Dear education friends and Attorney-General of Ontario, Doug Downey,

I’m writing today with a significant update about the current “lay of the land” of the education system in Ontario, Canada.

As it currently stands:

When a man – who is transitioning to a woman – shows up to class wearing oversized prosthetic breasts with protruding nipples (as is the case in Oakville, Ontario, Canada with teacher Kayla Lemieux), it’s an expression of gender identity.

According to the Halton District School Board, implementing a dress code for teachers would expose the board to “considerable liability” for violating the Ontario Human Rights Code. Further, they say, new rules can’t even be considered at this moment because of ongoing collective bargaining with teacher unions.

Yet:

When an education executive – who is female and not transitioning – speaks up about gender and race discrimination at the school board where she works as a function of her job, as an expression of her gender identity, and when professionally dressed, the female executive is publicly walked off the job, called “subversive” and “loony,” and promptly demoted – as was the case in the Kawartha Pine Ridge District School Board in Peterborough, Ontario a few years ago.

Yes, that is indeed the current “lay of the land” in the education system in Ontario, Canada.

This is not fake news.

It’s real news – and legally, it’s a profound case of differential treatment, which is a violation of the Ontario Human Rights Code.

I’m not a lawyer, but I understand Ontario’s education system extremely well, I have a decent understanding of the human rights code, I have detailed knowledge of the situation, and I’ve seen all the evidence.

Let’s take a look at this from a legal perspective.

If there are any lawyers out there with a different perspective, they are welcome to let me know.

First, I should tell you that this differential treatment is even more profound when you realize that the female executive who spoke out about race and gender discrimination did so after seven men and two women were promoted to the senior leadership team in the Kawartha Pine Ridge District School Board at a time when the hiring pool (principals) consisted of approximately 70% women…

…after school board Trustee Gordon Gilchrist had espoused racist viewpoints toward all immigrants in the local newspaper…

…after the Ministry of Education told trustees to remove themselves from hiring panels for all positions except for director of education (because it was leading to discrimination)…

…and after school board trustees in that school board refused to remove themselves from hiring panels for all positions except for director of education because the trustees did not want to “readily give in to having their authority removed.”

The differential treatment is even more profound when I tell you that the female executive spoke out just before Trustee Gilchrist made racial slurs toward First Nations students, and just before Trustee Gilchrist said he was thinking of taking the matter into his own hands after a female Muslim student was appointed as student trustee.

Okay, let’s get to the analysis.

The purpose of anti-discrimination laws in Ontario is to prevent the violation of human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice.

In the context of equality claims under s. 15 of the Canadian Charter of Rights and Freedoms (the “Charter”), the Supreme Court of Canada has offered the following three broad inquiries as a tool for determining whether discrimination has occurred.

Let’s take a look at these in relation to the above comparative scenario:

1. Differential treatment

Was there substantively differential treatment, either because of a distinction, exclusion or preference, or because of a failure to take into account the individual’s already disadvantaged position within Canadian society?

Yes. When a man – who is transitioning to a woman – shows up to class wearing oversized prosthetic breasts with protruding nipples, it’s an expression of her gender identity – and is allowed – as is the case with Ms. Lemieux at the Halton District School Board in Oakville.

When a woman who isn’t transitioning speaks up about gender and race discrimination as a function of her job, as an expression of her gender identity, and while professionally dressed, the woman is publicly walked off the job, called “subversive” and “loony,” and promptly demoted – as is the case with the female executive in the Kawartha Pine Ridge District School Board in Peterborough, Ontario.

It is substantively differential treatment – and it appears to be based on the fact that Ms. Lemieux is transitioning (from a man to a woman) and is therefore allowed to express her gender identity wearing whatever she would like.

But the female executive, who is not transitioning, isn’t allowed to express her gender identity – even when it’s a requirement of her job, after watching and experiencing significant issues with discrimination in her place of work, and even when she’s dressed professionally.

This is because of a distinction, exclusion or preference, or because of a failure to take into account the individual’s already disadvantaged position within Canadian society.

In Ms. Lemieux’s case, gender identity and expression were taken into consideration. She is a man who is transitioning to a woman.

In the case of the female senior executive, gender identity and expression were not taken into consideration. The senior executive is a woman who is not transitioning.

Both Ms. Lemieux and the female education executive occupy a disadvantaged position within Canadian society.

2. Is the differential treatment based on an enumerated ground?

Yes. Both individuals identify as women. One individual is a man who is transitioning to a woman. The other individual is a woman who does not wish to transition or change her gender. Gender, gender identity and gender expression are enumerated grounds.

