Wednesday,
January 30, 2019
Dear
Mr. Ford,
[1]
I am writing in vain, given present litigation of this
issue, to respectfully ask that you
desist from your defense of the unconstitutional
reversion, (in part) to the 1998 sexual education curriculum.
[2]
Your actions exclude
gender and sexual minority (GSM) students, perpetuating historical disadvantage and stereotypes. You also denigrate persons
coming from GSM families. By deliberately barring their familial
models from the curricula of public
schools, you send a clear message that
those who identify as a GSM and are in a GSM
family, are less worthy of equal respect and concern. You communicate that they and their cultural practices are not
welcome in Ontario’s public schools.
[3]
I am a doctoral student at the University of Ottawa,
who specializes in the role of shame in litigation regarding religious freedom
as it intersects with sexual orientation and gender diversity. I analyze how shame has shaped GSM identities,
often for the worse, and contributed to maladaptive behaviour, thereby limiting
their equal participation in society. Consequently, I am professionally and (as I shall argue below) personally
uniquely qualified to offer you a detailed analysis of this problem. Specifically,
I criticize how misogyny is an integral
part of (hetero)sexism (the belief or implicit assumption that cross-sex
attraction and a heterosexual orientation is the natural, preferred, and
superior manifestation of erotic desire and romantic pairing). (Hetero)sexism
has reinforced historic patterns of male violence within settings such as law,
education, healthcare, and the Armed Forces.
[4]
GSM students have
felt (and continue to experience) shame in public education. Many of them do
not have the familial support of other minority groups, whose traditions and
(racialized) differences are taught by friends,
parents, guardians, and relatives. As such, it is particularly important that
public schools provide a positive and shame-free environment. This setting
ensures that GSM students reach their full potential.
[5]
Current research
in the social sciences suggests that shame is not a brief experience that
merely is psychological, a part of growing up, or something with which everyone
must deal. Instead, shame is a
psychosomatic phenomenon. Repeated experiences of toxic shame adversely influence
our emotional responses, brain structure, and development, as well as bodily comportments.
Not only does this contribute to the subordination of marginalized groups, but
it also places them at increased risk of heart disease, (sexual) assault,
stroke, depression, dissociation, posttraumatic stress disorder, and conflicts
with the law.
[6]
Three main
theories explain the wrongfulness of discrimination. It is essential to connect
all of these to shame. The first holds that it is wrong for a government actor,
or private official who must follow public anti-discrimination legislation, to
manifest animus toward a particular group in specified contexts. The second relates
discrimination to dignitary harm. The third argues that discrimination is a
limitation on a person’s protected core of freedoms concerning which they
should not have to deliberate when receiving public services. Alternatively, we may call deliberative
liberties potential attributes the condition of whose manifestation the state
must protect. I shall deal with these
three exceptions of discrimination sequentially.
[7]
The Ontario Court
of Appeal ruled in ET v
Hamilton-Wentworth District Schoolboard (2017) that the previous curriculum was
constitutional. Also, it stated that the religious freedom of parents who
object to the teaching of gender and sexual diversity was not engaged (at para
95). Consequently, it is difficult to see
how reversion to the old curriculum is not an endorsement of those who use the
debate over sex education to express thinly veiled animosity towards GSM’s and
their practices.
[8]
We should examine discrimination
claims in their context to evaluate the extent
of the discriminatory impact properly. In this situation, the
discriminatory nature of “sexual traditionalism" becomes apparent when we
consider the long-standing theological-medical-legal assumption that GSM’s, and
mainly, their alleged deviant cultures and sexuality, are a unique threat to
children, the (intellectually) disabled, and persons otherwise thought of as innocent. As well, and especially concerning anal-sex,
it is imperative to consider the entrenched disgust anxieties that have
animated opposition to GSM practices and identities. Such fears paint those who
transgress the cross-sex penetrative sexual paradigm as improperly gendered,
psychologically disturbed, cruel, evil, and subhuman. Taken together, these
erroneous stereotypes and prejudicial assumptions produce a cone of silence
circumscribing discourses of anal-sex and other GSM activity. A liberal society
committed to human dignity (such as Ontario professes to be) must eradicate
this cone of silence.
