On August 25, 2022, the Human Rights Tribunal of Ontario dismissed a request from the parents of a student attending grade 1 at one of the elementary schools of the Ottawa-Carleton District School Board (the “Board” or the “OCDSB”), in which they alleged that a teacher’s spontaneous lesson on gender identity violated their daughter’s human rights. In N.B. v. Ottawa-Carleton District School BoardEmond Harnden LLP successfully represented the school board before the Tribunal, which was asked to consider what constitutes discrimination based on sex and gender identity under Ontario law human rights code (there “Coded”). Arbitrator Nichols ultimately accepted the OCDSB’s position that discussing gender identity, including gender fluidity, did not violate the student’s human rights and denied the claim.
Background
In January 2018, JEB was a new teacher in a Grade 1 class at an OCDSB elementary school, in which NB was a student. In response to teasing from the class, she read the students a book called my princess boy, which dealt with, among other things, gender identity, acceptance and tolerance. The book led to further discussion and, in response to a direct question from one of the students, JEB said it was true that people could go to hospital to change their bodies.
Later, some children in the class shouted that a student in the class had left a bottle of hand sanitizer on his desk to indicate that he had gone to the bathroom, a practice started by the former class teacher . There were two such bottles, one with a picture of a traditional “boy” shape and one with a traditional “girl” figure, and the student, identified in the class as a girl, chose the bottle “boy”. After the kids pointed it out, the teacher shared a video regarding the use of pronouns. When the children again argued over the issue and tried to organize two gender groups within the class, the teacher intervened saying, “Boys and girls don’t exist. JEB later admitted that she misspoke about the existence of boys and girls and apologized to the class. Along with other clarifications, she used a drawing of the gender spectrum, with boys at one end and girls at the other, to explain what she meant.
After NB, a cisgender girl, told her parents about what she had learned in class two months before, then drew a gender spectrum on a whiteboard while playing school with her teddy bears, the NB parents contacted the school and the school board to express their strong disagreement with what was allegedly said to the Grade 1 class. The NB parents transferred her to a new school in another school board for the next school year and the following spring filed their application with the Tribunal.
Positions of the Parties
The Tribunal was therefore asked to determine whether NB, as a Grade 1 student who strongly identifies as a girl, had been discriminated against because of her status as a cisgender girl in the provision of educational services by the OCDSB.
In the school board’s view, NB did not experience adverse differential treatment resulting in discrimination on the basis of sex or gender identity in its Grade 1 classroom.
For her part, however, NB (through her litigation guardian, being her mother), alleged that the events in class had a significant negative impact on NB such that she suffered discrimination. arising from the content of the educational service provided to him. , in violation of the Coded. In court, NB’s parents alleged for the first time that their daughter had been “dehumanized, devalued and shamed” by information about gender identity that had been shared in class.
Decision
Arbitrator Nichols agreed with the school board, finding that New Brunswick had not been discriminated against as a result of differential treatment alleged by the OCDSB on the basis of sex or gender identity, and also that a poisoned environment had not been created by her teacher’s comments about gender identity.
Essential to the Tribunal’s finding that NB Coded-the protected rights had not been violated was the fact that the teacher’s comments in the class were aimed at both boys and girls, and in no way aimed at the petitioner and/or the girls in the class. The teacher’s (inaccurate) statement that there were no boys and girls and her subsequent use of a line drawing of the gender spectrum included all children in the class, including cisgender girls like the applicant. To demonstrate that a conduct created a distinction based on a prohibited ground, the applicant had to have been able to draw a distinction based on her sex or gender identity that created a specific disadvantage for her in class. It was not enough for the applicant to simply state that she was a woman and that girls and women had suffered historical and cultural disadvantages; while this statement was true, it did not support the specific allegations made by NB
The fact that NB’s parents provided no direct evidence of any real impact or negative effect of the events described above on NB was also particularly relevant to the Tribunal. Although they have repeatedly used the term “dehumanized” to describe the impact of the events on their daughter, no evidence has been filed to support their claim. Similarly, no such observations were raised during the parents’ discussions with the teacher, principal or superintendent; on the contrary, during these meetings, parents focused not on issues of sex or gender discrimination, but rather on the age appropriateness of the gender-related material taught in the classroom and on the fact that parents are not informed when the concept of gender identity will be introduced or discussed in a classroom. Consistent with the Tribunal’s long-established case law, Arbitrator Nichols noted that a claimant must provide specific evidence to support an adverse effect, rather than simply making a mere assertion.
The arbitrator went on to note that NB’s mother, who runs a website and blog, in which she said current gender theory is “unscientific and constitutes radical left-wing ideology”, seemed almost exclusively concerned by the systemic issues related to his personal disagreement. with the school board’s policies on gender identity, rather than the specific impacts of those policies on her daughter. Among the plaintiff’s reasons, Arbitrator Nichols stated the following:
[219] Clearly, this demand is ultimately not just or even primarily about the NB experience in the Grade 1 classroom, but about adults’ desire to create systemic changes that, if implemented implementation, would be contrary to the Code, the policies of the Commission and the jurisprudence of the Tribunal.
[…]
[221] […] It is clear that what NB parents are looking for is not clarification or correction for their daughter, but systemic changes to school board policy and to an education system which, in their opinions, should not allow concepts such as “gender fluidity” to be addressed in the classroom.
Along the same lines, Arbitrator Nichols noted that the remedies sought by the plaintiff, including that the school board completely change its approach to teaching gender and sex and, in particular, avoid the issue of gender fluidity, would effectively be tantamount to asking the OCDSB to ignore the Coded and the Ontario Human Rights Commission’s policies on gender identity and gender expression.
In conclusion, after reviewing all of the evidence presented, Arbitrator Nichols concluded on a balance of probabilities that the claimant had not been discriminated against. Since the school board had not violated the Coded rights by exposing her and her classmates to information about gender identity and gender expression, the claim was denied.
In our vision
Arbitrator Nichols’ decision is currently the leading gender identity case in Ontario. Among other things, it confirms that protecting and supporting people who identify as transgender, including transgender students, does not discriminate against cisgender people. The decision is likely to be of interest to all employers, and in particular those in the education sector.