3. Discrimination in a substantive sense

Does the differential treatment discriminate by imposing a burden upon, or withholding a benefit from, an individual?

Yes, the female senior executive was walked off the job, demoted and called “loony.” That’s an extraordinary burden with lasting implications.

However, Ms. Lemieux can continue to work and wear oversized prosthetic breasts with protruding nipples to class – amidst increased security and police presence, bomb threats, intense media scrutiny, protests and student walk-outs.

That’s an extraordinary burden for the board to uphold to protect Ms. Lemieux and her rights – and no burden for Ms. Lemieux at all.

Additionally, Ms. Lemieux is being given a benefit (the ability to keep her job), and this benefit was withheld from the senior executive, making it constructive dismissal as well.

Is the discrimination based on stereotypes of a presumed group or personal characteristics, or perpetuate or promote the view that an individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society who is equally deserving of concern, respect and consideration?

Yes. This comparison situation suggests that a man – who is transitioning to a woman – and who wears oversized prosthetic breasts with protruding nipples to class as an expression of her gender identity – is more worthy of recognition and value as a human being than a woman who dresses professionally, and expresses significant and valid concerns with race and gender discrimination as an expression of her own gender and as a function of her job.

Does the differential treatment amount to discrimination because it makes distinctions that are offensive to human dignity?

Yes. It’s offensive to the female executive’s human dignity – and to the human dignity of most women – that a man who is transitioning to a woman can wear oversized prosthetic breasts with protruding nipples to class as an expression of her identity, but a woman who speaks out with valid concerns about race and gender discrimination as an expression of her own gender, and as a function of her job is walked off the job, demoted, and called “loony.”

It’s extraordinarily offensive when that women is professionally dressed.

Discrimination has definitely occurred to the female executive under all three broad inquiries of the Supreme Court of Canada in the context of equality claims under s. 15 of the Canadian Charter of Rights and Freedoms.

Now what?

The Supreme Court of Canada has set out a framework for examining whether the person responsible for accommodation (Minister Lecce, Ontario’s Education Minister, in this case) has met the duty to accommodate the individual (both Ms. Lemieux and the female executive).

Where it is established that a standard, factor, requirement or rule results in discrimination, the person responsible for accommodation must show that the standard, factor, requirement or rule:

1. was adopted for a purpose that is rationally connected to the function being performed;

2. was adopted in good faith;

3. is reasonably necessary to accomplish its goal or purpose, in the sense that it is impossible to accommodate the claimant without undue hardship.

Now let’s analyze the above comparative scenario in relation to the Supreme Court of Canada’s framework for Education Minister Lecce’s duty to accommodate.

1. Was the standard, factor, requirement or rule that resulted in discrimination adopted for a purpose that is rationally connected to the function being performed?

In other words, is it necessary for Ms. Lemieux to wear oversized prosthetics with protruding nipples to do her job as an industrial arts teacher?

No. In fact, these “articles of clothing” hinder Ms. Lemieux’s ability to do her job safely.

Was it necessary for the female executive to speak out about gender and race discrimination at work?

Yes, it’s a function of her job as an education leader, a critical task of all educators, and a requirement of the Ontario Human Rights Code to speak out about discrimination. Not only are educators tasked with speaking out about discrimination, they are tasked with addressing discrimination in the education system as well.

2. Was the standard, factor, requirement or rule adopted in good faith?

The Halton District School Board is attempting to follow the Ontario Human Rights Code and believes that allowing Ms. Lemieux to wear oversized prosthetics breasts with protruding nipples to class is an expression of Ms. Lemieux’s gender identity,

The school board also believes they cannot implement a staff “dress code” during contract negotiations and without considerable “legal liability,” because removing the right for Ms. Lemieux to express her gender identity however she likes could violate the Ontario Human Rights Code.

So the standard, factor, requirement or rule was adopted in good faith in Ms. Lemieux’s situation (if the school board believes there is no dress code for staff in effect).

However, the standard, factor, requirement or rule was not adopted in good faith in the case of the female executive.

The female executive was walked off the job, demoted and called “loony” when she spoke out about gender and race discrimination as an expression of her gender identity, as a function of her job, and while dressed professionally.

School board trustees hire and supervise directors of education (who run the day-to-day operations of school boards in Ontario) so instead of removing trustees from hiring panels (which might have cost the director his job), the director demoted the female executive who was speaking out instead of removing trustees from hiring panels.

