The Justice Centre is representing a young girl (“NB”) and her mother in an application before the Ontario Human Rights Tribunal. The family brought a claim for discrimination on the basis of gender identity against the Ottawa-Carleton District School Board, the child’s former teacher and the principal of the school, for teaching NB and other school children that there are no such things as girls or boys. NB identifies strongly as a girl.
In the early part of 2018, NB was a 6-year old student in a grade one class taught by “JB”. The teacher showed the class a YouTube video entitled, “He, She, and They?!? – Gender: Queer Kid Stuff #2”. The video contained a number of statements about gender identity, and asserted that “some people aren’t boys or girls” and that those who do not feel like a ‘she’ or a ‘he’ might not have a gender. In order to determine who is a girl or a boy – or neither, the video says, all you have do is ask someone their pronouns.
As the semester progressed, the application alleges, JB employed various teaching tools which undermined the female gender identity and sex. She was aware that NB and other students were biologically female and identified as such. On one occasion, JB drew a gender spectrum on the board and asked each student to identify where they fit on the spectrum. NB indicated that she was on the furthest end of the spectrum marked “girl.” JB then told the class that “girls are not real, and boys are not real.” This statement by JB publicly contradicted NB’s statement asserting that she was a girl, which caused NB distress and confusion as she had just indicated that she identified strongly as a girl.
NB went home and told her parents, repeatedly asking why her identity as a girl was “not real.” Further, after a lesson by JB on the concepts of gender spectrum and sex changes, NB stated that she was not sure if she wanted to be a mommy when she grew up, and asked if she could “go to the doctor” about this issue. NB also expressed feeling that she “had to do something” about the fact that she is a girl.
The application states that NB’s mother met with JB to discuss her concerns about the impact of these lessons on NB. During that meeting, JB confirmed to Ms. B that she had covered the topic of sex changes and gender fluidity with the class because, even in grade one, there were students questioning and struggling with the idea of boys and girls. She said that the concept of gender fluidity needed to be discussed to help them understand what they were going through, and noted that “otherwise, it’s extremely alienating to them.” JB advised that she viewed the issue of gender fluidity as a “new concept that we were never really taught”, and that she thought it was “a change within all of society.” She confirmed that the Board policy is that there is gender fluidity.
Despite being advised of the family’s concerns, JB did not take any steps to affirm NB’s female gender identity and biological sex, or to address the concept of female gender identity or sex more positively with the class, nor did she offer to consult with the board’s “specialist on inclusion and gender fluidity” on how to support students in the grade one class who were not questioning their gender.
NB’s father spoke to the school’s principal, Ms. D, who confirmed that she agreed with the teacher’s approach. NB’s father suggested that a discussion about principles of “tolerance and respect” would be more appropriate than discussions and videos about the concept of gender fluidity, in the context of a grade one class, and that a discussion about these principles would have been affirming of all students in the class. No meaningful action was taken by the principal, or the Superintendent of the School Board to whom NB’s parents also expressed their concerns, other than to suggest that NB could leave the room during these lessons. Having learned that other parents shared their concerns, the family requested that the school communicate with parents of students in the class about gender fluidity lessons that had occurred, but this was denied.
At the conclusion of these fruitless meetings, the family opted to enrol NB in another school, which made her very excited. She informed her family that she was happy that she would no longer have a teacher who said that “girls are not real.” Even after moving to the new school, NB continued to be upset by her experience in JB’s class. In October of 2018, she told her mother that she did not like JB’s statement that boys and girls were not real, and said: “This table is real, and this fan is real, and even if the fan was made out of cardboard, it’s still real.” That month, her mother consulted with a psychologist for assistance in responding to NB’s concerns about her teacher’s denial of her gender identity and biological sex.
The family of NB commenced proceedings at the Human Rights Tribunal of Ontario (“HRTO”) against Ottawa Carleton District School Board, JB and Ms. D for discrimination on the basis of gender identity, which is contrary to the Ontario Human Rights Code (“Code”), section 1.
According to the Ontario Human Rights Commission’s policy on preventing discrimination because of gender identity and gender expression, discrimination happens when a person experiences negative treatment or impact, intentional or not, because of their gender identity. It also says that everyone has the right to define their own gender identity. There is no provision which says that only certain gender identities are protected; indeed, its own definition of gender identity includes those whose gender matches their sex.
The Justice Centre has now amended the Application to include a claim for discrimination on the basis of sex, and notes that the child’s rights to security of the person and equality under sections 7 and 15(1) of the Canadian Charter of Rights and Freedoms have also been infringed.
With its Complaint, the family is seeking to have the Ottawa-Carleton District School Board
- ensure that classroom instruction not devalue, deny, or undermine in any way the female sex and/or gender identity;
- mandate that teachers inform parents when lessons on gender identity will take place or have taken place, including the teaching objectives and the materials that will be or have been used for such lessons;
- cease and desist teaching that sex categories of male and female do not exist; and
- pay $5,000.00 for its discrimination against NB.
The School Board and its employees filed a Request for a Summary Hearing, asking the HRTO to dismiss the matter. The family had previously responded to that Request, and an amended Response has now been filed by the Justice Centre.
On November 18, 2019 the School Board filed a Response to the Application, essentially taking the position that NB, as a “cisgender” girl, does not have a claim for discrimination under the Code. The Justice Centre filed a further Reply with the Tribunal on December 11. We now await the Tribunal’s decision as to whether it will grant the School Board’s request for a Summary Hearing (on the basis that NB’s claim has no reasonable prospect of success), or allow the matter to proceed through the normal channels to a full hearing.