An investigation by the Manitoba Human Rights Commission found the province's school curriculum discriminates against LGBTQ families, but newly released court documents reveal the finding was rejected by the commission's board, keeping it from the public eye until now.

The investigation stems from two human rights complaints filed in 2017 by three LGBTQ parents — Michelle McHale, Karen Phillips and Sonja Stone.

They alleged the Manitoba government discriminates against them and their children by not including gender identity or sexual orientation in their curriculum and learning materials.

The claim was supported by the Human Rights Commission's investigation team who wrote a 40-page report in July and concluded there was sufficient evidence to support a complaint.

"I felt validated and like things were proceeding as expected...and I felt confident in my case," said Stone when asked how she felt reading the report.

But then, the Human Rights Commission's board of commissioners — who are appointed by government — voted to dismiss the complaint.

"I was really surprised and confused," said Stone. "It was a strongly worded report."

This meant the complaint, and report, would never see the light of day unless the three took the government to court, which they did — asking for a judicial review of the dismissal.

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That case is still before the courts, but the commission's report and several other previously undisclosed documents were made public as part of the disclosure for two separate but connected legal challenges by the families.

Investigation finds no mandatory classes on gender diversity

The Human Rights Commission investigation found Manitoba teachers were given little guidance on how to teach about gender diversity or sexual orientation, and there was no mandatory curriculum that addresses these questions.

Furthermore, because it is deemed a "sensitive topic," parents can opt-out of in-class instruction for their children.

"The evidence as a whole appears to establish that the [government's] education system enables schools to refuse to include or under-include reference to sexual orientation, gender identity and diverse family relationships or structures," wrote Karen Sharma, the commission's director of investigations and policy on July 22, 2019.

"There appears to be sufficient evidence to support the complainants were treated adversely as members of the 2sLGBTQIA+ community, and based on their sexual orientation."

Stone identifies as queer and alleged in her complaint that she was forced to home school her child after they experienced transphobia and the school staff were unable to deal with the bullying they experienced for having a queer parent.

"When I got the investigation report, I was just like, 'of course, excellent,' I was just pleased it was such a strong, affirming finding...there wasn't much ambiguous language."

The report found:

There is no clear definition of "diversity" in the school curriculum.

The lack of definition means teachers could still meet the curriculum requirements without providing content that includes diverse sexual orientations, gender identities or family structures.

LGBTQ individuals are further stigmatized because "conventional wisdom" is to avoid talking about sexuality or "queer sexuality" in schools.

Specific references to sexuality, gender and family diversity are limited to elective classes in the senior years.

Sharma wrote in her conclusion that the complaint should go to a public hearing and not be dismissed — but that's not what happened.

Commission board dismisses complaint

Both complaints — one by Stone and the other by McHale and Phillips — went to the government-appointed Human Rights Commission's Board of Commissioners for final approval to hold a public hearing.

If a complaint goes to public hearing, an adjudicator can either dismiss the complaint or order the offending party to apologize, give compensation, and implement special programs, among other orders.

In a split decision — three members in favour and four against the public hearing — the board dismissed the complaint.

The trio filed an application for a judicial review in November, hoping a judge will quash the commission's dismissal of the complaint and have them reconsider the complaint.

Brenlee Carrington-Trepel, Chairperson of the Board of Commissioners, said there was not sufficient evidence that the province discriminated against LGBTQ families.

Because that court case is ongoing, McHale and Phillips declined to be interviewed for this story. The pair made headlines in 2016 after they came forward with their treatment by the Hanover School Division after they alleged their child was bullied for having two moms.

The board also declined to comment on the decision as the matter is before the courts, as did Education Minister Kelvin Goertzen.

Previously, the board has said the curriculum "in and of itself" did not contribute to the discriminatory learning environment for the complainants' kids or other Manitoba students and families, in a two-page decision written by board chair Brenlee Carrington-Trepel on Oct. 18, 2019.

Curriculum needs to be updated: sexual health expert

Manitoba's sexual education curriculum is almost 20 years old, according to a spokesperson for Manitoba's Education department, who said it was last updated in 2003.

Jared Star, the director of development for Manitoba's Sexuality Education Resource Centre, says that is a problem considering how much has changed in the way society looks at gender diversity and children's access to technology such as smart phones.

Jared Star of the Sexuality Education Resource Centre says children should be taught about gender diversity and sexuality at an early age. (Gary Solilak / CBC News)

He says best practices show when children are exposed to different views on gender diversity and sexuality it reduces rates of teen pregnancy, suicide and gender-based violence.

"When youth need answers to questions, they'll find them. So if we're not giving them a consistent message at a young age, they're going to turn to the Internet," Star said.

"The issue with it not being mandatory is that youth in society are getting different messages from different people. There's no consistency around the evidence base."

A lawyer for the province has previously argued the responsibility on this issue falls to the school division and stated the absence of specific references does not mean it is discriminating against LGBTQ families.

"By the measure, the absence of an equal number of specific reference to every conceivable combination or permutation of nationality, ancestry, ethnic background...would be tantamount to discrimination," wrote the government's lawyer, Jayne Kapac on August 22, 2017.

For Lisa Naylor, who is a former school trustee turned NDP MLA, she says a lot of the problems don't come from what is in the curriculum, but what is missing. She is a same-sex parent and says the curriculum needs to be updated to reflect modern families.

"I think parents will always have concerns ... but we are talking about human rights and humanity and I am not sure anyone's individual beliefs should be trumping human rights," she said.

"All children should feel accepted and valued and that their family is a good family and right for them and not ever made to question that."

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