Then the local school board trustee (a former school board Chair and current President of the Ontario Public School Boards’ Association) called the female executive “loony.”

This discredited the female executive’s allegations – which were entirely true. And that allowed trustees to remain on hiring panels against Ministry of Education direction – including a trustee who had espoused racist viewpoints toward all immigrants, and would go on to disparage First Nations students and a female Muslim student trustee. It also allowed the director of education to keep his job.

Therefore, these standards, factors, requirements or rules were not adopted in good faith in the instance of the senior executive. They were actually a form of reprisal against the female executive who had spoken the truth.

3. Was the standard, factor, requirement or rule reasonably necessary to accomplish its goal or purpose, in the sense that it is impossible to accommodate the claimant without undue hardship?

The Halton District School Board appears to be accommodating Ms. Lemieux without undue hardship.

The Board has hired extra security and increased police presence, implemented a safely plan for Ms. Lemieux, all staff and all students, tolerated lost production and hundreds of complaints, protests, student walk-outs, horn honking, and intense media scrutiny.

The board has even navigated two violent bomb threats appearing to reference the situation, which included direct threats against two Halton District School Board staff members and the city of Oakville as a whole.

The Halton District School Board chose to bear these hardships in order to defend Ms. Lemieux’s right to express her gender identity in any way she would like – even though it is undue hardship for the school board to do so and it does pose a threat to the “business” of educating students and a threat to the health and safety of everyone involved.

In the case of the female executive, the school board could easily have ignored her comments when she spoke out about gender and race discrimination.

The school board could also have easily rectified the situation. The director of education could have removed trustees from hiring panels with assistance from the Ministry of Education – the Ministry of Education told him he needed to do so, in writing, three times – and the director could easily have promoted more women to the senior leadership team. The hiring pool (principals) was comprised of nearly 70% women.

Most school boards across Ontario had already removed trustees from hiring panels and promoted more women successfully. In fact, many school boards in Ontario already had gender balanced leadership teams.

Additionally, if Ms. Lemieux’s rights can be accommodated with an extraordinary amount of hardship to the board, the senior administrator’s rights could have been accommodated with no undue hardship to the school board at all.

This establishes that the Kawartha Pine Ridge District School Board (and Education Minister Stephen Lecce) did not meet the duty to accommodate the senior executive because the standard, factor, requirement or rule they used to walk the senior executive off the job, to demote her and call her “loony” resulted in discrimination, and the standard, factor, requirement or rule was not adopted for a purpose that is rationally connected to the function being performed, was not adopted in good faith, and was not reasonably necessary to accomplish its goal or purpose.

In comparison, the Halton District School Board (and Education Minister Lecce) did meet the duty to accommodate Ms. Lemieux. In fact, the school board bent over backward to accommodate Ms. Lemieux – even though the school board had to endure a great deal of undue hardship.

Let’s dig deeper:

Are Ms. Lemieux’s human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice being violated?

No, they are not. Ms. Lemieux’s human dignity and freedom are being upheld by the school board where she works.

Were the female senior executive’s human dignity and freedom violated when she was walked off the job, demoted, and called “loony?”

Yes, and the female executive’s human dignity and freedom were further violated when the Ontario Principal’s Council told the senior executive it was her job to accept the decisions of the school board even if she disagreed with those decisions (which meant it was the job of the female executive to accept gender and race discrimination in her workplace).

The Ontario Principal’s Council also told the female executive she should apologize for her “bad behaviour.”

The Ontario College of Teachers told the female executive that she wasn’t allowed to say anything that reflected poorly on her school board or the teaching profession in general (which meant she couldn’t speak out about race or gender discrimination, the fact that trustees were refusing to remove themselves from hiring panels, or the fact that a trustee who had espoused racist viewpoints toward all immigrants was allowed to sit on hiring panels.)

The Ontario College of Teachers also told the female executive that any public interest in the matter had been addressed by her demotion (but this didn’t address any public interest at all).

Premier Wynne told the female executive to contact the Ombudsman saying Premier Wynne couldn’t get involved because school boards were “self governing” systems (which meant Premier Wynne was ignoring race and gender discrimination at the Kawartha Pine Ridge District School Board).

Ontario’s Ombudsman told the female executive there was nothing the Ombudsman could do and his office was “monitoring” the situation, (which meant the Ombudsman was allowing gender and race discrimination to occur and was “monitoring” it).

Ontario’s Integrity Commissioner said it wasn’t within his jurisdiction and he couldn’t get involved.

