On August 25, 2022, the Human Rights Tribunal of Ontario dismissed an application by parents of a student who attended Grade 1 in one of the elementary schools of the Ottawa-Carleton District School Board (the “school board” or the “OCDSB”), in which they alleged that a teacher’s spontaneous lesson on gender identity breached their daughter’s human rights. In N.B. v. Ottawa-Carleton District School Board, Emond Harnden LLP successfully represented the school board before the Tribunal, which was tasked with considering what constitutes discrimination because of sex and gender identity under Ontario’s Human Rights Code (the “Code”). Adjudicator Nichols ultimately agreed with the OCDSB’s position that discussing gender identity, including gender fluidity, did not breach the student’s human rights, and dismissed the application.
Background
In January 2018, J.E.B. was a new teacher in a Grade 1 classroom at an OCDSB elementary school, in which N.B. was a student. In response to teasing in the class, she read the students a book entitled My Princess Boy, which addressed, among other things, gender identity, acceptance and tolerance. The book led to further discussion and, in response to a direct question by one of the students, J.E.B. said that it was true that people can go to the hospital to change their bodies.
Later, some children in the class shouted about a student in the class having left a bottle of hand sanitizer on their desk to indicate they had gone to the washroom, a practice started by the class’ previous teacher. There were two such bottles, one with an image of a traditional “boy” shape and one with a traditional “girl” figure, and the student, who was identified in the class as a girl, had chosen the “boy” bottle. After the children pointed this out, the teacher shared a video regarding the use of pronouns. When the children subsequently argued about the issue again and tried to arrange two gender-specific groupings within the class, the teacher stepped in, saying, “There is no such thing as boys and girls.” J.E.B. later acknowledged that she had misspoken with respect to the existence of boys and girls, and apologized to the class. In addition to other clarifications, she used a gender spectrum drawing, with boys on one end and girls on the other, to explain what she had meant.
After N.B., a cis-gender girl, advised her parents of what she had learned in the classroom two months previously, and later drew a gender spectrum on a whiteboard while playing school with her teddy bears, N.B.’s parents contacted the school and school board to express their significant disagreement with what had allegedly been said to the Grade 1 class. N.B.’s parents transferred her to a new school in a different school board for the next school year and, the following spring, filed their application with the Tribunal.
Positions of the Parties
The Tribunal was thus asked to consider whether N.B., as a Grade 1 student who strongly identifies as a girl, had experienced discrimination on the grounds of her status as a cis-gendered girl in the provision of educational services by the OCDSB.
In the school board’s view, N.B. did not experience adverse differential treatment giving rise to discrimination on the basis of sex or gender identity in her Grade 1 classroom.
For her part, however, N.B. (via her Litigation Guardian, being her mother), alleged that the classroom events had a significant adverse impact on N.B., such that she experienced direct discrimination arising from the content of the educational service with which she was provided, in breach of the Code. Before the Tribunal, N.B.’s parents alleged for the first time that their daughter had been “dehumanized, devalued and ashamed” by the information on gender identity that had been shared in the classroom.
Decision
Adjudicator Nichols found for the school board, concluding that N.B. had not experienced discrimination arising from alleged differential treatment by the OCDSB on the grounds of sex or gender identity, and also that a poisoned environment had not been created by her teacher’s comments on gender identity.
Essential to the Tribunal’s finding that N.B.’s Code-protected rights had not been breached was the fact that the teacher’s comments in the classroom referred to both boys and girls, and in no way singled out the applicant and/or the girls in the class. Both the teacher’s (inaccurate) statement that there was no such thing as boys and girls and her subsequent use of a linear gender spectrum drawing included all the children in the class, including cis-gender girls such as the applicant. To show that conduct has created a distinction based on a prohibited ground, the applicant had to have been able to establish a distinction based on her sex or gender identity that created a specific disadvantage for her in the classroom. It was not enough for the applicant to have simply stated that she is female, and that girls and women have suffered historical and cultural disadvantages; while that statement is true, it did not support the specific allegations made by N.B.
Also of particular relevance to the Tribunal was the fact that N.B.’s parents had offered no direct evidence of any actual impact or adverse effect of the above-described events on N.B. While they repeatedly used the term “dehumanized” to describe the impact of the events on their daughter, no evidence was entered to support their allegation. Similarly, no such observations were raised in the parents’ discussions with the teacher, principal, or superintendent; rather, in the course of those meetings, the parents focused, not on issues of sex or gender discrimination, but rather on the age-appropriateness of the material relating to gender that was taught in the classroom and the fact that parents are not informed when the concept of gender identity will be raised or addressed in a classroom. In accordance with long-standing Tribunal case law, Adjudicator Nichols noted that an applicant must provide specific evidence in support of an adverse impact, rather than simply making a bald assertion.
The Adjudicator went on to note that N.B.’s mother, who runs a website and blog, in which she has stated that current gender theory is “unscientific and is radical left-wing ideology,” seemed almost exclusively concerned with systemic issues relating to her personal disagreement with the school board’s policies on gender identity, rather than any specific impacts of those policies on her daughter. Of the applicant’s motives, Adjudicator Nichols stated the following:
[219] 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.
[…]
[221] […] 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.
Relatedly, Adjudicator Nichols noted that the remedies requested by the applicant, including that the school board entirely change its approach to teaching gender and sex and, in particular, avoid the issue of gender fluidity, would effectively amount to a request that the OCDSB ignore the Code and the Ontario Human Rights Commission’s policies on gender identity and gender expression.
In conclusion, after having considered all of the evidence presented, Adjudicator Nichols found, on the balance of probabilities, that the applicant had not experienced discrimination. Since the school board had not breached N.B.’s Code rights by exposing her and her classmates to information on gender identity and gender expression, the application was dismissed.
In Our View
Adjudicator Nichols’ decision is currently the leading case on gender identity in Ontario. Among other things, it confirms that protection and support of individuals who identify as transgender, including transgender students, does not amount to discrimination against cis-gendered persons. The decision is likely to be of interest to all employers, and especially those in the education sector.
For more information, please contact Raquel Chisholm at 613-940-2755.
