Teachers challenge province over sex-ed curriculum

Ontario elementary teachers have taken the government to court over the province’s sex-ed curriculum in part because of a warning to educators that came along with it, their lawyer said Wednesday.

A Toronto court is hearing a legal challenge from both the Elementary Teachers’ Federation of Ontario and the Canadian Civil Liberties Association over the Progressive Conservative government’s repeal of an updated sex-ed curriculum. Those 2015 updates made by the previous Liberal government included lessons warning about online bullying and sexting, but opponents, especially social conservatives, objected to parts addressing same-sex relationships and gender identity.

The teachers allege the repeal is unconstitutional, putting children at risk by failing to be inclusive and meeting the needs of today’s students.

But ETFO lawyer Howard Goldblatt said in court that there might not be a legal challenge if Premier Doug Ford hadn’t also issued a warning to teachers who openly said they would continue to use the now-scrapped version of the curriculum.

“It’s not simply a replacement of one curriculum with another ... it’s because of how. It’s because of the message that was conveyed,” Goldblatt said.

In August, Ford said the government would not tolerate anyone using children “as pawns for grandstanding and political games.” “Make no mistake, if we find somebody failing to do their job, we will act,” the premier said. His government also launched a website where parents can report such concerns, which critics have dubbed a “snitch line.” And a public interest committee was announced to ensure “curriculumbased misconduct issues are fairly dealt with” by the Ontario College of Teachers.

When asked by the Divisional Court judges Wednesday if any teachers had been since disciplined for using the 2015 curriculum, Goldblatt couldn’t point to any examples. But he said their freedom of expression is being constrained.

“We don’t have to wait for people to be actually prosecuted,” Goldblatt said. “There are charter values that must be respected in the classroom, in the delivery of the curriculum, and it is those values that have been fundamentally infringed.”

In early August, the director of the Rainbow District School Board in northern Ontario expressed concerns that it wasn’t possible to return to the old curriculum, issued in 1998, and said the board’s schools would continue to use the 2015 document.

But later that month, the province provided all boards an updated lesson plan with additional material, which Rainbow adopted and continues to teach, a spokeswoman said Wednesday. Experts have said that interim curriculum largely still uses the vague language and broad topic outlines used in the 1998 document.

Lawyers for the Progressive Conservative government say in written arguments that the current curriculum is purposely general to give teachers flexibility to address topics not expressly referred to in the document. But Goldblatt said that isn’t the message the provincial government has given to teachers. Government lawyers argue that the Constitution doesn’t entrench any particular curriculum and doesn’t set out what sexual health topics must be taught.

The province has said it will be writing and testing a new curriculum through the spring, after looking at data from public consultations.

An overwhelming majority of roughly 1,600 submissions on the first day of consultations opposed the repeal of the modernized sexed curriculum, but Ford suggested “certain groups” flooded the process in its early stages.