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Elementary Teachers’ Federation of Ontario loses sex-ed court challenge

THE CANADIAN PRESS AND NEWS STAFF | posted Friday, Mar 1st, 2019

An Ontario court has dismissed a legal challenge from elementary teachers and a civil liberties group over the province’s sex-ed curriculum.

The challenge from the Elementary Teachers’ Federation of Ontario and the Canadian Civil Liberties Association argued that changes made by the Progressive Conservative government infringed teachers’ freedom of expression and put students at risk by failing to be inclusive.

The Tories repealed a 2015 curriculum from the previous Liberal government that included lessons warning about online bullying and sexting, as well as parts addressing same-sex relationships and gender identity.

Instead, elementary teachers were directed to teach the previous 2010 curriculum, which ETFO argued hampered teachers’ ability to teach in a way “that is positive, inclusive, and respectful of diversity.”

A Divisional Court ruling released today notes that government lawyers said teachers were allowed to go beyond what is in the new curriculum, and there was no evidence of a teacher being disciplined for doing that.

“Nothing in the 2010 curriculum prohibits a teacher from teaching any of the topics in question, which include: consent, use of proper names to describe body parts, gender identity and sexual orientation, online behaviour and cyberbullying, sexually transmitted diseases and infections,” the ruling stated.

ETFO’s lawyer had said there might not have been a legal challenge if Premier Doug Ford hadn’t also issued a warning to teachers who said they would continue to use the now-scrapped version of the curriculum.

The court said some of the public statements made were “ill-considered,” but did not constitute an infringement of the charter.

“Finally, we note that it is the role of legislators as elected officials, not the court, to enact legislation and make policy decisions,” the court ruled.

“Courts should not interfere with the exercise of a discretion by a statutory authority simply because the court might have acted differently or finds that a decision may be ill-advised.”

The court also found that objections to the use of the term “sexually transmitted disease” in the 2010 curriculum weren’t enough to warrant the court’s intervention, arguing that the term is widely used.

“While the applicants and interveners object to the use of the “outdated” term “sexually transmitted disease” (STD) in the 2010 curriculum and prefer the words “sexually transmitted infection” STD is the term used by the U.S. Centres for Disease Control and Prevention, Planned Parenthood, and is the title of the International Journal of STD and AIDS that ETFO’s expert, Dr. Logie, published in May 2018.”

The court also noted that STD is the term used in elementary schools in many other provinces and territories.

Education Minister Lisa Thompson said after getting feedback from public consultations on the health and physical education curriculum, a new one will be ready for the fall.

“I think it’s going to be safe to say that there were opportunities to introduce even more realities in terms of what students face today,” Thompson said. “Cyberbullying, consent, human trafficking – those are all issues that we have heard through our consultation that parents want to be addressed.”

The Liberal curriculum included lessons on cyberbulling and consent.

Thompson would not say specifically if gender identity would be part of the new curriculum.

The Canadian Civil Liberties Association called it “a crummy day for equality” and said they intend to appeal.

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