[9]
It is true that a liberal society must make room for differing
perspectives regarding matters of ultimate concern, but a genuinely free
society cannot survive without a fundamental commitment to the equality of all
citizens. The equal worth of all citizens is a constitutional value that the
state always has an interest in promoting. It should suffuse the curricula of
public schools. It ought to be the task of public schools to teach a collective
ethos in keeping with the evolving norms of our liberal democracy. This
democracy should never surrender the noble aspiration to treat citizens with
equal respect and concern. By deliberately marginalizing gender and sexual
diversity after the creation of a more inclusive and contemporary curriculum, your government sends a subtle message that
Ontario believes GSM’s and GSM cultures harm children.
[10]
Moreover, your noncompliance website seeks to punish
educators who, perhaps at the request of a student, wish to discuss GSM’s in
their classroom. The Canadian Supreme Court case of Chamberlain
v Surrey District Schoolboard (2002) discussed
similar problems. Some parents feared the possibility that their children may
encounter material discussing same-sex-parented-families in kindergarten. After
noting that the concerns of religious parents were also crucial to
decision-making, former Chief Justice MacLachlan (speaking for the majority) concisely
stated that "tolerance is always age-appropriate” (at para 69). In
passing, your teacher reporting strategy causes
an unnecessary chilling effect upon freedom of expression, which the Charter also prohibits.
[11]
In addition to
endorsing the sentiments of the former Chief Justice, I would add that there is no valid nontheological ground upon which
one may object to GSM’s and GSM behaviour.
Consequently, by adopting the views of (principally religious) interest groups,
your government offends the constitutional guarantee of freedom from religion,
while attempting to protect freedom of religion. This contradiction, in my respectful view, is an absurd result.
[12]
Were I to accept the doubtful proposition that this
decision was not prejudicial, your
lawyers ought to agree with me that
Canadian discrimination law examines the effects of an impugned measure and
strives to achieve substantive equality rather than formal equality. This
commitment to substantive equality obliges legislatures and reviewing courts to
scrutinize the impact of a legislative distinction or omission in its entire
context. A substantive and contextual equality analysis
has been the governing approach for 29 years (Andrews v Law Society of British Columbia, 1989). Moreover, in Vriend v
Alberta (1998), the Canadian Supreme
Court determined that fear of and an environment of sexual orientation
discrimination is equivalently objectionable to direct discrimination. This environment may cause persons to conceal their
true sexual (and gender) identity. Such circumstances often create unnecessary
shame and fractured self-images (at para 102).
[13]
Parents have the
right to oversee their children’s education.
Nonetheless, in various circumstances, especially relative to the age of
the children, these (potentially GSM) children have overriding rights. They
have a right to receive a sexual education that is relevant to their circumstances.
This education should give Ontario’s children the tools required to live their
identities safely in the modern world. Failure
to provide this pedagogical culture to (GSM) students violates their
dignity and equality rights. Ontario’s
(GSM) students are entitled to raise a question related to their individual needs
and identities without fear of (tacit) reprisal. It does not send the message
that GSM’s are worthy of equal respect and concern when teachers are encouraged
to celebrate, and provide their students information concerning, Diwali,
Hanukkah, Kwanzaa, National Indigenous Peoples Day, or the constitutional gains
of the disabled, while they are prohibited, on pain of professional and
possibly legal sanction, from discussing GSM sex. To the contrary, the message is
frankly Orwellian. All minorities are
equal, but some minorities are more equal
than others.
[14]
All children, and
particularly GSM ones, have the right to a safe school environment free from
harassment, (hetero)sexism, intimidation, and violence. Repeated studies show
that bullying is a dangerous and systemic problem in North America's public
schools. A hands-off approach to heterosexual privilege, GSM bias, and GSM
bashing does not amount to state neutrality. Instead, it merely allows the
unjust (hetero)sexist status quo to continue. This environment has an adverse
pedagogical effect and detracts from academic outcomes of GSM students,
worsening their pre-existing disadvantage. Specifically, it aggravates their
increased risk of suicide, substance abuse, psychiatric difficulties, and
homelessness. In aggregate, these circumstances diminish the dignity of GSM and
their allies.
