The following story has its source in an application filed before the Human Rights Tribunal of Ontario by Jason and Pamela Buffone, on behalf of their daughter “N,” against the Ottawa-Carleton District School Board for discrimination on the basis of gender and gender identity in contravention of the Human Rights Code.

In January of 2018, in a Grade One class at Devonshire Community Public School, part of the Ottawa-Carleton District School Board network, six-year-old N watched a YouTube video as part of her teacher’s lesson plan on gender.

N is the kind of child, her mother Pamela told me in a telephone interview, that adores school—or did until the particular morning that prompted this column. The video was entitled, “He, She and They?!?—Gender: Queer Kid Stuff #2.” The video contained statements such as, “some people aren’t boys or girls,” and that there are people who do not “feel like a ‘she’ or a ‘he,’” and therefore might not have a gender. The young teacher, whom I will refer to by her initials, JB, continued to teach gender theory throughout the semester. According to N’s feedback to her mother, JB told the children that “there is no such thing as girls and boys,” and “girls are not real and boys are not real.”

By mid-March, N’s parents could see the lessons were having an impact on their daughter, as she began spontaneously and repeatedly asking them why her identity as a girl was “not real.” She asked if she could “go to a doctor” about the fact that she was a girl. She said she was “not sure if she wanted to be a mommy.” (Ms Buffone explained to N that grown-up women had a choice, but was concerned that the subject was coming up in Grade One gender lessons.)

The Buffones were naturally alarmed by their daughter’s persisting signs of confusion, as she had never previously shown a single sign of discontent regarding her biological reality. Ms Buffone therefore met with JB in March to discuss the impact of the gender discussions on her daughter.

JB, they could see, was very committed to the teaching of gender fluidity as a reflection of “a change within society.” She told Ms Buffone that gender fluidity was the School Board policy, that some children are struggling with the idea that gender is binary and confirmed that the topic of sex change had come up for discussion. She did not appear unduly concerned about N’s personal distress, and did nothing to affirm N’s female identity.

The Buffones then contacted the school principal, Julie Derbyshire.

In a telephone call, Ms Buffone says, Ms Derbyshire explained that JB had initiated the lessons to accommodate a child in the class who had expressed interest in self-expression as the opposite sex. (There was in fact a child exhibiting symptoms of gender dysphoria in Grade One of that school, who was being teased on that account. But, according to Ms Buffone, as she later learned, the parents of the child did not want the issue to be addressed by lessons on gender; they merely wanted the other children to be taught to act respectfully and not to bully their child.) Ms Derbyshire did not offer to consult with the school’s “gender specialist” about affirmation of non-questioning students like N.

Determined to elicit a response that addressed the issue substantively, the Buffones pressed on, eventually meeting with the Superintendent of the School Board and the Curriculum Superintendent. According to the complaint, “The School Board did not agree to communicate with parents when sensitive discussions took place, nor did they agree to issue any directive or take corrective action in order to ensure that children of female gender identity were positively affirmed.”

At this point, feeling stonewalled at every step of the hierarchical ladder from bottom to top, the Buffones made the decision to enrol N at another school where, Ms Buffone tells me, she is doing well and where, she has told her family, she is happy she will not have a teacher who says that “girls are not real.” Last October, N reportedly told her mother, “This table is real, and this fan is real, and even if the fan was made out of cardboard, it’s still real.”

Stories related to gender identity in childhood usually have for their protagonist a child who is distressed over the disparity between her or his biological reality and their perceived gender. The scenario often presents educators as enlightened, affirming allies of the child, while the parents, behind the times, so to speak, resist affirmation and cause the child further anxiety. In these cases the injustice to the child seems pretty clear cut to many rights-attuned Canadians. The child’s right to express his or her gender identity trumps the parents’ right to oppose it.

Here we have the opposite case. N’s gender identity is—or was—seamless comfort in her biological skin. She had never questioned that comfort. Suddenly she was told to believe that at any moment, what she believes to be real—that she is a girl—may not be true. How very frightening that thought must be to a child who is not old enough to grasp the abstract concept of gender fluidity. Her parents are the allies here, and her educational environment is where she fails to find affirmation. Why could she not be accommodated as well as the questioning child? Why did this situation have to end up at a human rights tribunal?

