IN THE MANITOBA HUMAN RIGHTS COMMISSION A COMPLAINT OF DISCRIMINATION UNDER THE Ill/1N1 OBA HUMAN RIGHTS CODE MICHELLE MCHALE and KAREN PHILLIPS, Complainants, -and? HANOVER SCHOOL DIVISION and the HANOVER SCHOOL DIVISION BOARD OF TRUSTEES, Respondents. WRITTENT STATEMENT IN SUPPORT OF A COMPLAINT OF DISCRIMINATION PUBLIC INTEREST LAW CENTRE LEGAL AID MANITOBA 200 393 Portage Avenue Winnipeg, MB R3B 3H6 ALLISON ENSKE KATRINE DILAY Phone: 204?985?8545 204-985-5220 Fax: 204-985-8544 E?Mail: afenske@pilc.mb.ca/ kdilay@pilc.mb.ca Written Statement in Support of a Complaint of Discrimination Page 1 of 5 Summary 1. This complaint addresses the fundamental rights of children to a public education free from discrimination. students and students with parents or family have a right to feel safe, included and supported in their school programs and experiences. The provision of these services and programs cannot be done in a discriminatory manner. 2. The practices and actions of the Hanover School Division (HSD) and the Hanover School Division Board of Trustees (Board) have effectively excluded sexual orientation and gender identity from discussion in elementary and middle years classrooms. This is discriminatory and a breach of The Human Rights Code?2 (Code). 3. This discrimination is compounded by the inclusion of sexual orientation as a ?sensitive topic? in HSD policies and by the disresPectful words and actions of specific Board trustees in dealing with the substantive issues raised in this complaint. Description of the Parties 4. Michelle McHale and Karen Phillips (Complainants) are common-law partners and parents in a blended family. Michelle McHale is the mother of children currently attending or who have attended public school within HSD. Karen Phillips' own child attends school in another Manitoba school division. 5. HSD is a school division as defined in The Public Schools Act, C.C.S.M. c. P250 (Act). It is located in southeast Manitoba and is the 8m largest school division in the Province. The Board is a school board as defined in the Act. The Board is a democratically elected body consisting of 9 trustees across 4 wards. Together, HSD and the Board are responsible for overseeing the planning and delivery of educational programs for over 7700 students in 18 schools.3 Bullying within HSD 6. In early 2016, Ms McHale became aware that one of her children was being bullied in a HSD school due to living in a household with two mothers. 7. On or about March 1, 2016, Ms McHale spoke with her child's school principal in an attempt to address the bullying. At this time, Ms McHale was informed by the school principal that no information regarding ?same sex relationships, attractions or gender identity? was to be included in any of the elementary or middle schools in HSD. The Complainants were concerned that these exclusions were contributing to an unsafe school environment for students, including Ms McHale's child. Ms McHale contacted HSD's Superintendent to better understand where sexual orientation fits into the learning 1 This complaint uses as an umbrella term to recognize identities such as, but not limited to: lesbian, gay, bisexual, trans, two-spirit, queer, questioning, intersex, pansexual, asexual and ally. 2 C.C.S.M. C. H175. 3 In the communities of Landmark, Niverville, Bothwell, Blumenort, Mitchell, Kleefeld, Grunthal, Springs, and Steinbach. IZ Michelle McHale and Karen Phillips: June 17, 2016 Written Statement in Support of a Complaint of Discrimination Page 2 of 5 environment of HSD. She also sought to confirm the accuracy of the school principal's statement. An express statement confirmng or denying the advice of the principal has never been provided. HSD Policies regarding Human Diversity and ?Sensitive Content? 8. On May 6 2014, HSD adopted a policy entitled ?Respect for Human Diversity?. Through this policy, the Board is committed to creating and maintaining a positive and inclusive environment in which students, staff and parents are aware of and respect the human rights, diversity and dignity of others. The policy states that all students and staff are entitled to respect, dignity of person and the protections afforded to them under all laws and statutes (including the Code). In addition, the policy states that HSD staff have a reSponsibility to support initiatives that foster respect for human rights, diversity and dignity, and to create learning environments and workplaces that do not unreasonably infringe on any protected characteristics of the Code. 9. When the subject of bullying and potential links to the HSD curriculum were raised with HSD administration, Ms McHale was provided ?Guidelines for Discussing Sexual Orientation, Abortion, and Masturbation? (the ?Guidelines?) in the body of an email. Ms McHale was told that the Guidelines were part of a document referred to by the HSD Superintendent as a ?Sensitive Concerns document? a document developed 10 years ago through a community consultation process and revised in 2015. 