Ontario education minister warned of ‘impacts’ of sex-ed rollback, human rights tribunal told

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Senior ministry staff warned the education minister that rolling back the sex-ed curriculum could be perceived as “outdated” and “not serving the needs of today’s students,” an Ontario human rights tribunal heard Thursday.

That’s according to a document introduced as part of a human rights challenge launched by an 11-year-old transgender child who contends the province’s repeal of the 2015 Health and Physical Education (HPE) curriculum discriminates against LGBTQ students.

A memo from senior ministry staff to Education Minister Lisa Thompson flagged concerns about rolling back the sex-ed curriculum because it would mean the exclusion of such topics as consent and sexting, among other things, a human rights tribunal was told Thursday.
A memo from senior ministry staff to Education Minister Lisa Thompson flagged concerns about rolling back the sex-ed curriculum because it would mean the exclusion of such topics as consent and sexting, among other things, a human rights tribunal was told Thursday.  (Andrew Francis Wallace / Toronto Star File Photo)

In a memo to Education Minister Lisa Thompson, dated July 25, 2018, assistant deputy ministers Martyn Beckett and Denys Giguère wrote about the “impacts” of quashing the 2015 HPE curriculum for elementary students, and replacing it with an interim one that included sex-ed material from 1998.

“There would be no mandatory learning of the following topics: consent, sexting, homophobia, sexual orientation, gender identity and gender expression,” wrote Beckett and Giguère.

They also pointed out that such a move “could be perceived by the public as outdated and not serving the needs of today’s students.” And, they noted, “some school boards have voiced their concern with utilizing sexual-health expectations from 1998.”

Nonetheless, in late August, Premier Doug Ford’s Progressive Conservative government moved ahead with an election promise and repealed the modernized HPE curriculum, which some social conservatives felt was not age appropriate. It was replaced with an interim document from 2010, which includes sex-ed material from 1998.

Read more:

Consent big concern during sex-ed consultations, Minister Lisa Thompson says

Sex-ed curriculum ‘doesn’t talk about consent enough,’ Education Minister Lisa Thompson says

Transgender girl says sex-ed repeal made her nervous about returning to school

The government also launched an extensive public consultation process on a range of education issues and received about 72,000 submissions between September and December.

Beckett, who testified Thursday, said he and Giguère “wanted to be clear and transparent” with the minister about how the curriculum change would impact mandatory teaching expectations.

But, he added that just because topics are no longer deemed mandatory doesn’t mean teachers can’t teach them. He said “teachers have the ability to use their professional judgment … in how they wish to develop their lesson” and are free to teach about issues, such as gender identity, stereotypes and LGBTQ issues.

Teachers have a responsibility to ensure that all students feel “welcomed, included and celebrated,” he told the tribunal.

When asked why the province did not keep the 2015 curriculum in place while undertaking its consultation process, Beckett said the government was committed to giving Ontarians a voice.

The applicant in this human rights case is an 11-year-old identified only as AB. Last week, AB testified that the government’s rollback of the curriculum puts trans youth in the shadows.

Students at Western Technical Commercial School joined a province-wide protest against the Ford government's rollback of the sex-ed curriculum in September.
Students at Western Technical Commercial School joined a province-wide protest against the Ford government’s rollback of the sex-ed curriculum in September.  (Steve Russell / Toronto Star File Photo)

AB’s lawyers Mika Imai and Marcus McCann argue that revoking an LGBTQ-inclusive curriculum and replacing it with a noninclusive one violates the human rights of LGBTQ students.

“We think this puts trans and queer youth at risk of being bullied and being harassed,” Imai told the Star, during a break in proceedings.

The Ontario Human Rights Commission has intervened seeking to protect the rights of girls and LGBTQ+ students, which it says are among the province’s most vulnerable and at-risk people. It also believes the interim curriculum does not properly address consent, putting students at greater risk of sexual violence.

The Elementary Teachers’ Federation of Ontario and Justice for Children and Youth are intervenors in this case.

Lawyers for the government argue teachers have substantial discretion when it comes to delivering the interim curriculum and are allowed to use any resource they choose to help them design their lesson plans. Beckett said teachers can still use the 2015 curriculum as a resource — that document, however, is no longer available on the ministry website.

“Teachers are required to teach in an inclusive way,” said Beckett. “Teachers are to be mindful and inclusive of children in the community and in the province of Ontario.”

Although curriculum development typically takes about two years, Beckett said the province is committed to delivering a new HPE curriculum by September.

The matter is being adjudicated by Jennifer Scott and Brenda Bowlby.

Proceedings will resume Friday and closing arguments are scheduled for next week

The province is also facing a separate human rights challenge launched by two transgender teens, and legal challenges by the Canadian Civil Liberties Association and the Elementary Teachers’ Federation of Ontario.

Isabel Teotonio is a Toronto-based reporter covering education. Follow her on Twitter: @Izzy74

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Sex-ed rollback, launch of snitch line, created ‘chill’ among teachers, court hears

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Ontario’s elementary teachers are legally challenging the rollback of the modernized sex-ed curriculum because it has caused a “chilling effect” among educators and put students at risk of harm, a court heard Wednesday.

