Ontario teachers union overplays sex-ed f ight

Trying to use courts to solve political issue

Critics of the clumsy way the Ontario government has handled its self-created sex education controversy had a field day last year when they led public demonstrations predicting all sorts of dire consequences if the wonderful 2015 Liberal curriculum was not immediately restored.

What happy days those were.

The Elementary Teachers’ Federation of Ontario got a chance for a free kick at a government it doesn’t like and public support for an up-to-date curriculum was easy to attract.

Now, the teachers’ union has badly overplayed its hand. The union and the Canadian Civil Liberties Association were in court this week in an attempt to get their preferred sex-ed curriculum reinstated. The problem they face is that sweeping generalities are dandy at a pep rally, but courts generally prefer some kind of factual, legal-type arguments.

One can never predict what a court will decide, but some of the points put forward by the teachers’ union and the civil liberties group seem remarkably weak.

The civil liberties folks argue that the curriculum the PCS removed “contains detailed information about sexual orientation, gender identity, same-sex relationships, consent, and online safety at the Grade 3, Grade 6, Grade 7, and Grade 8 levels,” information that is not present in the older curriculum used in schools this year.

Fair enough, but the group’s executive director Michael Bryant says, “Obviously, this is about homophobia. If the government is going to be homophobic with its curriculum, you can bet the Constitution will have something to say about that.”

Maybe, but don’t bet too much.

The union advances the argument that the PC version of the curriculum will have an adverse effect on student safety because vital information is not included. Presumably they believe that everything children know about sex comes from teachers in classrooms.

The problem lies in demonstrating that adverse effect.

The union’s lawyers argue that the government has not produced any evidence showing that students won’t be harmed. The lawyers then admit that none of their experts have conducted any studies to show that students have been harmed, but say that shouldn’t stop those experts from speculating on what might happen.

That doesn’t sound like a top-drawer argument, but the teachers have more. Their lawyers say that teachers’ constitutional right to the freedom of expression is being limited by a curriculum that tells them what to teach. This, of course, would be a feature of every curriculum. If teachers have an unfettered right to free speech in the classroom, then surely every element of the provincial curriculum poses an affront to that right.

One of the points of contention is a statement last year from Premier Doug Ford, who said that if teachers didn’t teach the PC curriculum there would be consequences. Some would interpret that as expecting teachers to do their jobs. The union lawyer was unable to provide any examples of teachers who had been disciplined for interpreting the curriculum in their own way.

One of the problems the union faces is that the government is being infuriatingly reasonable in its own court filing. It says teachers should deliver the curriculum “in an inclusive way” and “in a way that reflects diversity.”

The government goes on to argue that the curriculum is not a script or a list of mandatory or prohibited words, and that teachers may teach the topic of gender identity if they wish. In the perfect world, this is exactly what the government would have said last year when it changed the curriculum. Instead, the premier delivered a shot of political bluster, but nothing seems to have come of it.

The teachers and the civil liberties group are using the courts in an attempt to resolve an issue that is political, not legal. The situation illustrates what a minefield government walks into when it attempts to define values that will be acceptable to all. It can’t be done.

The previous Liberal government had this modern curriculum ready to go in 2010, but withdrew it because of parental protests. The Liberals then sat on it for five years, allowing what some call a damaging, homophobic curriculum to remain in place.

The PCS were responding to the same kind of parental pressures when the promised a public consultation, a curriculum review and an amended document. Don’t be surprised if the final PC sex-ed plan is much like the one they threw out.

The teachers’ union has strong educational arguments to make in favour of the 2015 curriculum. Where it goes wrong is in trying to use the courts to substitute its judgment for that of an elected government, even one that is exercising its right to be wrong.