[15]
Viewed in context,
one can quickly ascertain that sex-education reversion violates the
deliberative freedoms of GSM students in two ways. First, silence in the
classroom denies GSM students opportunities they otherwise would have had to
understand, cultivate, express, and explore their sexual orientation and gender
identity in an inclusive environment, thereby hampering their ability to
develop these capacities and traits later in life. Second, silence concerning GSM
sexuality and gender (expression/identity) does not constitute neutrality,
especially as GSM students experience this false neutrality. It limits their
deliberative freedoms; for it requires them to
contemplate (possible reactions to) there
GSM identities, when they are receiving a public education. Education is a context in which they should
not carry extra deliberative burdens (that is, in this specific situation, the
psychological pressure of passing as straight by conforming to the
(hetero)sexist prejudice inherent in the relevant sections of the 1998
curriculum)
[16]
Discrimination
claims also must be examined on an intersectional basis. Your (in)actions have adverse impacts upon
GSM’s of colour, transgender persons, and or GSM’s with disabilities, many of
whom confront increased systemic barriers. Barriers to accessing culturally
competent sexual education mean that you
are worsening the harm done to some of the most vulnerable members of our
society. For instance, many persons with disabilities are thought of as asexual
by peers and family. They are also disproportionately excluded from cultural
settings in which we exchange sexual knowledge more freely. For many disabled
students, especially those with a marginalized gender (identity) or sexual
orientation, public education is a key, if not the only, service that facilitates
their right to access accurate information concerning gender and sexuality.
[17]
I am passionate concerning eradicating (hetero)sexism
in schools; for I had the horrendous experience of being a high school student
from 2004-8. My journey in public education
gives me personal knowledge of the old
curriculum. I came out as a gay man in
grade 9. I also did public speaking
engagements concerning (hetero)sexism in education across Ontario. Additionally, I
have cerebral palsy and use an electric wheelchair for mobility. Thankfully, my disabilities shielded me from most direct physical violence, though
friends and colleagues recount their numerous bashing stories from high school.
For the most part, I merely suffered
severe ostracism and practices of pedagogical silence around GSM sexuality.
These circumstances made the segregation I felt a form of pedestrian torture.
[18]
Nevertheless,
I used my
academic skills to challenge the (hetero)sexism of high school education,
especially in rural southern Ontario in which I spent my childhood and
adolescence. Fortunately, I had several supportive teachers and
educational assistants who provided enrichment material related to male
homoerotic literature and philosophy, supported my
early efforts to begin a gay-straight alliance, establish safe classrooms for
GSM students, and demand my high school's
harassment and anti-discrimination policy include sexual orientation as a
prohibited ground of bullying. Despite these efforts, throughout high school, I was chronically depressed, and without
supportive faculty — at that time, merely owing to good fortune — I likely would have committed suicide. When the
new sex education curriculum came into effect, I
had the faintest hope that future generations of children would not have to
experience the agony that elementary and high school sometimes is for GSM
students. Alas, on this and a mounting number of other disquieting instances, your government has lessened my faith in democracy.
[19]
You will likely claim you
are merely enacting the will of the electorate and that the Constitution does
not mandate a specific form of sex education. Like other claims of your government, this is only partially
correct. The Constitution does not often proscribe government action.
Nevertheless, once the government has chosen to provide a service or benefit,
such as education, you must do so
following the Constitution. Consequently, you would
be free to give no sex education; yet once you
have chosen to provide sex education, you
must do so in a way that does not have an adverse impact on gender and sexual
minorities. Applying the ruling in ET, the government cannot discharge its onerous
burden (under section 1 of the Charter)
to provide a compelling reason for this rights infringement. Also, the Supreme
Court of Canada has repeatedly held that a government action that discriminates
for a bad faith purpose, like the curriculum reversion in question, cannot be
justified under section 1 of the Charter.
[20]
In closing, I raise a practical but critical problem. I have been volunteering at a sexual health
clinic for some time. During my tenure, I have been shocked by the ignorance of persons, regardless of their sexual orientation
or gender (identity), concerning the most basic of information related to
sexual health, informed consent, and harm reduction. On this ground alone, Ontario’s
students deserve a sexual education curriculum that will adequately prepare
them to navigate the complexities of today’s erotic world safely. This
education should also give them the knowledge they require to make choices that
reflect their diverse values. For the
preceding reasons, I respectfully ask
that you cease from your current courses of action and reinstate
the changes made to the health curriculum by previous governments.
[21]
I would happily provide references to secondary
literature upon request, but as your time
is valuable and this letter is already lengthy, I
thought I would spare you the drudgery of footnotes. Thank you for your
time and thoughtful consideration of my
arguments. I look forward to your response.
I am yours Respectfully,
Connor Steele
