A civil liberties group, a teachers union and a queer mother asked a court Wednesday to shut down Ontario’s new sex-education curriculum, in a legal challenge with no direct precedent in Canada.
The Canadian Civil Liberties Association, joined by Becky McFarlane and her daughter, who is in Grade 6 in Toronto, say that Ontario’s Doug Ford government is discriminating against same-sex parents and their children by “erasing” them from a curriculum put in place last summer.
The government directed school boards in August to scrap a 2015 sex-ed curriculum for Grades 1 to 8, developed by the previous Liberal government and containing references to same-sex families, and replace it with a 1998 curriculum that did not include those references.
That directive, a CCLA lawyer said, sent a discriminatory message: “Members of the LGBTQ+ community are not entitled to equal treatment; they have been erased," Stuart Svonkin told three judges of the Ontario Divisional Court.
Under Canada’s 1982 Charter of Rights and Freedoms, courts have the power to review government policy – but rarely do they venture into policy matters such as what an appropriate sex-education program is. And the Ontario government argues that they shouldn’t, because courts lack the expertise.
Reflecting on how far courts should be prepared to go, Justice Julie Thorburn asked Mr. Svonkin whether, in effect, Canadian constitutional law requires government to improve the world. “There are all sorts of things you could teach to make the world a better place,” she said, and asked if there had ever been a Canadian case where something that wasn’t done constituted a violation of the Charter of Rights.
Mr. Svonkin said the closest case was in 1990 when the Ontario Court of Appeal, at the CCLA’s request, ruled that religious instruction favouring Christianity in a rural public school board was discriminatory under the Charter. He also said Ontario’s discriminatory message in its sex-ed curriculum was much the same as that sent by Alberta when it left sexual minorities out of its human-rights code, an exclusion which the Supreme Court ruled unanimously in 1998 was illegal. (He did not mention a B.C. case in which a local school board barred a teacher from introducing three books about same-sex parents in kindergarten and Grade 1, and the Supreme Court of Canada told the board it had failed to treat same-sex parents as if they were part of the community.)
In a separate challenge to the sex-ed curriculum being heard at the same time, the Elementary Teachers’ Federation of Ontario said that the government has illegally restricted teachers’ freedom of expression, not so much through the curriculum as through public threats of disciplinary action against teachers who strayed from it. The “chill” on teachers who wish to address sexual orientation means that students from same-sex families will feel excluded by what is taught.
Two of three judges hearing the case said plainly and more than once that they were struggling to understand the argument about teachers’ freedom of expression.
"Teachers have to adhere to a curriculum; that’s fundamental,” Justice Charles Hackland said. He added that he did not understand what the Charter violation was. Justice Thorburn made a similar point.
The province argues that the Charter of Rights should not be used to favour a particular curriculum.
“It does not prescribe the sexual health topics that must be taught, the level of detail with which they must be articulated, or the particular grades in which they must be introduced,” the Ontario Attorney-General’s office says in its written argument to the court (the province’s turn to address the court is Thursday).
It said the 2015 curriculum caused widespread concern among parents, prompting some to pull their children from public schools. It also said the new curriculum states that teachers must be inclusive and respect diversity.
Ms. McFarlane, who is being represented by Mr. Svonkin, said in an interview outside the courtroom that “we’re going to keep fighting in whatever way we need to to ensure the education system is reflective of our experiences, and doesn’t perpetuate the very discrimination that the law is supposed to protect us from."