Canada: What Does The Court Decision On The Repeal Of The Sexual Education Curriculum Mean?

Last Updated: March 18 2019
Article by John Schuman

On February 28, 2019, the Ontario Divisional Court released its decision on the constitutional challenge to the provinces repeal of the 2015 Sexual Education Curriculum brought by the English Public Teachers Union and the Canadian Civil Liberties Association and others. While the Court dismissed the challenge, the decision does not prohibit teachers from teaching the 2015 Sexual Education Curriculum. To the contrary, to some extent, it requires teachers to teach at least some aspects of the 2015 curriculum or lessons that are very similar to it Teachers at publicly funded schools will want to consult with their Board and their union about their rights and obligations. The decision does not apply to p rivate school teachers as they do not have to follow the Ontario Curriculum at all. This page will provide a general overview and explanation of the Divisional Court's decision about what sexual education curriculum is in place in public schools.

The challenge to the Ontario Government's repeal of the 2015 Sexual Education Curriculum, resulting in the return to the curriculum as it existed in 2010, can be summarized as follows:

  1. The repeal of the curriculum violated teacher's freedom of expression because the government has threatened to punish teachers who taught the 2015 curriculum.
  2. A prohibition on teaching topics such as "consent" and alternative lifestyles threatened the lives and the security of the persons of students, particularly students who could be harmed by a lack of understanding of the meaning of consent amongst students and a lack of information about alternative lifestyles that could result in harm to student who either have a LGBTQ+ lifestyles or are from families that do.
  3. A prohibition on teaching alternative lifestyles and focusing on heterosexual relationships offends the equality rights guaranteed in the Canadian Charter of Rights and Freedoms.
  4. The repeal of the curriculum particularly threatens the security of the person and equality rights indigenous persons. As a result of the residential schools system and the "Sixties Scoop", it is more important for indigenous children to learn about consent, bodily integrity and sexual assault at a young age to address the significantly higher rates of sexual violence faced by indigenous children.
  5. The repeal of the sexual education curriculum unreasonably discriminated on elementary students on the basis of age and deprived them of information that is important to their wellbeing due to their age without a sound basis for doing so.

The Court did not find any violations the Canadian Charter of Rights and Freedoms, nor of the Ontario Human Rights Code. But it recognized the validity of the above concerns. However, it said that the Ontario Government was not preventing teachers from covering the "new" topics in their classrooms. Moreover, the Ontario Human Rights Code may actually require teachers to cover these topics to avoid discrimination against disadvantaged groups who could be harmed by a lack of information on these topics.

Importantly, despite some initial "ill-considered pubic statements", the Ministry of Education is not prohibiting teachers from teaching topics in the 2015 Sexual Education Curriculum. The 2010 Sexual Education Curriculum does not prohibit teachers from covering the additional topics in the 2015 curriculum. Further, there will be no repercussions for teachers who do teach the new topics. To the contrary, teachers may be required to teach topics found in the 2015 curriculum.

Despite the repeal of the 2015 sexual education curriculum, the law may require teachers to teach elementary students about consent, body parts, LGTBQ+ lifestyles, the risks of technology, sexual violence and sexually transmitted infections. This is because:

  1. Nothing in the 2010 Curriculum prohibits teachers from covering these topics.
  2. The Ministry's Policy and Procedure Memorandum (a directive from the Ministry of Education to publicly funded school boards) number 119 requires boards to have an equity and inclusive education policy that is comprehensive and covers the grounds of discrimination in the Ontario Human Rights Code.
  3. PPMs 128. 144, and 145 require school to ensure a "safe positive and inclusive school climate".
  4. The 2010 Curriculum requires that sexual education be provided in an accepting and inclusive manner that reflects the diversity of the student population and ensures that all students feels safe, comfortable and accepted.
  5. The Ministry of Education's position is that how teacher's meet the above expectations is a matter of the teacher's professional judgment and discretion.
  6. The 2010 Curriculum allows teachers to "amplify" instruction to include current examples.
  7. Section 169.1 of the Education Act and the section 1 of the Ontario Human Rights Code require teachers and school environments to be inclusive, tolerant and respect diversity.
  8. The Ontario Human Rights Code requires to protect gender identity and gender diversity.

The Court did hold that a government, as part of its policy decisions, is permitted to modify the Provincial Curriculum and the Canadian Charter of Rights and Freedoms does not require a particular curriculum. Since the concerns raised by the challenges have otherwise been addressed by Ontario Law to ensure that students are protected from harm, there is no basis to set aside the Government's decision to repeal the sexual education curriculum.

Despite all the rhetoric from the Provincial Government about repealing the 2015 sexual education curriculum, Ontario Law and Ontario Ministry of Education Policy, actually require teachers to continue to cover the "new topics" in the 2015 curriculum. The curriculum just does not provide as much guidance on how to cover those topics, so teachers may actually have to refer to the 2015 curriculum, which teachers are permitted to do.

The repeal of the 2015 sexual education curriculum was not unconstitutional because Ontario Law still requires teachers to cover the "repealed topics" with elementary school students. The Ministry of Education is just not explicitly telling them how to do so.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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