This past summer, the Attorney General of England and Wales addressed the subject of gender identity in schools in an interview with a national English newspaper. She argued that, under English law, teachers did not have to use someone’s preferred pronouns and that schools could require students to use bathrooms that match their biological sex even if they do not match a person’s preferred gender identity.

Conversely, in the United States, the Federal Department of Justice wrote a letter to the various states affirming “state and local officials’ obligation to ensure that their laws and policies do not undermine or harm the health and safety of children, regardless of a child’s gender identity.” The thrust of the letter and the news coverage surrounding it focused on medical transition and the phrase “gender-affirming care.” However, the letter also directed state attorneys general to make sure the subject of gender diversity was not being ignored in schools.

In Canada, there is much less talk from top governmental figures about how gender is addressed in schools. Perhaps that will change now that the Human Rights Tribunal of Ontario released its decision in NB v Ottawa-Carleton District School Board, a case about parental concern over how the topic of gender was covered in a grade one classroom.

What did the Grade One students hear from their teacher?

The case in question was brought against the school board by the parents of a little girl in grade one. The parents explained that one Saturday at breakfast the family was chatting about family roles. When her father told her that when she grew up, she could become a mother, the girl responded that she did not want to be a mom, she would rather have a dog. She also told her parents that there were no such things as boys and girls. In the same conversation, the girl said she knew that she could go to a doctor to change her body if she did not want to have a baby. The parents raised their concerns with the teacher and the principal but were unsatisfied with the response and decided to pursue legal action.

When the case came before the Human Rights Tribunal, the teacher explained how she taught that there was “no such thing as boys and girls.” She said that she had noted boy-girl-centred teasing in the class and so she read the class a book called “My Princess Boy,” which covered topics such as gender identity and the importance of acceptance, tolerance, and kindness. In a discussion after reading the book, a student asked her about sex-change operations and the teacher responded by telling the class that people can indeed go to the hospital to change their bodies. In the following weeks, the teacher talked to the class more about the book and how someone may feel differently in their heart from how they appear physically.

After reading “My Princess Boy,” another incident occurred. At the front of the class, there were two bottles of hand sanitizer. The children were to take these bottles with them on bathroom trips. On the bottles were paper-cut-out figures that mirrored the signs on the bathroom: one male and one female. One of the girls in the class grabbed the boy’s bottle. She put it on her desk to use when she went to the washroom and other children in the class shouted that she could not use that bottle.

This, the teacher felt, was not acceptable. She decided to show the class a video entitled “He, She, and They.” In that video, a person and a teddy bear chat about preferred pronouns. But the children still arranged themselves into gender-specific groups in class and argued about the subject. And it was in this argument that the teacher said, “there is no such thing as boys and girls.” At the tribunal, the teacher acknowledged that saying “there is no such thing as boys and girls” was a mistake. She said that she offered the class an apology later and drew a gender spectrum diagram for the class on the chalkboard. It was a line with girls on one side and boys on the other with many different gender options in between. The parents asserted that later in the year they found their daughter drawing this same gender spectrum diagram on a piece of paper while playing school and teaching her teddy bear about the gender spectrum.

The Legal Result

For a human rights complaint to succeed, the person claiming the discrimination must prove 1) that he has a characteristic protected from discrimination under the Code; 2) that he has experienced adverse treatment with respect to a service he received; and 3) that the protected characteristic influenced the adverse treatment. The parents argued that the school discriminated against their daughter because of both her sex and her gender identity—as a girl and as a girl. The adjudicator, Eva Nichols, ruled that the young girl was not treated differently because she was a girl saying, “The teacher’s comment [that there is no such thing as boys and girls] did not deny her sex as a girl, as compared to the other children in the class.” So, since everyone—boys and girls—was told that “there is no such thing as boys and girls” there was no discrimination.

In the same way, the adjudicator said there was no discrimination based on the young girl’s gender identity because the adjudicator did not find that the teacher’s statement undermined the young girl’s “status as a cisgender girl.” As a result, the parents’ case was dismissed. But the adjudicator also made some general comments in the course of the judgement that indicate how the common law approaches issues like gender identity and transgenderism. The adjudicator wrote that everyone has a gender identity… but the protections of the Human Rights Code do not apply equally to all gender identities. Instead, the Code focuses on “individuals who are not cis-gender.” The adjudicator also repeated what another tribunal said in 2012:

It is beyond debate that transgendered persons …. are a historically disadvantaged group who face extreme social stigma and prejudice in our society. This is a notorious fact, and it is appropriate for the Tribunal to take notice of it.

Perhaps the most important thing about this phrase is how it became included in the judgement in the first place. All legal cases in Canada from Human Rights Tribunals to the Supreme Court operate broadly in the same faction. The cases are composed of “fact” and “law.” Facts are introduced into the court record in specific ways according to technical strictures called the “rules of evidence.” Once the facts are established, the judge makes legal conclusions based on those facts. When there is no jury, as is the case in a Human Rights Tribunal proceeding, the judge or adjudicator makes both factual and legal conclusions. Usually, evidence is accepted from witnesses, affidavits, or expert reports. Sometimes, however, a judge may simply assert a fact based on common sense—this is called “taking notice” of a fact. The quote above and the stated fact that “everyone has a gender identity” now exist in the legal record as “noticed” facts.

The concept of judicial notice is an old one and a good one. It would be a massive waste of time and resources to require basic facts to be proven in court with each new case. Unfortunately, asserting the fact that “everyone has a gender identity” assumes that it is widely accepted that gender is something experienced subjectively. Yet, the lively global debate over the issues of gender identity, including questions surrounding its legitimacy as a concept, indicates that “everyone has a gender identity” is not as common sense as the adjudicator makes it out to be.