The Ontario Human Rights Tribunal said it wasn’t within their jurisdiction – twice.

The Ontario Human Rights Commission said their work is guided by their Strategic Plan and informed by ongoing engagement with their Education Advisory Group, with final decision being made by their appointed commissioners” (who are heavily slanted intentionally toward the Conservative government).

When the female executive wrote to Education Minister Lecce, Minister Lecce directed Ontario’s Chief Equity Officer, Patrick Case, to respond to the woman, even though Mr. Case had already responded to this woman several times, saying there was nothing he could do. Then Mr. Case suggested the female executive read the Huggins’ Report (which she had already read three times).

When the female executive had letters hand delivered by MPPs in the Legislature to the Education Minister, her letters were ignored – even though MPP staffers told female executive the Education Minister would respond (which meant many MPPs and the Education Minister were ignoring race and gender discrimination in the Kawartha Pine Ridge District School Board).

When the female executive filed a complaint with the Ontario College of Teachers, her complaint sat in a pile for 15 months. (It’s still sitting in that pile.)

The female executive’s rights were not only violated over and over again, they continue to be violated because a man – who is transitioning to a woman – can wear oversized prosthetic breasts with protruding nipples to class as an expression of her gender – while the female executive is not allowed to speak out about gender and race discrimination at all – even as a necessary function of her job, even when she’s professionally dressed, and even as an expression of her gender identity.

Does this comparison situation meet the thresholds for differential treatment and reprisal toward the female executive?

Yes. Being walked off the job and demoted was reprisal for speaking out about racist trustees sitting on hiring panels, trustees refusing to remove themselves from hiring panels, and a severely imbalanced senior leadership team slanted against women.

The Chair of the Board at the time and the current President of the Ontario Public School Boards’ Association even issued the female executive with a legal cease-and-desist letter on behalf of the school board.

And the legal cease-and-desist letter was written by a prestigious law firm telling the female executive to stop speaking out about the situation or she would be sued by the school board.

The school board has a multi-million dollar budget based on taxpayers’ dollars.

This is a significant threat.

In conclusion, discrimination and reprisal have occurred (to the female executive, but not to Ms. Lemieux) under all three broad inquiries of the Supreme Court of Canada in the context of equality claims under s. 15 of the Canadian Charter of Rights and Freedoms.

And the person responsible for accommodation (the Kawartha Pine Ridge District School Board and Education Minister Lecce) cannot show that the standard, factor, requirement or rule that resulted in this discrimination to the senior executive was adopted for a purpose that is rationally connected to the function being performed, was adopted in good faith, and is reasonably necessary to accomplish its goal or purpose – because it wasn’t.

This suggests that a man – who is transitioning to a woman and who wears oversized prosthetic breasts with protruding nipples to class as an expression of her gender identity – is more worthy of recognition and value as a human being than a woman who dresses professionally, expresses significant and valid concerns with race and gender discrimination as a function of her job, and as an expression of her gender.

What should happen next?

Mr. Downey is Ontario’s Attorney General, and is responsible for the administration of Ontario's courts and the contact between the government and the judiciary.

He is the Chief Law Officer of the Government and responsible for criminal and provincial prosecutions, legislative drafting, civil litigation involving the government, administration of the courts and services delivered by the Ministry of the Attorney General.

As the Chief Law Officer of the Government, it’s Mr. Downey’s job to provide independent legal advice to the Government and to advise Cabinet to ensure the rule of law is maintained and that government actions are legally and constitutionally valid.

The Ontario Human Rights Commission is also supposed to be an arm’s length agency of the government accountable to the legislature through the Ministry of the Attorney General.

One of the Commission's missions is to expose, challenge and end entrenched and widespread structures and systems of discrimination through education, policy development, public inquiries and litigation.

The Commission has the ability to initiate reviews and enquiries and can question people on matters that are relevant to the inquiry, and request documents for examination, and no person shall obstruct or interfere with the Commission's inquiry.

Under Section 35 of the Ontario Human Rights Code, the Commission may also apply to the Tribunal for an order if the Commission believes it is in the public interest to do so and if an order could provide an appropriate remedy.

The Commission can also order any party to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with the Code.

The Commission can also direct a person to do anything with respect to future practices and order a party to pay monetary compensation to a person whose rights were infringed.

The Office of the Ombudsman of Ontario is supposed to be an independent office of the Legislative Assembly of Ontario as well. Its jurisdiction includes more than 500 provincial government ministries, agencies, corporations, tribunals, boards and commissions.

