Human Rights Tribunal dismisses case alleging child faced discrimination when teacher discussed gender identity

The Human Rights Tribunal of Ontario has dismissed an application from a family that alleged their female child was discriminated against when her Grade 1 teacher discussed gender identity and “gender fluidity” with the class.

In a decision released last month, HRTO member Eva Nichols wrote that the young girl did not face an “adverse impact, on the grounds of sex and gender identity,” and that the comments by the teacher did not amount “to the poisoned environment cited by counsel.”

The discussions around gender identity occurred in January, 2018, when the girl was attending an elementary school in the Ottawa-Carleton District School Board.

“It is clear that this Application is ultimately 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,” Ms. Nichols wrote, referring to the Ontario Human Rights Code. (The names of the applicant and parents were anonymized in the decision.)

In recent years, governments and school boards have been challenged by a small but vocal group of socially conservative families on equity policies in schools and health curriculums that include discussions about gender identity and same-sex marriage.

School policies and curriculum are largely directed by the province. But advocates for equity say they are worried that upcoming municipal school-trustee elections in Ontario are seeing some candidates opposed to classroom discussions of topics such as gender identity pushing these issues to the forefront.

In this particular case, the tribunal was told that the teacher overheard “certain teasing behaviours” and subsequently read her students the book My Princess Boy, which addresses gender identity and the importance of acceptance and kindness. The teacher, whose name was withheld, then responded to a direct question from one child by saying that it was accurate that an individual can change their bodies. In further discussions, she told the class that a person may feel differently from how they physically appear.

The tribunal also heard of an incident in the class where a girl chose a hand-sanitizer bottle with a boy cut-out figure taped on it, and others shouted that she couldn’t use it. In response to the incident, the teacher showed the class a video in which preferred pronouns were discussed. Later, the children were arguing about gender-specific groupings and the teacher said “there is no such thing as boys and girls.”

The teacher said she misspoke, and later apologized to the class. She clarified her statement to the students by drawing a linear gender spectrum on the whiteboard that showed girls and boys on either end, with other potential options of gender in the middle.

The child known as N.B. informed her parents about these classroom discussions. According to a summary of the decision: “The applicant stressed at the hearing that this case is not about ‘turning back the clock’ for individuals who are trans-identified, but rather it is about safeguarding kids and putting up some ‘reasonable guardrails’ at the school board level to ‘rein in the excesses of gender ideology.’”

The applicant alleged that the girl was subjected to “ongoing discrimination by a series of lessons that denied the existence of the female gender and biological sex and undermined the value of identifying as female.”

However, the tribunal found no link between the allegations and the teacher’s comments or the school board’s policy that protects and supports transgender students.

“It is clear that what N.B.’s parents are seeking was not a clarification or correction for their daughter, but systemic changes to the school board’s policy and to an educational system that in their opinion should not allow such concepts as ‘gender fluidity’ to be addressed in the classroom,” Ms. Nichols wrote.

The application was filed with the tribunal in March, 2019. The hearing took place over six days this March.

Darcy Knoll, a spokesman for the Ottawa public school board, said on Tuesday that “the decision affirms the importance of nurturing learning environments for students of all ages that are inclusive and representative of all gender identities.”

Lisa Bildly, who represented the family, said in an e-mail statement that she was disappointed but not surprised by the decision.

“Respecting the inherent human dignity of gender diverse people, through inclusion and acceptance, is a very different goal than inculcating all children into thinking that their sex is a fiction or that they must have a gender identity,” she said, adding that schools are veering off the path of inclusion and headed “toward indoctrination.”

However, Amanda Dimilta, who practises education law on behalf of students who are experiencing barriers, said the decision “advances equity in education.” Ms. Dimilta was not involved in the case, but reviewed the decision.

“It affirms the importance of teaching inclusivity and diversity in classrooms, even to young students, and even when their families may have different beliefs,” she said.

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