Court dismisses charter challenge against Ontario sex-ed curriculum

A person holding a sign protesting the repeal of the sex-education curriculum is seen.

TORONTO -- An Ontario court dismissed a legal challenge Thursday from elementary teachers and a civil liberties group over the Progressive Conservative government's repeal of a modernized sex-ed curriculum.

The challenge from the Elementary Teachers' Federation of Ontario and the Canadian Civil Liberties Association argued that changes made by the government infringed teachers' freedom of expression and put students at risk by failing to be inclusive.

The Tories repealed a 2015 curriculum from the previous Liberal government that included lessons warning about online bullying and sexting, as well as parts addressing same-sex relationships and gender identity.

A Divisional Court ruling released Thursday noted that it is the role of elected officials, not the courts, to make legislation and policy decisions.

Government lawyers said teachers were allowed to go beyond what is in the new curriculum, the court noted, and there was no evidence of a teacher being disciplined for doing that. Schools are currently using an interim curriculum based on a version from 1998.

"Nothing in the (interim) curriculum prohibits a teacher from teaching any of the topics in question, which include: consent, use of proper names to describe body parts, gender identity and sexual orientation, online behaviour and cyberbullying, sexually transmitted diseases and infections," the three-judge panel wrote.

ETFO's lawyer had said there might not have been a legal challenge if Premier Doug Ford hadn't also issued a warning to teachers who said they would continue to use the now-scrapped version of the curriculum.

Some of the public statements made were "ill-considered," the court said, but did not constitute an infringement of the charter.

Education Minister Lisa Thompson said after getting feedback from public consultations on the health and physical education curriculum, a new one will be ready for the fall.

"I think it's going to be safe to say that there were opportunities to introduce even more realities in terms of what students face today," Thompson said. "Cyberbullying, consent, human trafficking -- those are all issues that we have heard through our consultation that parents want to be addressed."

The Liberal curriculum included lessons on cyberbulling and consent.

Thompson would not say specifically if gender identity would be part of the new curriculum.

The Canadian Civil Liberties Association called it "a crummy day for equality" and said they intend to appeal.