On a similar level, it is legitimate to ask how appropriate it is to take judicial notice of the “extreme social stigma” quoted above. Stigma is a mark of shame associated with someone’s circumstances, qualities, or personhood. One of the antonyms for shame is pride. Pride groups and parades that dedicate themselves to reducing social stigma have been a regular occurrence in Ontario since 1969. The Ontario government through Public Health Ontario publicly promotes increased “visibility, acceptance, and equality of LGBT2SQ communities.” At least officially in Ontario and Canada, someone who purports to place themselves on the gender spectrum is singled out for respect rather than reproach.

How did Ontario Public Schools get here? – A decade of social change

The phrases “gender identity” and “gender expression” were added to the Ontario Human Rights Code by legislation called Toby’s Act, which passed in 2012. At the time, it made Ontario the first major jurisdiction in North America to extend human rights protection to transgendered people. The legislation did not define “gender identity” and “gender expression.” That job was left to the decisions of the Human Rights Tribunal and the Human Rights Commission (an Ontario government agency that, strangely enough, defines the terms using language that is currently considered exclusive and offensive by LGTQ advocacy groups).

Toby’s Act and changes to the school curriculum went hand in hand in Ontario. In 2010, then-premier Dalton McGuinty introduced a new sex education curriculum in Ontario, but due to parental backlash, the curriculum was scrapped. In 2015, then-premier Kathleen Wynne revealed a re-vamped curriculum that covered topics such as consent, specific names for body parts, gender identity and sexual orientation, online behaviour, and cyberbullying and sexually transmitted infections.

Once elected, current Premier Doug Ford promised to “repeal and replace” the curriculum. On August 22, 2018, the Minister of Education directed all public elementary schools to stop using the 2015 curriculum but allowed it to continue to be taught in grades 9-12. However, in a court challenge to the Ministry’s directive, Ontario admitted that elementary teachers were completely free to continue to “teach the gender identity concept in the class” even though it was not in the curriculum. (If you are interested, you can read a comprehensive summary of that case here.) A new curriculum was finally announced in 2019 that looked nearly the same as the 2015 curriculum Premier Ford had campaigned against. (You can read an overview of that curriculum by the Ministry of Education here and ARPA’s analysis of it here.)

Does this Mean Anything for Private Religious Schools?

Under the current legal framework, this Tribunal decision is unlikely to mean trouble for private religious schools. It is also unlikely that private religious schools could be subject to a Human Rights complaint for teaching their students a religiously-informed approach to gender and sexuality.

Section 18 of the Human Rights Code includes a carve-out for religious schools and organizations provided the schools and organizations focus on serving their community and limit their membership in the community. In other words, a religious school with religious members will not meet the legal definition of “discrimination” where the community sincerely holds an agreed-upon belief that may otherwise be discrimination according to the Code. The Tribunal has dealt with similar cases before, and you can read more about our coverage of them here.

It is important to know, however, that Ontario’s Human Rights Code (and the human rights codes in every other province) are “quasi-constitutional” documents according to Canadian Courts. They are all modelled on the Canadian Charter of Rights and Freedoms. However, unlike the Charter, human rights codes can be amended by regular legislation. Section 18 protecting private religious organizations is not set in stone. Therefore, parents who send their children to religious schools in Ontario should not put their faith in a future where section 18 is always there.

Are kids allowed to have sex change operations in Ontario?

The little girl in NB v Ottawa-Carleton District School Board told her parents that she knew she could go to the hospital to change her body. It is true that adults can do that, but can children receive gender surgeries in Canada as they could in the UK and, apparently could, in the US? The answer is yes. Transition-related hormone therapy and physical surgeries are available from health care providers across Ontario and are funded by OHIP. Children do not need parental consent for medical interventions in Ontario according to Rainbow Health Ontario, an organization promoted by the Ontario Government. Children under 17 do need parental consent to change the gender designation on their various pieces of government identification. Nevertheless, there is no age at which it might be legally inappropriate to begin the process of hormone therapy or physical surgery. In Ontario, the decision to start hormone therapy or begin gender-reassignment surgery is decided on a purely case-by-case basis.

Any gender-reassignment surgery must be approved by the Ministry of Health before the surgery takes place and can only take place after the individual asking for the surgery has been on continuous hormone therapy for a year. Applications for gender-reassignment surgeries must be approved by a physician. While your local family doctor might urge caution to a young person who enters their clinic seeking medical approval for surgery, many might not. For example, in Ontario, there are more than 1000 health service providers dedicated to providing “competent and welcoming care” to those seeking a medical answer to their gender questions. Some of these healthcare centres explicitly state that they are not only providers of health care services but engage in advocacy as well.

Conclusion

Religious school communities across Canada should keep a very close eye on how gender identity in the public school system is dealt with by the legal system. It might be easy to dismiss all of this as something that only happens in the public system and would never happen in your school. Recent history in Alberta demonstrates otherwise. All it takes is a motivated provincial government or a motivated education minister to brush aside the public/private divide or the religious/secular divide. The same is true on the federal side of the equation. The conversion therapy ban passed by Parliament with Bill C-4 includes legal language broad enough to potentially criminalize conversations between a parent and their child about sexuality and gender. On August 28th, 2022, Prime Minister Trudeau launched a 100-million-dollar action plan that will “build [sic] on the criminalization of conversion therapy and launch consultations on additional criminal law reforms.” Simply put, section 18 of Ontario’s Human Rights Code is not something you can hang your hat on; making sure it remains on Ontario’s lawbooks will take committed political engagement. Nor are public school boards something ARPA’s supporters should ignore. ARPA supports strong engagement in public school boards. Finally, Christian parents should always be in continuous communication with their children, and actively involved in and aware of the education they are receiving.