To realize the objectives enshrined in human rights legislation, our education system must promote tolerance and inclusion, which includes teaching all students the sexual health curriculum.

June is Pride month across Canada. Pride traces its roots back to the Stonewall riots of June 28, 1969, when gay, lesbian, bisexual, and trans (LGBT) people protested a police raid at the Stonewall Inn in New York City. Pride marches began in the United States one month after Stonewall, and they have since spread across the continent and the world, as a reminder of the brutality and discrimination faced by members of the LGBTQUIA+ community.

The law too has evolved to recognize the rights and dignity of LGBTQUIA+ persons. Human rights legislation in most provinces and territories prohibits discrimination and harassment on the grounds of sexual orientation, gender expression and gender identity (some provinces do not include “gender expression” as a protected ground).

These advances have been slow-moving. Although Ontario’s human rights commission recommended its inclusion in 1977, sexual orientation did not become a protected ground until 1986, with gender expression being added to the Code as recently as in 2012.

Early education needed

And yet members of the LGBTQUIA+ community continue to experience stereotyping and discrimination. Trans people in particular experience higher levels of social marginalization because of deeply rooted myths and fears about people who do not conform to social “norms” about what it means to be male or female.

According to a study carried out by the 2010 Trans Pulse Project, nearly all trans people have had negative experiences from family, service providers, police, or others in the broader community because of their trans identity. The same survey states that 77 per cent of trans individuals reported having suicidal thoughts; 45 per cent had attempted suicide.

These figures demonstrate the need for early and consistent education around sexual orientation, gender identity and gender expression — not only to counteract stereotypes and discrimination, but also to support self-acceptance for those within the LGBTQUIA+ community.

In Ontario, education around gender and sexual identity was introduced by the Liberal government in 2019 as part of a revamped Human Development and Sexual Health curriculum; though slightly modified, the same curriculum remains in place today.

Self-acceptance and sexual orientation are part of the Grade 5 Human Development and Sexual Health curriculum. In Grade 6, students learn about how stereotypes, including assumptions about gender and sexual orientation, can affect how a person feels about themselves, together with appropriate ways to respond to and challenge assumptions, stereotypes and homophobia. Gender identity, gender expression and sexual orientation are taught in Grade 8.

The role of exemptions

At the same time the 2019 curriculum was rolled out, so too was Program Memorandum 162, which requires school boards to “develop and implement a policy or procedure that allows for students to be exempted, at the request of their parents, from instruction related to the Human Development and Sexual Health expectations found in the Ontario Curriculum.”

As it stands, the decision not to exempt students from learning around the inclusion of sexual minorities is in the hands of individual school boards. The Halton District School Board has confirmed that: “Where the learning in the classroom or school program promotes inclusion on any of the protected grounds in the Ontario Human Rights Code, the HDSB will not provide creed-based or any other accommodation.”

The Toronto District School Board notes, in a covering letter to its exemption policy, that:

“the exemption does not include topics raised outside of the [health] curriculum and that the Board, aligned with its commitment to equity and human rights, will continue to focus on respecting diversity, promoting inclusive education and identifying and eliminating discriminatory bias in other school programs and activities.”

Other school boards, however, simply permit a wholesale exemption to the sexual health curriculum, including themes of self-acceptance, homophobia and gender identity.

Should exemptions be granted?

Education around sexual health in schools has long been a source of controversy. But bearing in mind the disproportionate discrimination faced by some within the LGBTQUIA+ community, should exemptions be granted to education about sexual orientation, gender identity and gender expression?

A 2022 decision by the Human Rights Tribunal of Ontario offers insight into the principles that ought to guide any discussion of exemptions. That case involved an application by the parents of a child who argued that their daughter had been subject to discrimination on the basis of sex because her teacher had, amongst other things, taught students about the gender spectrum, showed the children a video intended to teach about preferred pronouns, and read a book entitled Princess Boy, thereby “devaluing” her and creating a “poisoned environment.”

The Tribunal ultimately dismissed the application, noting that it was “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 its reasons, the Tribunal cited a 20-year-old Supreme Court decision that addressed the “cognitive dissonance” that a child might experience from learning things in the classroom that did not correspond to the views of their parents, noting that such dissonance is “neither avoidable nor noxious” but something children encounter every day as members of a diverse student body in a public school system.

This kind of cognitive dissonance “is simply a part of living in a diverse society” and “a part of growing up” and “arguably necessary if children are to be taught what tolerance itself involves.”

To realize the objectives enshrined in human rights legislation, our education system must promote tolerance and inclusion, without exception. It would be inimical to the underlying purpose of that legislation to exempt students from such learning at the request of their parents. “Cognitive dissonance” is a necessary part of growth, and arguably, a requirement of being a member of society.

Filed in: Civil Rights, Housing, Human Rights, Not for Profit Law