During Pride Season, which takes place across Canada between June and September, 2SLGBTQ+ communities and allies come together to celebrate the resilience, talent and contributions of members of the 2SLGBTQ+ communities. One symbol that has spurred controversy, particularly at public school districts, is the pride flag. A recent Ontario Divisional Court decision considered and ultimately dismissed, an application for judicial review of a school board’s decision to deny the applicant’s request to deliver an oral presentation, purportedly about the flying of the rainbow pride flag at all Ontario schools during Pride Month, at a June 2019 Board meeting.
The Board’s Decision
In May 2019, Ann Gillies (the “Applicant”) asked to make an oral presentation to the Bluewater District School Board related to flying a rainbow pride flag at all Ontario schools. In advance of the Board meeting, the Applicant provided the Board with a written copy of the presentation she intended to make. It advanced the view that “transgender children don’t exist” and referred to the “Trans movement” whose “agenda” was purportedly encouraged by academics. Only the last sentence referred to the pride flag: “As parents and concerned citizens we politely ask that you do not support the harmful transgender ideology by allowing the LGBT flag flown at our schools in June”. Three days after the Applicant submitted a written copy of her presentation, a Board representative informed the Applicant she could not speak at the upcoming Board meeting because the content of the proposed presentation was contrary to the Board’s duties and responsibilities, including under the Education Act, the Ontario Human Rights Code and the Board’s bylaws and policies. As an alternative, the Board representative offered to provide a written copy of the Applicant’s presentation to the trustees.
Subsequently, the Applicant applied to judicially review the Board’s decision. She challenged it on two bases: (1) that the reasons the Board provided for its decision to refuse to allow the Applicant to speak were insufficient for her to meaningfully review the decision and (2) that the Board failed to properly balance the Applicant’s right to expression against the Board’s policies and objectives.
The Court’s Decision
In Gillies v. Bluewater District School Board, 2023 ONSC 1625, the Ontario Divisional Court dismissed the applicant’s application for judicial review. First, it reviewed the Board’s bylaws. It found they neither obliged the Board to permit the Applicant (or any individual) to make oral submissions to the Board, nor to provide reasons for declining to do so.
Second, it considered whether the reasons the Board provided to the Applicant refusing to permit her to speak at the Board meeting were sufficient and reasonable. In the court’s view: “it is clear that to permit the applicant’s proposed presentation to be publicly aired at a Board meeting would run contrary to the laws, by-laws and policies regarding inclusiveness that bind it, and that permission was being denied for that reason”.
Finally, it contemplated whether the Board adequately balanced the Applicant’s Charter right to freedom of expression against the Board’s objectives and policies to promote an inclusive school climate for pupils of any sex, sexual orientation, gender identity and gender expression and to provide an environment free of discrimination and harassment. It determined the Board struck the proper balance between protecting the Applicant’s Charter right to expression on the one hand and the Board’s policies and human rights commitments to recognizing “transgender individuals are one of the most disadvantaged groups in society, frequently facing threats to their very existence” on the other hand. It also recognized the Board’s offer to provide a written copy of the applicant’s presentation to the trustees represented a compromise, which the applicant declined, but which aimed to impair the applicant’s right to freedom of expression to the most minimal extent possible.
For more information, please contact your Harris lawyer.