Young blond child smiles while holding teddy bear in classroom

Gender identity lessons for grade one student (and her teddy bears) not discriminatory

Earlier this month the Human Rights Tribunal of Ontario dismissed an application brought on behalf of an elementary school student. The application alleged that the public school board had discriminated against a student on the basis of sex and (ironically) gender identity when her grade one teacher taught the class about gender identity. Specifically, the teacher mistakenly told students that “there is no such thing as boys and girls”. After a complaint from the student’s parents, the teacher clarified that not all people are boys or girls and introduced the concept of a spectrum of gender identity.

The student’s parents alleged that these comments created a “poisoned environment” for their daughter, that the lesson was not age appropriate, and that the teacher had “devalued” girls. In addition to unspecified financial compensation, the parents asked the Tribunal to order the school board’s teachers to inform parents in advance of lessons on gender identity and that the school board change its approach to teaching the topics of gender and sex in order to avoid the issue of gender fluidity.

It’s not discriminatory to teach students about gender identity, gender spectrum

The application was dismissed for a number of reasons. First and foremost, the Tribunal held that while it was clear that the teacher misspoke when she said there was “no such thing as boys and girls”, this was not sex discrimination against girls. It was merely an error, which was later corrected. And, it was an error that affected boys and girls equally (if it affected any one).

In addition, there was no evidence that either the teacher’s misstatement or subsequent lesson upset or hurt the student in anyway. The Human Rights Tribunal did not accept the parents’ arguments that their daughter subsequently teaching the same lesson to her teddy bears was evidence of harm. Rather, it was evidence that the student found this interesting enough to warrant sharing with her toys. Similarly, the parents’ evidence that the student commented that she may not want to be a “mommy” when she goes up because she would prefer dog ownership was seen as evidence of a perfectly age appropriate comment. Moreover, during the teacher’s lesson on the gender spectrum, the student self-identified as a girl just as she had done previously. Accordingly, the Tribunal held that the student did not experience any adverse impact by virtue of being a cis-gender girl in her classroom.

Gender Identity protections not to be used to further oppress trans students

As it has in a number of cases, the Tribunal’s decision clearly explains that the Human Rights Code is designed to protect the rights of vulnerable and disadvantaged people or groups. As the Vice Chair explained:

[214]   The applicant submitted that either everyone is “required” to have a gender identity, in which case we “cannot possibly say that the Code only protects some of those genders”, or we say that those people who do not have an atypical gender are not protected, in which case we should not require everyone to have a gender identity. I do not find this reasoning either logical or acceptable. My reasons for this statement follow.

[215]   Everyone has a gender identity. It is not a matter of “requiring to have one”. But the protections of the Code do not apply in the same way to all gender identities. The focus on providing protection on the grounds of gender identity and gender expression under the Code has arisen from the discrimination that individuals who are not cis-gender have faced in their lives. Persons whose birth assigned sex does not match their lived gender identity and gender expression have faced discrimination in many social areas. Toby’s Law, which led the way to adding these grounds to the Code in 2012, was fully titled as the Right to be Free from Discrimination and Harassment Because of Gender Identity or Gender Expression, 2012.

[216]   Therefore, while each person has a gender identity, the protections of the Code for cis-gendered persons is not the same as for transgendered individuals. In XY v. Ontario (Government and Consumer Services), 2012 HRTO 726 (the “XY case”) at para. 164, the Tribunal took notice of the fact that:

(…) it is beyond debate that transgendered persons such as the applicant 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.

To the extent that this application was more about the parents’ political agenda than about any specific harm to their daughter, it has failed. The application was dismissed, but so too were efforts by the parents to expand the scope of the hearing to rely on testimony impugning the school board’s general approach to addressing gender identity. For example, the Tribunal refused to hear from a proposed expert on issues related to transgender youth and anecdotal evidence of another family’s experiences with a Rainbow Club at another school in the Board.

The decision concludes by taking the parents to task for seeking a result which would itself essentially be an order to disregard the Human Rights Commission’s Policy on preventing discrimination because of gender identity and gender expression” and the Code. As Vice Chair Nicholls writes in the decision, “It is clear that this Application is ultimately not just or even primarily about N.B.’s experience in the Grade 1 classroom, but about the desire of adults to create systemic changes, which, if implemented, would be contrary to the Code, the policies of the Commission and the jurisprudence of the Tribunal”.

In other words, despite the parents best efforts, they were not permitted to use the hearing as an opportunity to air all of their objections about the school board’s approach to teaching gender identity. And, the Tribunal again affirmed that it’s not discriminatory to be taught about people who are different from you or to be expected to treat trans people with respect.

Notes on human rights claims on behalf of children

Parents (and in some circumstances other adults) can bring a Human Rights Tribunal application on behalf of a minor child as their “litigation guardian”. The child’s degree of involvement in the case will vary depending on their age, maturity, and ability to understand the issues or process. In appropriate circumstances, the Tribunal can admit “hearsay evidence” rather than having a child testify (hearsay evidence is when some one testifies about what you told them you witnessed, instead of you testifying about that experience yourself).

As a general rule, children’s names are anonymized in any public tribunal decisions. In addition, the tribunal will anonymize any other names which might identify the child. For example, the name of a parent, teacher, or even school may be anonymized. A litigation guardian can request that the child’s name be included, but this is not common.

Often, cases involving children relate to their experience at public school. Traditionally, the Human Rights Tribunal has prioritized hearing cases involving children, especially if the case relates to an ongoing issue at school. This makes sense, because a year or two in a child’s life can have a significant impact on their education and well-being. Despite this, this case was heard almost exactly 3 years after it was filed. It’s possible that this case was not processed quickly because the student had already transferred out of the school board by the time the application was made – though all applicants at the Human Rights Tribunal continue to face significant delays.

RESOURCES

N.B v. Ottawa-Carleton District School Board, 2022 HRTO 1044 (CanLII)

Ontario Human Rights Commission, Policy on preventing discrimination because of gender identity and gender expression

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