What Do Human Rights Codes Actually Say ...

And why it isn't what the Waterloo Region District School Board thinks

The fiasco at the Waterloo District Regional School Board is a disturbing reminder of how far human rights law has strayed from its original purpose. Human rights codes were introduced to protect vulnerable minorities from being denied employment,. housing and services. They reflected the values of a society that aspired to be pluralistic and liberal. Today they are being used to justify imposing an elite ideological consensus which is increasingly narrow and illiberal.

The story has been reported in the local media and the National Post. A video of the relevant portion of the meeting was available on Rumble as of January 21, 2022. The school division had a previous version removed from YouTube for alleged copyright violations so this version may not last.

Carolyn Burjoski has been a teacher for more than 20 years and has been praised for her work with refugee children. On January 17, 2022 she appeared before the Board to discuss the board’s policy on culling of library materials. Early in her presentation she stated that she had concerns about the accuracy and age appropriateness of some new materials on sexuality.

She first discussed a book where a young boy concludes that he might be asexual because he was not around by thinking about naked girls. She pointed out that the more likely explanation is that he is still a child.

The chair of the board interrupted the presentation was discussing The Other Boy by M. G. Hennessey. This is the story of Shane, transgender boy (ie. born female), who is about to begin puberty blockers. A doctor explains to Shane that the combination of puberty blockers followed by testosterone will probably make Shane permanently sterile and Shane says that ‘he’ is "cool” with that. Ms. Burjoski began to express her concern that the book presented an inaccurate picture of medical transition.

This concern about medical transition of adolescents is shared by many around the world. In the United Kingdom, the Keira Bell case was one of a number which raised public concern about the lack of adequate safeguards gender health care. In the United States pioneers in gender care for young people such as Erica Anderson and Laura Edwards-Leeper are saying that the system has gone wrong and better mental health assessment is required before proceeding with hormone treatment. Articles expressing similar concerns have been published in Medscape, the National Post, the New York Times, the Economist and other major media outlets as well as numerous professional publications.

However in Ontario, or at least in the Waterloo area, it seems that even the slightest mention of these concerns could be a Human Rights Code violation. At least this is what the chair of the Board believed. He stopped the presentation and his decision was upheld by a 6 to 4 vote of the board.

The board has now issued a public statement on the incident which reads, in part:

As a school board, we are guided by the Ontario Human Rights Code and committed to doing our best so that all students are affirmed in their identity and see themselves reflected in their learning environment. The Board is committed to upholding the values and principles set out in Board’s Equity and Inclusion Policy 1008 and the Board’s Human Rights Policy 1017. The Board is committed to providing a safe, inclusive environment free from inequity, discrimination and harassment.

The Board refers to the Ontario Human Rights Code its own policies on human rights and equity and inclusion. There is also a policy on harassment.

There is nothing wrong with the board’s policies. They accurately reflect the requirements of the Human Rights Code and the case law interpreting it. The problem is the Board’s interpretation.

The Human Rights Code prohibits discrimination in the employment, housing and the provision of services on prohibited grounds of discrimination which include “race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.”

It also prohibits harassment in employment or housing. Harassment “means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.” The board’s human rights policy elaborates on this definition and explains that harassment consists of conduct directed at an individual such as insults, epithets, persistent teasing and offensive jokes based on a protected characteristic. Nothing in Ms. Burjoski’s presentation could possibly fit this definition.

The Ontario Code does not attempt to regulate speech in general. Section 13 prohibits publication of a “notice, sign, symbol or emblem” that indicates an expression to discriminate but it is subject to a proviso that it shall not interfere with freedom of expression. Ontario does not have the hate speech provision in its Code that some other provinces have.

There are some people who regard the expression of any opinion that contradicts their personal beliefs as vexatious and unwelcome. Many of them are transgender activists. That seems to be the view of the majority of the Board. They believe that a narrow set of orthodoxies around gender identity have to be accepted as unchallengeable truth.

The Board claims that it is trying to create an atmosphere where everyone feels included. However inclusion cannot mean completely comfortable all the time. The fact that the Code contains multiple grounds of discrimination including race, creed and place of origin. It does not seek to make everyone comfortable all the time because that is impossible in our society. A book that might be perfectly acceptable to a child from a privileged secular liberal background could be highly disturbing to a refugee child with conservative religious parents.

If the Board had read its own policy it would see that it acknowledges that rights and interests can sometimes conflict. These conflicts can only be fairly resolved through open discussion.

Gender ideology was accepted by many people in the political, academic and business world with little thought or understanding of its consequences. Many progressive politicians have committed themselves to the cause of “trans rights” in such extravagant terms that even the slightest compromise would be a major loss of face.

The Board has backed itself into a corner. A good teacher and many children are going to suffer as it tries to ease its way out.