid way.
Me: How did your classmates react to you wearing your glittery hoodie, for example?
A.B.: Well, some of them would ask me why I am wearing it and they would say that is a girl thing.
Me: And how would you respond?
A.B.: I would say, Are you just jealous because I look fabulous?
A.B.’s testimony left no doubt about the necessity of a comprehensive, detailed, and inclusive sexual education. As she told us, people are afraid of what they don’t understand. A.B. and her classmates needed to learn about gender identity and gender expression, and without that, she was at a disadvantage compared to her peers.
Not that we didn’t also rely on experts — over the course of 10 hearing days, there were 11 witnesses called. The trial concluded in February of 2019.
Our case was ultimately derailed by a parallel proceeding, a judicial review application filed by the Canadian Civil Liberties Association after we announced the challenge in AB. Their judicial review challenged the sex ed repeal on a number of grounds, including on the basis that it was discriminatory toward trans students. The CCLA application was filed on the basis of a single affidavit, sworn by an LGBTQ parent. The CCLA filed its challenge without identifying a trans student as its client, and without any evidence from trans students.
A second judicial review was filed in September of 2018 and joined to the CCLA Application. This one was by the Elementary Teachers Federation of Ontario. The ETFO Application was by far the better papered — more than a dozen affiants and many volumes of material. Those two cases were joined, and by nature of the sheer size of the record, the ETFO case took centre stage in the judicial review.
ETFO’s main concern was that the repeal of the curriculum (combined with the government’s public statements and the introduction of a “snitch line” to report teachers) had created a chill on their ability to freely express themselves in the classroom. ETFO’s secondary arguments, including that the decision was discriminatory toward students, flowed from this chill.
Ultimately, the Divisional Court found that teachers were still permitted to teach about important sexual health issues if they felt they should. There was therefore no chill, and their case was dismissed.
The CCLA and ETFO decision was no answer to AB — the evidence in AB made it clear that students across the province need a curriculum that includes mandatory content on LGBTQ topics. But a two-person panel of the Human Rights Tribunal found that it was bound by the result of the judicial review and dismissed A.B.’s case.
The case nonetheless offers some important lessons. Chief among them: the importance of clients, evidence, and witnesses who can provide a direct, personal story. Neither the CCLA nor the ETFO application contained a single affidavit from a young person in Grades K-8. A.B.’s story, which was so important to the Tribunal case, was missing.
No one can say if the Tribunal would have ultimately sided with A.B., had it not been for the CCLA and ETFO decision. I like to think it would have. At the end of the day, the decision in the judicial review was — if I can use this term — decidedly bloodless. And that could certainly have been avoided if young people’s voices were part of that record.
Marcus McCann is a lawyer in private practice at Symes Street & Millard in Toronto, Ontario. He practices in the areas of employment, human rights, and not-for-profit governance.