It wasn’t, after all, an either-or choice, and a little compromise on the part of JB and her superiors would easily have defused the situation, and alleviated the Buffones’ concern. Why couldn’t JB have explained that discomfort with one’s gender identity does occur, but rarely (fact); that it is often a passing phase (fact); that non-conforming dress and play preferences in childhood are normal and only infrequently indicative of deep or lasting dissatisfaction with one’s biological sex (fact); that most children stop having these doubts when they are teenagers (fact); most important, that almost all children are perfectly happy being exactly what they are (fact) and those children should not worry that they are not “real” boys or girls. Where was the difficulty in saying these things? N would have been reassured, and the one child in the class who was experiencing gender confusion would not have been adversely affected.

The Buffones’ HRTO application concludes that JB “subjected N to ongoing discrimination on the basis of gender and gender identity, by a series of lessons that denied the existence of the female gender and biological sex and undermined the value of identifying as a female.”; ii) “The Principal and School Board perpetuated and reinforced the discrimination that N experienced in her Grade One classroom, as neither Ms. Derbyshire nor any school board official took any corrective action to remedy it.”

Their requested remedy is that the Tribunal order the Board i) to ensure that classroom instruction “not devalue, deny, or undermine in any way the female gender identity”; ii) to mandate teachers to  “inform parents when lessons on gender identity will take place or have taken place, including the teaching objectives and the materials that will be or have been used for such lessons”; and iii) to pay the Buffones $5,000.00 in general damages “to compensate for injury to dignity, feelings and self-respect caused by the discrimination.”

The School Board’s lawyer responded to the application with a request that the application be dismissed “on the basis that the Application has no reasonable prospect for success,” denying the allegations and promising to provide a “fulsome Response should the Tribunal not dismiss this matter by way of Summary Hearing.”

Citing another complaint against the Elementary Teachers’ Federation of Ontario, the response pointed to the Tribunal’s finding that the Tribunal did “not have the power to deal with general allegations of unfairness,” and that the facts, even if true, “do not engage any prohibit (sic) ground of discrimination as set out in the [Human Rights] Code.” Also noted was the fact that teachers’ right to teach gender identity is endorsed by the Minister of Education, and that “[t]he age-appropriateness of a classroom discussion does not engage a Code-protected prohibited ground.” In short, even if N was adversely affected by the teacher’s lessons, she has no grounds for redress according to the Human Rights Code.

How will this play out?

The School Board is taking a “letter of the law” approach. They are basically stipulating that the Buffones’ account of N’s experience is factual, but irrelevant. In other words, they don’t deny the lessons had an adverse effect on the child’s psychological well-being. They are simply saying that whether or not she has been adversely affected is not, legally speaking, grounds for a human rights complaint.

But the Ontario Human Rights Commission defines “discrimination” pretty broadly. In our interview Ms Buffone told me: “The Ontario Human rights Code states that a poisoned environment is a form of discrimination. We’re going to provide evidence that the manner in which [JB] was teaching the concept of gender identity resulted in a poisoned environment. The principal further exacerbated the situation in that the only option provided to us was to remove our daughter from the classroom for these lessons, which is exclusionary treatment.”

Will this be as persuasive an argument for the HRTO as it seems to me?

“This is an important case,” says Ms Buffone. “Our government seems to have given teachers carte blanche in terms of how they teach this concept [of gender identity]. If this is an example of how it can be taught, I think it’s in the public interest for the HRTO to weigh in on it. Teachers are providing a public service and have a duty of care to all of their students, just as the HRTO has a responsibility to all of Ontarians. I think this case is a good example of why we need to set ideology aside when dealing with human rights.” 

If the Buffones win their case, it will set a precedent that may have far-reaching consequences for the teaching of gender issues in Ontario’s elementary schools. The HRTO will be very conscious of the potential fallout from their decision. For that reason, the cynic in me fears the dice are loaded against the Buffones. I very much hope to be proven wrong.