Tribunal rules 'teachable moment' on gender identity did not breach Grade 1 student's rights

The Human Rights Tribunal of Ontario has dismissed an application by parents of an Ottawa Grade 1 student that unplanned lessons on gender identity breached the young girl's human rights.

A human rights lawyer said parents' concerns about the curriculum should not outweigh the protection and support of LGBTQ children in the classroom, in particular those who may have identities that differ from those of their classmates.

The decision, issued in late August, cleared the Ottawa-Carleton District School Board (OCDSB) of any breaches of the Human Rights Code.

This is the latest in a series of issues surrounding gender identity in the classroom that are now making their way through various tribunals and courts.

Adjudicator Eva Nichols, who presided over the case, took the exceptional step of stating in her decision that not only did the impromptu lessons on gender identity not breach any student's human rights, the systemic changes demanded by the parents — including that "the school board be directed to avoid the issue of gender fluidity" — amounted to requesting the board ignore Ontario's human rights laws on gender identity and gender expression.

"We're extremely disappointed with the result," said Pamela Buffone, the girl's mother, in a statement. "Our daughter continues to recall that the lessons were very upsetting."

The tribunal's decision noted several times that neither Buffone nor her husband were able to explain how they came to the conclusion that their daughter was upset by the lessons.

In response to followup questions from CBC, Buffone said when her daughter recounted what happened she was "visibly upset."

"She wasn't crying," said Buffone, "but she was clearly struggling with whatever had been taught in class."

During the hearing, Buffone described the discussions around gender identity at the school as "cultural colonization" and a method of "reprogramming a child's identity."

In their application, the Buffone's sought financial compensation and a direction from the tribunal that teachers must inform parents when a lesson on gender identity will take place.

They also wanted the OCDSB to ensure "classroom instruction not devalue, deny or undermine in any way the female sex and/or gender identity," and for the school board to change its approach to teaching anything related to gender, including avoiding gender fluidity altogether.

Buffone moved both of her children to a different school board the following year because she "had lost trust in the OCDSB."

In a statement, the OCDSB said the decision, "affirms the importance of nurturing learning environments for students of all ages, that are inclusive and representative of all gender identities."

"The district remains committed to supporting students, families and staff to navigate with dignity the many challenging conversations that can arise in promoting and protecting identity, human rights, and student learning," the school board added.

"Everyone is welcome at the OCDSB."

Ensuring children are supported

A human rights lawyer explained that a particular subject being broached in the classroom is not enough for the tribunal to step in and that the facts of the case don't amount to discrimination.

"I think this decision explains why simply having that as part of a curriculum is not a violation of somebody's human rights," said Shakir Rahim, who specializes in LGBTQ issues.

He underscored the importance of supporting people with gender identities that may be different from the majority of their peers, such as transgender children.

"It's certainly as much about the children and ensuring those children are protected and safe in the classroom as it is about parents and their concerns," he said.

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Lisa Bildy, the lawyer who represented the Buffones, said in a statement the decision was the result of "an irreconcilable clash of world views in our society right now."

"Respecting the inherent human dignity of gender diverse people, through inclusion and acceptance, is a very different goal than inculcating in all children the belief that their sex is a fiction or that they must have a gender identity," she added.

'Teachable moment' after classroom bullying

The Buffones' application was filed in March 2019, but the events in question occurred in January 2018.

According to testimony from the Grade 1 teacher, students had been instructed by a previous teacher to leave a bottle of hand sanitizer on their desks when they went to the bathroom. There were two such bottles, each bearing a sticker: one with the outline of a boy, and the other of a girl, as often depicted on public washroom doors.

The teacher noted one student was teased by other students after using the "wrong" bottle.

After removing the stickers, the teacher told the class that "a person can be one way physically, but may be different in their heart," according to the tribunal's decision.

The teacher, who was not named to avoid the possibility of the student and the school being identified, made use of classroom resources reserved for so-called "teachable moments."

These included the book My Princess Boy by Cheryl Kilodavis, which deals with gender expression, and a video titled "He, She and They," which addresses gender pronouns. During class discussion, one student said people could go to a doctor to change their bodies. The teacher confirmed this was possible.

At one point, the teacher told the students that "there is no such thing as boys and girls."

Buffone and her husband became aware of these lessons roughly two months later when their daughter — then six years old — said at the breakfast table that there were no such things as boys and girls, and that she did not want to be a "mommy" when she grew up and would prefer to have a dog instead.

Buffone requested a meeting with the teacher to express her concerns. Following this meeting, the teacher conducted a followup lesson to clarify her statements. She drew a gender spectrum on the board: a line with a boy on one end, a girl on the other, and several marks in between denoting other possible gender identities.

Sometime after this, the parents said they observed their daughter playing teacher, giving a similar lesson about the gender spectrum to her teddy bears.

The Buffones' application to the Human Rights Tribunal of Ontario alleged the school board engaged in "discrimination with respect to educational services, because of sex and gender identity."

Mother outspoken on gender issues

Buffone runs a website and Twitter account that criticize education and legal matters on child gender identities, particularly policies that recognize transgender and gender-diverse rights.

In her statement, she characterized the tribunal's decision as "further evidence that a new political dogma is being imposed on all of us, including six-year-old children in our education system."

"A girl can go to school knowing she's a girl and come home unsure of who she is," she said, "because schools are meddling with children's identities by completely disregarding biological reality as a relevant and important personal characteristic - now with the full support of the [Human Rights Tribunal of Ontario]."

The tribunal, for its part, wrote in its decision that "there were no allegations in the application that the school board's policy contravenes the [Human Rights Code]."