An Ontario court ruling Thursday to dismiss legal challenges by a civil rights groups and a teachers’ union over the controversial repeal of the sex-ed curriculum left one challenger calling it “a crummy day for equality” and the other declaring “victory.”

The judges said the Ford government’s rollback of the modernized Health and Physical Education (HPE) curriculum did not violate Charter rights, contrary to arguments made by the Canadian Civil Liberties Association and the Elementary Teachers’ Federation of Ontario.

The CCLA and ETFO had asked the court to quash the repeal of the 2015 HPE curriculum for elementary students. The government replaced it with an interim document from 2010 — that contains sex-ed material from 1998 and doesn’t address topics such as consent, gender identity and LGBTQ issues — to be used until a new curriculum comes out this fall.

The Divisional Court said the groups raised “a serious and justiciable issue” that is of public importance with province-wide implications, but that no rights were violated. In part, this is because teachers can still teach topics from the 2015 curriculum and schools must be inclusive, tolerant and respectful of diversity, according to the law.

In a written decision, Justices Bonnie Warkentin, Charles Hackland and Julie Thorburn, noted, “It is the role of legislators as elected officials, not the courts, to enact legislation and make policy decisions. Courts should not interfere with the exercise of a discretion by a statutory authority simply because the court might have acted differently or finds that a decision may be ill-advised.”

Speaking to reporters at Queen’s Park, CCLA Executive Director Michael Bryant called it “a crummy day for equality.”

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However, the former Liberal attorney general said the CCLA “is more determined than ever to fight to vindicate the rights of LGBTQ families, who have been made to feel ‘less than’ by the government of Ontario … The government should not be able to eliminate a population in a curriculum, or otherwise, with the stroke of a pen without very good justification.”

At ETFO’s office, union president Sam Hammond said the ruling was a “victory.” That’s because it makes clear that educators can use their professional judgment and teach about topics such as consent, gender identity, gender expression and other issues relevant today.

“The government’s explicit confirmation and concessions on this point in court makes this case a victory,” he said. “I have no doubt that this would never have occurred without our court challenge.”

He said if the province had made this clear from the outset ETFO wouldn’t have taken the matter to court. Hammond said the union will actively encourage its 83,000 members to keep teaching topics from the 2015 curriculum. And if disciplinary action is brought against a teacher, ETFO will use this ruling as a defence.

The CCLA will appeal, but ETFO suggests it will not. Meanwhile, the province faces another legal challenge in the Human Rights Tribunal of Ontario, which was launched by an 11-year-old transgender child.

Marit Stiles, NDP education critic, said the court ruling confirms additional topics can be introduced in the classroom, “but it’s not enough to leave it to teachers to supplement the curriculum, as the government’s lawyers claimed they’re able to. This doesn’t guarantee all kids have access to the same information.”

At Queen’s Park, Education Minister Lisa Thompson sidestepped questions on whether the upcoming curriculum will cover gender identity and related issues. She promised a curriculum that will “absolutely address the realities of students today” and specified cyberbullying, consent and human trafficking as topics that must be addressed following a public consultation with 72,000 Ontarians.

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All three opposition parties called on the Progressive Conservatives to include gender identity in the next curriculum.

“Nothing has changed in terms of our kids being at risk in schools with the lack of the updated curriculum” that taught children about gender identity and “different kinds of families,” said NDP Leader Andrea Horwath. “All of these pieces help create an environment where everyone is accepted and respected.”

Interim Liberal Leader John Fraser noted “parents are saying just keep the (2015) curriculum that was in place … the sky did not fall.”

“We live in a diverse society where we take care of each other, where we protect each other, where we understand differences,” he said. “That’s what we want our children to learn.”

Green Party Leader Mike Schreiner said Thompson should be ashamed for refusing to detail how, or if, gender identity will be addressed in the next curriculum.

“For the Minister of Education to waffle on the teaching of gender identity issues in the new curriculum the day after Pink Shirt Day is simply wrong,” he said, referring to the anti-bullying initiative. “We need to make sure we have schools that are safe and supportive of all students.”

In August 2018, the Ford government fulfilled an election promise and scrapped the 2015 HPE curriculum. As part of its directive, it created ForTheParents.ca where people could complain about the sex ed taught to their children and provide feedback on the curriculum.

In its application, ETFO and teacher Cindy Gangaram said the website, criticized by some as a snitch line, had a chilling effect on teachers and that the curriculum rollback restricted what they could teach, violating their freedom of expression. In a separate application, the CCLA and queer mother Becky McFarlane whose daughter is in Grade 6, argued the repeal discriminated against LGBTQ+ individuals, contravening the Charter of Rights and Freedoms and the Ontario Human Rights Code.

The matter was heard during a two-day hearing in January. The province argued no rights were infringed and that the law stipulates teachers must be inclusive and respect diversity. It also said teachers can use the 2015 curriculum as a resource and teach about issues such as consent, correct names for genitalia and gender identity.

McFarlane told the Star the impact of the repeal “has been felt in real ways by LGBTQ2S families and queer and trans young people.”

“Resilient and proud children should be a consequence of our education system, not something we have to build in spite of it.”