The Ontario government’s decision to repeal a modernized sex-ed curriculum does not violate a transgender girl’s rights, the province’s human rights tribunal decided Thursday.
The Human Rights Tribunal of Ontario dismissed the argument that the government was discriminating against the 11-year-old sixth-grader – identified only as AB – by not including mandatory lessons on gender identity in the curriculum at the time she filed the complaint.
The tribunal said a separate court decision in favour of the government made the girl’s complaint moot.
The Divisional Court ruled in February that it is the role of elected officials, not the courts, to make legislation and policy decisions, noting that government lawyers said teachers were allowed to go beyond what is in the new curriculum.
“While the applicant is worried that she may experience increased victimization, her fear is speculative because it is now clear to all school boards and teachers what is required of them,” adjudicators Jennifer Scott and Brenda Bowlby wrote, noting that the court affirmed that teachers are required to include all students in the sex-ed curriculum.
“There is now no uncertainty about the sex education that she will receive,” they wrote. “Her teachers must include her because the code and charter require them to teach in an inclusive manner.”
Since the girl’s hearing before the tribunal in January, the Progressive Conservative government introduced a sex-ed curriculum that returns to teaching gender identity and consent.
But the lessons on gender identity will happen in Grade 8 – later than it would have under the modernized curriculum introduced by the previous Liberal government in 2015.
The girl testified in January that she wasn’t sure how classmates would treat her if subjects such as gender identity and gender expression were not required, and voiced concerns about going to a bigger school next year for Grade 7.
“I don’t know what the students have been taught,” she said at the time.
The challenge before the Divisional Court – which was brought by the Elementary Teachers’ Federation of Ontario and the Canadian Civil Liberties Association – differed from the human rights case because it did not focus on the effects on LGBTQ students.
The applicants in that case argued that the changes infringed teachers’ freedom of expression and put students at risk by failing to be inclusive.
But the tribunal opted to lean on the court decision because the government used the same defence in each case.
“In order for the applicant to succeed, we would be required to find that the Divisional Court erred,” Scott and Bowlby wrote. “That, in essence, amounts to stepping into the shoes of an appellate court.”