10. The Guidelines are meant to be used by teachers and school staff to answer questions from students regarding topics that are considered ?sensitive content?. They provide that: - Principals and teachers are not to include ?sexual practices of homosexual partners? when answering class questions. - Sexual orientation, abortion, or masturbation are not a discussion topic or addressed in any curricular outcomes or lessons in grades 5 to 8. If a student asks a question that is directly or indirectly related to these topics (or any other that the teacher feels requires special attention), the teacher will use their discretion before making a phone call home to the student's parent or guardian, letting them know that during a discussion, their child had inquired about sexual orientation, abortion or masturbation. April 5, 2016 Board Meeting 11. After receiving the Guidelines and being informed that sexual orientation is not discussed in the curriculum in HSD until high school, the Complainants decided to raise their concerns with the Board. Students in HSD are disadvantaged in terms of the progress of their education in comparison to students in other schools divisions where these issues are openly discussed. On April 5, 2016, Ms McHale made a presentation at the HSD Board meeting, asking that ?information about people who identify as be included in each and every grade, and in each and every subject in which human beings are discussed.? 12. At the end of her presentation, Ms McHale made five specific requests to the Board in support of her broader request with respect to encouraging an inclusive learning environment: Remember that without inclusion of all human diversity, a safe space for all is not possible. Michelle McHale and Karen Phillips: MMJ June 17, 2016 Written Statement in Support ofa Complaint of Discrimination Page 3 of 5 Consider human rights legislation, the Act and comprehensive research regarding the climate in schools for people. Within the next 30 days, allow discussion about sexual orientation and gender identity in classrooms, in a positive and informed manner. Adopt and be fully compliant with proposed amendments from the Winnipeg School Division's Diversity and Equity Education Policy for the start of the 2016/17 school year in order to truly be inclusive and respectful of all human rights. - Remember that administrative or time challenges are not legitimate reasons to ask peeple to wait for their human rights to be acknowledged. 13. The Board did not provide an answer to the Complainant's requests at the meeting but stated that it would consider the preposal. April 20, 2016 Media Statement issued by the Board 14. The response to the Complainant's presentation from April 5, 2016, came in the form of a media statement issued by the Board on April 20, 2016. None of Ms McHale's specific requests outlined in paragraphs 11 and 12 were addressed directly. The statement confirmed the existing Human Diversity Policy as well as the Guidelines, which significantly limits teachers' ability to discuss or reference sexual orientation in the classroom. Gender identity and the diversity of families was not specifically addressed. Unlike the discretionary language in the Guidelines, the Board's media statement indicates that teachers are ?required to inform the student?s parent or guardian, letting them know that during a discussion, their child had inquired about sexual orientation? [emphasis added]. This requirement could have the effect of outing children to a disapproving family, which is not only irresponsible and dangerous, but creates a chilling effect for students seeking support through educational programming and services. May 3, 2016 Board Meeting 15. On May 3, 2016, a grade 12 student in HSD, Mika Schellenberg, made a presentation at the Board meeting to ask trustees to update the division's diversity policies to better include individuals. She asked the Board to reconsider the request made by Ms McHale on April 5, 2016. The Board did not provide a response to the presentation at the meeting. June 7, 2016 Board Meeting 16. The Board trustees provided individual responses to Ms Schellenberg's request at their June 7, 2016 meeting. The Board indicated that a formal response to Ms Schellenberg would be deferred.4 17. The Complainants would characterize many of the statements made by individual trustees during the June 7 meeting in particular as inflammatory, disrespectful, and ill-informed. 4 Notwithstanding, during individual statements made by each trustee, two trustees supported the request, six did not and one trustee did not make his position known. Michelle McHale and Karen Phillips: 2&1 June 17, 2016 Written Statement in Support ofa Complaint of Discrimination Page 4 of 18. Notwithstanding explicit requirements of the HSD Trustee Code of Conduct on trustees to conduct all duties in a fair, respectful and impartial manner, to act with integrity and to be informed of current educational topics and trends, the following comments5 were made: - Respecting a child?s privacy and considering potential concerns about being ?outed? to a disapproving family was equated with removing parents and ?going down the path of residential schools, a mess the government is now starting to work its way out of?. - The identities of people was described as a ?lifestyle? one which one trustee said, echoed by others, that he ?simply doesn't agree with?. In agreeing with statements that identities are a lifestyle they don?t agree with, another trustee stated that teachers, students and their parents know that our culture is changing, that does not suggest that we should abandon truth.? This same trustee, speaking in her capacity as a health care professional, linked sexual education to a heightened risk of cancer. When given the opportunity to respond to multiple requests to provide a safe and inclusive