After months of heated debate, the province’s controversial rollback of the modernized sex-ed curriculum was challenged in a Toronto courtroom Wednesday.

The two-day hearing, before three judges in Divisional Court, comes after two separate applications by the Canadian Civil Liberties Association (CCLA) and the Elementary Teachers’ Federation of Ontario (ETFO). Both groups want the court to quash the government’s repeal of the 2015 Health and Physical Education (HPE) curriculum. The province, however, says those requests should be dismissed.

“The official curriculum in Ontario has been changed — it used to be diverse and now it’s heterosexual only,” Michael Bryant, executive director of the CCLA, said before court proceedings.

“Obviously, this is about homophobia. If the government is going to be homophobic with its curriculum, you can bet the Constitution will have something to say about that.”

Sam Hammond, president of ETFO, told reporters outside court that they were acting on behalf of students “who have the right to be taught a current curriculum that stresses safety and inclusivity.”

“Our legal case contends that the government’s mishandling of the (HPE) curriculum has had a chilling effect on teachers’ abilities to teach the curriculum in an equitable, diverse and inclusive way,” Hammond said. “This will have a detrimental impact on students and their ability to make safe choices in the world of 2019.”

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The legal challenges were launched after Premier Doug Ford fulfilled a campaign promise in August by scrapping the 2015 HPE curriculum for elementary grades, which included topics such as same-sex relationships, consent and gender identity.

That curriculum was introduced by the previous Liberal government after extensive consultation with health experts, teachers, students and some parents. But socially conservative parents said it was too explicit and not age-appropriate, prompting some to pull their children out of public schools.

The 2015 HPE curriculum was replaced with one issued in 2010, containing sex-ed material from 1998 lesson plans. The province ordered this interim curriculum be used until it releases a new one next September, which will be based on feedback from the public.

From September to December, the government conducted what it calls the largest public consultation on education in the province’s history, asking about issues such as cellphone use in the classroom, improving math scores and sex-ed. It received 72,000 submissions through web surveys, online comments, and 27 telephone town halls.

People have also spoken out in other ways. In August, members of ETFO — the union representing 83,000 educators — marched to Queen’s Park, saying the curriculum change violated human rights and put kids in harm’s way. And in September, an estimated 38,000 students in cities such as Toronto, Ottawa and London, walked out of class in protest, calling for the reinstatement of the modern curriculum.

One application, by ETFO and teacher Cindy Gangaram, argues the interim curriculum is “grossly inadequate” because the sex-ed material was created before the advent of social media, cyberbullying, same-sex marriage and human rights protections for gender identity. Nor does it address consent.

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It also says a government website for parents to complain about teachers using the repealed 2015 sex-ed curriculum — it was dubbed ForTheParents.ca and lambasted by many for being akin to a snitch line — was created to “intimidate teachers, constrain their professional judgment, and serves as a means to ensure that students would no longer be exposed to the content of the 2015 curriculum.”

Goldblatt told court that there might not be a legal challenge if Ford hadn’t also issued a warning to teachers who openly said they would continue to use the now-scrapped version of the curriculum.

“It’s not simply a replacement of one curriculum with another . . . it’s because of how,” Goldblatt said. “It’s because of the message that was conveyed.”

ETFO argues the government violated the constitutional rights of teachers, by limiting their freedom of expression, and the rights of students.

When asked by the Divisional Court judges Wednesday if any teachers had been since disciplined for using the 2015 curriculum, Goldblatt couldn’t point to any examples.

“We don’t have to wait for people to be actually prosecuted,” Goldblatt said. “There are Charter values that must be respected in the classroom, in the delivery of the curriculum, and it is those values that have been fundamentally infringed.”

The other application, by the CCLA and queer parent Becky McFarlane, notes they’re not challenging the province’s authority to launch a consultation process or develop a new curriculum, but rather that an outdated curriculum is being used while a new one is drafted. They want the court to reinstate the 2015 curriculum, while a new one is created.

The CCLA argues the interim curriculum doesn’t include sexual orientation, gender identity and same-sex relations, which “stigmatizes, degrades, and alienates LGBTQ+ students and parents” and violates their constitutional right to equality. Also, because it doesn’t properly address issues of consent and online safety, it violates a person’s right to security, which is also a violation of the Canadian Charter of Rights and Freedoms.

The province, however, says sexual health topics in school are matters of educational policy and democratic decision-making, not constitutional law.

“The Constitution of Canada does not entrench any particular elementary school curriculum,” it notes in previously-filed court documents. “The 2018 (interim) HPE curriculum does not deprive anyone of life, liberty or security of the person. Nor is it discriminatory.”

It notes “teachers are obliged to implement the 2018 HPE curriculum in a manner that is inclusive and provides equal benefit to all students, including LGBTQ2S+ students” and that they have “substantial discretion” when it comes teaching material.

“Teachers are free to answer questions and address topics that are not expressly referred to in the curriculum document in the course of teaching the curriculum,” it notes. “Such ‘teachable moments’ are not prohibited.”

The province also says “teachers have access to a variety of professional learning and supports, including resources on inclusivity for LGBTQ2S+ students.”