Lawyers for the Elementary Teachers’ Federation of Ontario (ETFO), a union representing 83,000 educators, say the repeal of the 2015 Health and Physical Education (HPE) curriculum, and the creation of a website for parents to report non-compliant teachers, was unconstitutional.

Teachers take part in a rally at Queens Park to protest the rollback of the modernized sex-ed curriculum in August. Ontario elementary teachers have taken the government to court over the rollback, saying it deprives students of important information and puts them at risk.
Teachers take part in a rally at Queens Park to protest the rollback of the modernized sex-ed curriculum in August. Ontario elementary teachers have taken the government to court over the rollback, saying it deprives students of important information and puts them at risk.  (Eduardo Lima / Star Metro File Photo)

“This case is not about the curriculum, it’s about the directive and the reporting site,” said ETFO lawyer Adriel Weaver in Divisional Court. She said there’s been a “chill” among teachers making them afraid to teach the 2015 curriculum, which ultimately deprives students of information, putting them at risk.

ETFO lawyers say the directive by the Progressive Conservative government violates the rights of teachers by limiting their freedom of expression, and the rights of students.

The two-day hearing is tackling two separate legal challenges to the province’s rollback of the 2015 curriculum, which included such topics as same-sex relationships, consent and gender identity. The other application was made by the Canadian Civil Liberties Association (CCLA). Both groups want the government directive quashed, but the province, which will make its arguments Thursday, says the applications should be dismissed.

In August, Premier Doug Ford scrapped the 2015 HPE curriculum for elementary grades because some social conservatives felt it wasn’t age appropriate. It was replaced with a curriculum issued in 2010, which contains sex-ed material from 1998. At the time, he warned teachers who did not comply would face repercussions, saying: “Make no mistake, if we find somebody failing to do their job, we will act.” His government also launched a website called ForTheParents.ca, which some critics likened to a snitch line.

ETFO says the reporting website, which is no longer active, had the effect of intimidating teachers, constraining their professional judgment, and ensuring students don’t learn the 2015 curriculum.

The panel of three judges asked the ETFO lawyers if any teachers had been disciplined or if they had any data, or teacher surveys, indicating a chill effect. But they did not.

Prior to proceedings, Cindy Gangaram, a co-applicant in the ETFO challenge, told reporters she has experienced a chill effect, saying the directive “coerces me as a teacher to not teach important topics that had been included in the repealed 2015 curriculum.”

Lawyers representing the CCLA and co-applicant Becky McFarlane, who’s a queer parent of a sixth grader, focused their arguments on the curriculum change. They say the interim curriculum doesn’t include sexual orientation, gender identity and same-sex relationships, which alienates the LGBTQ+ community and violates their constitutional right to equality.

Stuart Svonkin, who represents the CCLA and McFarlane, said the directive is discriminatory against those who are LGBTQ+ because they have been “erased” from the curriculum. When the judges asked if there had been an infringement of rights during all those years when that sex-ed material was taught, from 1998 to 2014, Svonkin replied, “The world has changed … The Human Rights Code has changed.”

His comments were echoed, in part, outside the courthouse by Michael Bryant, executive director of the CCLA.

“The official curriculum in Ontario has been changed — it used to be diverse and now it’s heterosexual only,” he told reporters. “Obviously, this is about homophobia. If the government is going to be homophobic with its curriculum, you can bet the Constitution will have something to say about that.”

According to court documents filed by the province, sexual health topics in school are not matters of constitutional law. Furthermore, their lawyers argue that teachers have a great deal of discretion when it comes to lesson plans and have a duty to teach in a way that’s inclusive of all students, including LGBTQ+.

Outside court, ETFO president Sam Hammond told reporters the province is being hypocritical, by saying teachers have discretion when the government issued a warning to them and created a “snitch line to solicit complaints.”

“Thousands of frustrated Ontarians have called for the reinstatement of the (2015 curriculum), he said. “We have collected thousands of petition signatures calling for the sexual health component of the 2015 curriculum to be restored.”

The province recently wrapped up a public consultation on education issues, which will inform its creation of the next HPE curriculum to be issued for the next academic year. Between September and December, it received 72,000 submissions through web surveys, online comments, and telephone town halls.

At Queen’s Park, Progressive Conservative MPP Paul Calandra (Markham-Stouffville) said the government is “fairly confident” it will win the case.

Calandra noted the Tories consulted the public extensively as it prepares to revamp the health curriculum.

“I never in my wildest imagination thought that there would be 72,000 engagements in the process. It has gone very, very well,” he said Wednesday.

Meanwhile, NDP MPP Terence Kernaghan (London North Centre) said when children see themselves reflected in the curriculum, they “thrive both educationally and socially.”

