Court hearing underway to challenge repeal of Ontario sex-ed curriculum

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WATCH ABOVE: The battle over the sexual education curriculum taught in Ontario schools is now being heard in court. Travis Dhanraj reports – Jan 9, 2019

TORONTO – 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.

READ MORE: Ontario fights legal challenge over provincial government’s decision to repeal sex-ed curriculum

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

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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.

READ MORE: 1st day of consultations show overwhelming support for modernized Ontario sex-ed curriculum

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 “curriculum-based 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.”

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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.

READ MORE: Sex-ed curriculum consult website flooded by ‘certain groups’ who may have skewed results: Ford

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.

ETFO president Sam Hammond said outside court that teachers are fighting for students.

“We are here today on behalf of the children in Ontario public elementary schools, who have the right to be taught a current curriculum that stresses safety and inclusivity,” he said.

Michael Bryant, head of the CCLA and former Liberal attorney general, said the government is not being inclusive of LGBTQ students.

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READ MORE: Ontario schools reverting to old sex-ed curriculum this fall, education minister says

“What the government did is it took out any reference to a group of Canadians who are real and who have lives and who deserve to be included in this curriculum and the only reason that they’re being excluded is because the government thinks that that content is age inappropriate and that’s just homophobic,” he said.

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 sex-ed curriculum, but Ford suggested “certain groups” flooded the process in its early stages.

– with a file from Shawn Jeffords.

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