Sex-ed court challenges are a matter of when, not if

ANALYSIS: The Tories have vowed to reintroduce a decades-old sex-ed curriculum. When they do, writes John Michael McGrath, advocates for LGBTQ students will take the province to court
By John Michael McGrath - Published on August 10, 2018
Ontario education minister Lisa Thompson
Education minister Lisa Thompson says the government is confident that teachers will be able to familiarize themselves with the old curriculum by September. (Chris Young/CP)

Any day now, a bureaucrat in the bowels of the Ministry of Education is going to press send on an email directing Ontario’s 72 boards of education to stop using the current physical- and health-education curriculum (adopted in 2015) and start using the preceding one, which was adopted a generation ago, in 1998, back when the internet was a hobbyist’s pursuit and the Seinfeld finale was must-see TV.

Shortly after that happens, the province is going to find itself facing at least one legal challenge.

“We’ve been waiting for the hammer to come down, for the minister to send a directive,” says Marcus McCann, a lawyer at Symes Street & Millard who is representing multiple families ready to challenge the government’s move when it comes.

“My fear is that they’re deliberately running down the clock, that they’ll make a directive on the 3rd of September or something. We’re running out of time: the clock is ticking for these families.”

But, McCann says, they have to wait for the government to actually do something first.

Education minister Lisa Thompson says the government is confident that the province’s teachers will be able to familiarize themselves with the old curriculum in time for the new school year.

“My response is I have every confidence in our teachers, and they're going to be utilizing the curriculum that was last used in 2014, and they're going to be preparing students for the realities of today,” says Thompson.

Twenty-five school boards have publicly disagreed with the government’s decision to scrap the 2015 curriculum.

The essence of the legal argument McCann will make at the Ontario Human Rights Tribunal will be that reverting to the 20-year-old curriculum — whose lack of content on LGBTQ issues was exactly what the 2015 document was supposed to fix — is a form of discrimination that’s illegal under the Ontario Human Rights Code.

The code prohibits discrimination against “every person” on the basis of, among other things, “sex, sexual orientation, gender identity, gender expression.”

McCann argues that teaching the outdated curriculum constitutes “erasure.”

“The law recognizes that young people are rights holders,” he says. “And in this case, they are the ones who will suffer harm if accurate, inclusive sexual-health education is not taught in schools.”

The Canadian Civil Liberties Association has also said that it will challenge the government’s move, but it would do so in the Ontario Superior Court of Justice, not at the tribunal.

The tribunal has the power (and, under provincial law, the responsibility) to determine whether the government has illegally discriminated against people protected by the code, but its decisions aren’t final. Either side can, if it chooses, appeal the tribunal’s decision to the courts.

And there’s precedent for the courts upholding tribunal decisions even when they relate to matters of provincial policy.

One 2012 case from the British Columbia Human Rights Tribunal made it all the way to the Supreme Court of Canada. In Moore vs. British Columbia, the parents of a child with dyslexia challenged the province’s move to close the special-education facilities their son relied on. The tribunal found that the province and the school district had discriminated against the child, but its decision was later overturned by provincial courts. The Supreme Court, however, upheld the tribunal’s original decision.

The Supreme Court did, though, strike down elements of the tribunal’s decision that had been intended as “systemic” remedies — for example, the justices found that the tribunal’s order to change the province’s funding methods for special education was unreasonable.

Sex ed in Ontario will generate legal battles; it’s just a question of when. For now, the only firm date is September 4 — the first day of school, when, if the government has its way, the old curriculum will be new again.