In July 2018, Premier Doug Ford announced changes to the province’s sex-ed curriculum. Most controversial of the changes is the removal of sex-ed topics pertaining to gender identity, cyberbullying, same-sex relationships and consent. In the meantime, the province has mandated that elementary school teachers follow the sex education curriculum previously in place from 1998 to 2014.
The stated justification for the rollback is the need to have a robust consultation process with parents. This rationale does not completely explain the need to revert to an outdated curriculum, instead of allowing the 2015 curriculum to remain in place while a replacement curriculum is developed. The premier has suggested that immediate change is needed because the 2015 sex-ed curriculum was “age-inappropriate.”
In the context of the Ford’s statements, it can be reasonably inferred that the province is saying that same-sex relationships are age-inappropriate as compared to opposite-sex relationships. Following Ford’s announcement, the province released interim lesson plans, which educators have complained are vague as to the nature and extent of the curriculum changes. However, the general perception among educators and the general public is that discussion about topics pertaining to gender identity, consent and same-sex relationships (as outlined in the previous curriculum) is to be discouraged, if not prohibited.
To enforce the curriculum changes, the province launched an online tip line (fortheparents.ca), warning that the province “will act” if teachers fail to do their job; the implication being that teachers must obey or face possible disciplinary sanction if they teach the 2015 curriculum. The tip line, dubbed by critics as a “snitch line,” allows parents to file a complaint about teachers who fail to comply with the curriculum changes.
Complaints submitted through the tip line are shared monthly with the Ontario College of Teachers, the governing body that investigates complaints in relation to teacher misconduct. The province has essentially invited, if not encouraged parents to act as a police watchdog on teachers in their compliance with the curriculum changes.
The province is likely to have difficulty justifying the need for a tip line in the presence of existing procedures in place at the local school board level and at the College of Teachers to address curriculum concerns. The snitch line, coupled with the implied threat of discipline, has a real chilling effect on a teacher’s professional judgment and their ability to freely discuss sex education and health topics with their students without fear of sanction.
It is established law that the Charter guarantee of freedom of expression applies to teachers in the classroom. There are reasonable limits placed around those expression rights, for example, if a
teacher’s expression has the effect of creating a poisonous classroom environment or is otherwise contrary to the core values of the Education Act.
Germane to the expressive freedom at play here is the principle of establishing a sex education curriculum that fosters inclusiveness and promotes health and safety of Ontario’s schoolchildren. Teachers have, not just a right, but a duty to promote those principles in the classroom. As the Supreme Court stated in Trinity Western University v. British Columbia College of Teachers 2001 SCC 31 at para 13: “… teachers are a medium for the transmission of values. It is obvious that the pluralistic nature of society and the extent of diversity in Canada are important elements that must be understood by future teachers because they are the fabric of the society within which teachers operate and the reason why there is a need to respect and promote minority rights. … Schools are meant to develop civic virtue and responsible citizenship, to educate in an environment free of bias, prejudice and intolerance.”
While teachers do not have unfettered discretion on what to teach in their classrooms, the province’s directives are fundamentally inconsistent with the need to have an inclusive and modernized sex education curriculum that touches on relevant and current health issues. Affected students have asserted that the changes unlawfully target members of the LGBTQ communities and create a toxic classroom environment. The Elementary Teachers’ Federation of Ontario (ETFO) and impacted families have since launched legal challenges with the courts and the Human Rights Tribunal of Ontario. Those legal challenges are pending. While the courts and the human rights tribunal have yet to weigh in on the legal challenges against the sex-ed rollback, it is difficult to square the province’s directives with the guiding principles espoused by the Charter regarding the importance of equality, respect and tolerance in Ontario’s educational system.
“Previously published by The Lawyer’s Daily (www.thelawyersdaily.ca) a division of LexisNexis Canada”