‘Repealed’ sex-ed curriculum not banned, court told

Can still be used as a resource, government lawyer argues

Lawyers defending the province’s repeal of the 2015 sex-ed curriculum told a court Thursday that teachers can still use it as a resource — and talk about consent, transgender issues and homophobia — while abiding by the interim curriculum.

“There’s a lot of latitude,” lawyer Zachary Green told a panel of three judges in Divisional Court. “Teachers can use the 2015 document as a resource to meet the expectations in the 2018 document.”

That left some observers in the packed courtroom surprised, confused and critical of the province for its conflicting messages.

That’s because, when the curriculum was changed in August, Premier Doug Ford warned teachers would face consequences if they didn’t follow the interim curriculum, which includes outdated sex ed material form 1998.

The government also launched a website for parents to report teachers who were not compliant, which some likened to a snitch line.

“What we need from this government is clarity,” NDP education critic Marit Stiles, who was in the courtroom, later told reporters, describing the government’s arguments as “pretty confusing.”

“We’ve had really conflicting advice from the government,” Stiles said.

She recalled how Ontario’s Deputy Premier Christine Elliott, in the summer, said teachers could still talk about issues that weren’t in the interim curriculum with students in private, but not in front of the classroom.

“Today, was just another indication of this ongoing chaos and confusion,” said Stiles.

Green told the court that teachers can use their professional judgment in selecting from a variety of resources and background material, including the 2015 curriculum and documents such as “How to Become a Super Rad Gender Warrior Classroom teacher.” He said there’s no prohibition on using certain words or addressing certain topics, such as consent, transgender and homophobia.

The judges pressed him on whether teachers would be sanctioned for using the modernized 2015 curriculum. Green said they would not, “provided it’s a reasonable exercise.”

“It’s not a blank cheque,” he said. “I can’t stand here and say teachers can say whatever they want. That goes too far.”

In a media statement, former PC leadership candidate Tanya Granic Allen, president of Parents As First Educators, a socially conservative group opposed to the 2015 curriclum, said the province’s arguments suggest there has, in effect, been no repeal.

Thursday marked the end of a two-day hearing that’s the result of separate legal challenges made by Elementary Teachers’ Federation of Ontario and the Canadian Civil Liberties Association (CCLA).

ETFO says the Progressive Conservative government’s directive to scrap the 2015 Health and Physical Education (HPE) curriculum created a chilling effect amongst educators. That violates the rights of educators and students, because it limits their ability to teach material that keeps children safe, says ETFO.

Meanwhile, the CCLA argues the interim curriculum, a 2010 document that contains sex-ed material from 1998, has erased references to sexual orientation, gender identity and samesex relations.

That, says the CCLA, violates the constitutional right to equality of LGBTQ+ students and parents.

Judges asked Green whether teachers could discuss key issues such as consent with elementary students, which are expectations of the 2015 curriculum, but not the current one.

He said nothing prohibits talking about consent, if that’s something teachers want to draw upon in how they teach the current curriculum.

Ultimately, he said, it’s up to the teacher.

And, he noted that four school boards, including the Toronto District School Board, have publicly stated they are following the current curriculum, while still tackling topics such as consent and teaching in a manner that’s inclusive of all students, including LGBTQ+. ETFO lawyer Howard Goldblatt noted the fact that school boards have had to explain publicly how a curriculum will be delivered, is because “there’s pervasive confusion and a pervasive chill on the ability of teachers to exercise their professional judgement.”

Following proceedings, teacher Cindy Gangaram, a co-applicant in the ETFO challenge, said she’s still not certain if she can teach, for instance, a full lesson on transgender identity.

“What I’ve heard today here is that nobody really knows if I can, so perhaps I can get away with it,” said Gangaram, who teaches in the Hamilton-Wentworth District School Board.

“I’m still not certain that I’m in defensible territory,” Sam Hammond, ETFO president, told reporters outside court that he was “absolutely surprised” by the province’s arguments.

“It’s the first time since this whole debate began that the government, or a representative of the government, said ‘Yes, teachers may use the 2015 curriculum as a resource in implementing the current curriculum,’ ” Hammond said.

If the premier, and government, had made that clear at the outset, Hammond said, “We wouldn’t be here today.”

Part of the confusion stems from comments made by Ford, when he announced the curriculum rollback in August.

“Make no mistake, if we find somebody failing to do their job, we will act,” Ford said at the time.

ETFO says this helped create a chilling effect amongst teachers.

But Green told the court the premier’s statement was because ETFO had urged teachers to follow the 2015 curriculum, which he described as a “cry of rebellion.”

The current HPE curriculum is an interim document, until a new one is released in the fall.