environment for students or students of parents/families, this trustee stated ?there is enough cancer around and the increase in cancer is phenomenal.? In considering whether classroom activities and materials should be inclusive of individuals, one trustee stated ?that?s almost bordering on indoctrination if we are enforcing that in all of our children and putting that in their lives constantly, that's not fair.? Discrimination, as alleged 19. All children, irrespective of their actual or perceived sexual orientation or gender identity, have the right to a safe childhood and school experience. The same principles apply irrespective of a child?s parents? sexual orientation or gender identity. The provision of educational services and programs cannot be done in a discriminatory manner which refuses to acknowledge an integral part of people?s personal and/or family identities. Doing so only serves to enable a culture of exclusion and stigmatization that can have severe consequences for individuals and families. 20. In the many attempts to resolve this matter directly with school administration or the Board, undue attention has been placed on sexual education specifically. The Complainants are concerned with the complete culture of exclusion and silence with respect to the people. HSD and the Board's policies (explicit and/or in implementation), curriculum, teaching and learning materials fail to provide a safe, inclusive and supportive environment for students or students with parent/family experiences and these failures amount to discrimination under the Code. 21. The Complainants rely on sections 9(2) and 13(1) of the Code to allege their family has been discriminated against on the basis of sexual orientation and family status in the provision of education services and/or programs. The Complainants also allege this discrimination is systemic in nature, and on that basis, also includes gender identity. The Complainants ask their family be treated in a manner free from discrimination, consistent with the Code and international legal instruments? 5 Unless otherwise stated, all direct quotes are taken from a report of the meeting published by local paper The Carillon on June 8, 2016 and available online at 382234161.htm]. 6 For example, the Universal Declaration of Human Rights, and the Convention on the Rights of the Child Michelle McHale and Karen Phillips: June 17, 2016 Written Statement in Support of a Complaint of Discrimination Page 5 of 5 22. The inclusion of sexual orientation as ?Sensitive Content? in the Hanover School Division Guidelines is discrimination under the Code because it amounts to differential treatment of a protected class of individuals or groups in the provision of services and/or programs. Sexual orientation is the only protected characteristic that has been singled out for exclusion in HSD policy. Contrary to abortion or to masturbation, which are also included in the Guidelines, sexual orientation and gender identity are innate and immutable human characteristics. These characteristics are not choices. 23. As a result of the Guidelines and directives that limit teachers' ability to interact with students in a manner that respects the diversity of individuals and families, HSD has created a discriminatory climate in HSD classrooms. This not only condones, but mandates the differential treatment of a group on the basis of protected characteristics. 24. The explicit exclusion of sexual orientation from discussion in HSD classrooms means that only heterosexual practices and families are integrated and discussed in the classroom. In effect, HSD's own Respect for Human Diversity Policy is not being respected in HSD schools. 25. The exclusion of sexual orientation sends the message to children who identify as or who come from families that there is something so wrong with anything other than heterosexuality that it cannot be discussed in any manner in the classroom. A learning environment that actively supports the diversity of families and is openly inclusive of all sexual orientations and gender identities goes beyond the specific provision of sex education or the management of ?sensitive topics?. For example, children should see themselves and their families re?ected in classroom activities and teaching and learning materials. 26. The Complainants would also like to draw attention to the Board's failure to address the conduct of individual trustees as outlined in paragraph 18 of this written statement. This failure to address conduct arguably in breach of the Board's own Code of Conduct contributes to the discriminatory climate within HSD with respect to individuals and families. Remedies 27. The Complainants will be seeking a remedial order in accordance with the provisions of the Code, in particular, sections 43(2)(a) and The Complainants reserve the right to particularize and/or quantify the remedies they are seeking at a later date in the complaint process. Conclusion 28. This complaint has not addressed undue hardship, or justification of the discrimination . The Complainants reserve the right to address these issues following receipt of the HSD response to the complaint. 29. The Complainants certify that the information contained in this complaint is correct to the best of their knowledge. They believe that the events described above constitute a continuing contravention of The Human Rights Code. Michelle McHale and Karen Phillips: June 17, 2016