“By deliberately removing LGBTQ identities and families from the curriculum, the Ford Conservatives put students at risk,” Kernaghan, the NDP’s critic for LGBTQ issues, said in a statement. “Any person, and any parent of a child who’s been a victim of cyber bullying, a survivor of sexual violence, or subjected to discrimination because of their LGBTQ identity, can tell you how devastating it is for a child’s mental and physical health to be denied information, empowerment and a safe space.”

With files from Robert Benzie

Isabel Teotonio is a Toronto-based reporter covering education. Follow her on Twitter: @Izzy74

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Ford government defends sex-ed rollback, argues teachers retain ‘substantial discretion’

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Teachers have “substantial discretion” when it comes to the interim sex-ed curriculum and are “required” to teach it “in a way that is inclusive and that reflects the diversity of the student population, including LGBTQ2S+ diversity,” says the province.

That’s according to court documents filed this week by the Minister of Education in response to legal challenges that argue the Progressive Conservatives’ controversial rollback of the Health and Physical Education (HPE) curriculum for elementary students is discriminatory and not inclusive.

Student across Ontario staged a walkout on Sept. 21 to protest Premier Doug Ford’s rollback of the sex-ed curriculum. Students at Western Technical Commercial School are shown during a rally outside their school.
Student across Ontario staged a walkout on Sept. 21 to protest Premier Doug Ford’s rollback of the sex-ed curriculum. Students at Western Technical Commercial School are shown during a rally outside their school.  (Steve Russell / Toronto Star File Photo)

The documents also provide insight into the popularity of a government website ForTheParents.ca that was created for parents to share concerns about the curriculum taught in their child’s classroom, which garnered intense backlash when it was launched and was lambasted by critics as being a “snitch line.”

In an affidavit, filed Monday in the Ontario Superior Court of Justice, Martyn Beckett of the Ministry of Education says learning expectations are designed so that “teachers have substantial discretion in deciding how to teach them.”

“No particular script or list of prohibited or mandatory words is provided,” says Beckett, assistant deputy minister of the student achievement division. “Teachers can choose, in the exercise of their professional judgment, how to design classroom programs to achieve the learning expectations in each grade set out in the HPE Curriculum, and how to implement those classroom programs for a diverse and heterogeneous class of individual students.”

For instance, he notes, teachers can talk about sexual orientation and gender identity, as part of a Grade 5 learning expectation that students “describe physical, emotional, and interpersonal changes associated with puberty.” And in Grade 7, when students are expected to “identify sources of support with regard to issues related to healthy sexuality (e.g., parents/guardians, doctors),” teachers can discuss sources of support that may focus on LGBTQ2S+ students.

Similarly, in Grade 1, students are expected to identify “major parts of the body by their proper names,” and nothing prohibits teaching students “the proper names for genitalia (including penis and vagina).”

His affidavit was among the documents submitted by the province in its response to legal challenges by the Canadian Civil Liberties Association (CCLA) and the Elementary Teachers’ Federation of Ontario (ETFO).

Those challenges were launched after Premier Doug Ford in August repealed the modernized Health and Physical Education curriculum introduced in 2015, which addressed issues such as same-sex relationships, consent, sexual orientation and gender identity. It was replaced by an interim curriculum from 2010, which includes sex-ed material from 1998.

The CCLA and Becky McFarlane — the queer parent of a 10-year-old girl in Grade 6 — filed a joint application in late August seeking an injunction to stop what it called a “discriminatory” curriculum. They argue the outdated curriculum does not foster a safe and inclusive environment for those who are LGBTQ+ and that the province is violating the Canadian Charter of Rights and Freedoms that guarantees equality and security; the Ontario Human Rights Code that outlaws discrimination; and the Education Act that requires schools be an inclusive environment.

In early September, ETFO launched another legal challenge which argues the province is violating teachers’ Charter rights, and their professional and ethical obligations enshrined within the Education Act and the Standards of Practice of the Ontario College of Teachers. The union, which represents 83,000 educators, is also demanding an end to the so-called snitch line, calling it an abuse of power.

In his affidavit, Beckett says that when ForTheParents.ca was introduced Aug. 22, it was for parents to weigh in on the sex-ed curriculum taught to their kids. During the first month, the government received about 25,000 submissions — of these, “very few included allegations of professional misconduct against a teacher, and only 13 of these included the contact information of the person making the submission.” The ministry contacted those 13 people and told them to notify the Ontario College of Teachers.

On Sept. 28, the website was broadened to solicit input on a range of education issues, including improving math and science grades and banning cellphone use in the classroom, as part of a province-wide consultation. By Oct. 29, the government had received 9,897 submissions and 6,523 people had completed a survey. People can also participate in Telephone Town Halls, which have been attracting between 25 and 135 participants per session.

Beckett notes the consultation process will run until Dec. 15 and that input will inform the government’s decisions for the next school year, including the creation of a new sex-ed curriculum that is age appropriate.

Both the CCLA and the ETFO challenges will be heard together in Divisional Court in January.

Isabel Teotonio is a Toronto-based reporter covering education. Follow her on Twitter: @Izzy74

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