Understanding the legal rights against discrimination due to gender and/or sexuality is an important aspect of confronting and preventing anti-2SLGBTQ+ hate. It provides an effective rebuttal to many queerphobic arguments that are part of this hateful ideology. While these arguments are often portrayed as personal beliefs or disagreements, it is important to reframe these discussions around upholding human rights. Generations of activists have fought hard to ensure these rights are existent in Canada so that there is an institutional power behind the protection of 2SLGBTQ+ individuals.
Section 15 of the Canadian Charter of Rights and Freedoms states “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination.” While sexual orientation is not explicitly mentioned in the law, legal precedent has established that discrimination based on sexual orientation violates Section 15 of the Charter.
The Canadian Human Rights Act specifically includes sexual orientation, gender identity, and gender expression in its protections:
“All individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices.”
The Supreme Court has also ruled that schools can be held legally responsible for the discriminatory actions of students if they fail “to provide an educational environment that [is] free from discriminatory harassment.” Federal legislation clearly outlines the rights of 2SLGBTQ+ students to access education spaces that recognize their identity and are free from discrimination. Schools have an obligation to uphold these rights and are open to legal liability if they do not ensure that education spaces are free from discrimination.
The Ontario Human Rights Code also specifically includes sexual orientation, gender identity, and gender expression in its protections against discrimination. This legislation also created the Ontario Human Rights Commission (OHRC) which is tasked with preventing “discrimination through education, policy development, public inquiries and litigation.” The OHRC has written specifically about policies and practices that organizations should use to help them legally fulfill their duties under the Ontario Human Rights Code. The OHRC has recognized the increased targeting of education officials who are seeking to adhere to these policies. In their statement, they specifically reference events at WRDSB, and emphasize that education officials have a “legal duty to ensure that education is provided in [a] manner consistent with the [Ontario Human Rights] Code.”
More specifically, the Education Act provides the legal foundation for education in Ontario and also includes duties that the education system has. School boards are legally required to “develop and implement an equity and inclusive education policy.” They must also “promote a positive school climate that is inclusive and accepting of all pupils, including pupils of any… sexual orientation, gender identity, gender expression.” The equity and inclusion policies developed by school boards have more details on the practical implications of upholding 2SLGBTQ+ rights in schools. Policies from the WRDSB will be summarized here as an example though individual policies may differ between school boards.
WRDSB’s Procedure 1235 outlines practices for the inclusion of gender-diverse individuals. It ensures that a student’s right to privacy includes their gender identity and states that “A school shall not disclose a student’s gender status to the student’s parent(s)/guardian(s) without the student’s explicit prior consent.” This policy is especially important because of the increased risk of domestic violence, abandonment, and/or suicide that students may face if their identity is disclosed in an unsupportive household. This document mentions the need for positive representation of transgender people in the resources and guest speakers brought into schools. Access to gender-affirming washrooms, changerooms, and other accommodations are also covered. Many of these policies correspond directly to the Best Practices Checklist provided by the OHRC.
There is a robust system of laws and policies from multiple levels of government in Ontario that require the rights of 2SLGBTQ+ individuals to be protected. While school boards are often the focus of anti-2SLGBTQ+ organizing, their control over these policies is limited. Explaining board-specific policy in the context of a national framework of 2SLGBTQ+ rights helps maintain the focus on human rights.
Outside this national framework, there are international human rights treaties that Canada has signed on to. One particularly important one is the UN Convention on the Rights of the Child (UNCRC). When dealing with anti-2SLGBTQ+ hate in schools, the rights of children need to be centred. Children are often left out of decisions that deeply affect them so it is essential that their rights are ensured. The UNCRC mandates that “the best interests of the child shall be a primary consideration” in all actions taken by institutions.
Article 12 declares that children should be able to express their “views freely in all matters affecting the child.” They are also given the right to be heard in any proceedings that affect the child. Article 13 extends these rights to be able to “seek, receive, and impart” these views. 2SLGBTQ+ children must be allowed to have a voice in decisions made about them and their right to express themselves should not be limited.
Articles 28-30 outline the rights of children in accessing education. Explaining these articles, the UN insists that this education is “child-centred, child-friendly and empowering.” The education system needs to uphold this right by providing an environment where all students can experience empowerment of who they are.
Article 16 outlines a child’s right to privacy as well as protection from attacks on their reputation. 2SLGBTQ+ children deserve to have personal details remain private unless they choose to disclose them. Schools must also protect these students from attacks on their reputation and identity.
Article 17 establishes the right of children to access information, especially sources “aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health.” This article specifically mentions the distribution of children’s books. 2SLGBTQ+ students have a right to access books and resources that reflect their identities and the education system needs to ensure that these are available. The only restriction that should be placed on this access is to protect the safety of the child. Queer books and information are not a safety risk and should not be removed from schools.