In addition to the oversight of governmental bodies, the Ombudsman’s office is also responsible for the intake of public complaints, which indicate the possibility of maladministration within the Government of Ontario, and in appropriate cases conducts an investigation.

It's the Ombudsman's job to look at how a policy or program functions in the public sector once it's been set up. That would be the way the education system applies the Ontario Human Rights Code in this case. Is the Code consistently applied across the entire education system or not?

It's also the Ombudsman's job to reach an opinion about a public sector body's conduct including whether it appears to have been contrary to the law, unreasonable, unjust, oppressive, or improperly discriminatory.

That’s exactly what this is.

Let’s put this to the final test:

Will Mr. Downey find the Kawartha Pine Ridge DSB, the Ontario Principals’ Council, the Ontario Public School Boards’ Association, the Ontario College of Teachers, and Minister Lecce guilty of differential treatment and reprisal (in the case of the female executive) - and will the Ombudsman and the Ontario Human Rights Commission (who have all the evidence) assist?

Will Minister Lecce order the Halton District School Board to walk Kayla Lemieux off the job, demote her, and call her “loony?”

Anything else is differential treatment.

We all know Ms. Lemieux can’t be walked off the job, demoted and called “loony” because it would be a violation of Ms. Lemieux’s rights under the Ontario Human Rights Code.

Silence from Mr. Downey on this matter is also a violation of the Ontario Human Rights Code.

So now, with the Ombudsman, the Ontario Human Rights Commission and the entire world watching, let’s see what Mr. Downey does.

Sincerely,

Debbie L. Kasman, M. Ed, Policy Studies, OISE/University of Toronto
Education Re-imagined
Analyst & Researcher, Author & Speaker
www.debbielkasman.com

P. S. According to the latest media reports, Ms. Lemieux hasn’t been in class for the past few days because she has hurt her foot. Ms. Lemieux, (if you are reading this), I hope your foot heals quickly (if that is indeed the reason you are off) and I hope you are doing okay.

I also hope you are extraordinarily grateful for the respect, consideration, and support Ontario’s education system has afforded you on your transitioning journey.

It’s a lot more respect, consideration and support than the education system afforded the female executive from the Kawartha Pine Ridge District School Board who was walked off the job, demoted and called “loony” for speaking out about legitimate race and gender discrimination concerns as a function of her job, as an expression of her gender, and while dressed professionally.

I hope you don’t mind me saying that the way you are dressing in the classroom is considered unprofessional by many women. Women have been wearing professional attire in the workplace for many years. It’s not that big of a deal, and it’s not discriminatory as long as the rules apply to everyone, no matter their gender or gender identity.

Additionally, your expression of gender identity is placing an extraordinarily unfair burden on your school board in order to protect you and all the staff and students involved.

This is posing an extreme threat to the “business” of educating students – as well as the health and safety of everyone involved.

As such, the school board really can’t support the rights of one individual – your rights – over the rights of all staff and students in the school.

This may not seem fair, but it is fair.

I think we can agree that if you can wear oversized prosthetics breasts with protruding nipples as a teacher in a classroom as a way of expressing your gender identity, then male teachers who are transitioning can show up naked to class as well – including into kindergarten classrooms – and this makes no sense.

It would also mean, I think, that all male teachers, vice-principals, principals, superintendents and directors of education who are transitioning (male to female) can hang pinups of their favourite Playboy bunnies in their classrooms and offices as an expression of their gender identity - and most women would find that offensive in a professional setting.

I’m pretty sure this was not the intent of Bill C-16 when it was passed in June 2017 - and I think it would be discriminatory.

So I’m sure you’ll understand when I say that the education system in Ontario isn’t quite ready for men who are transitioning to women and who wear oversized prosthetic breasts with protruding nipples to class just yet.

The education system in Ontario doesn’t even know how to treat women who aren’t transitioning, who dress professionally, and who speak out in favour of equity yet.

Oh, and Ms. Lemieux, if you’ve ever paid (or donated) to “dress down” on Fridays or other “dress down” days, that would be legal evidence proving you are aware there is a professional dress code in effect in Ontario’s classrooms – and considering the extraordinary lengths your school board has gone to in order to protect you, you might be liable for some of those expenses if you knowingly violated the dress code. So you might want to wear professional attire when you return to work.

I stand proud in the belief that Ontario is ready to welcome you, Ms. Lemieux, (as a man who is transitioning to a woman), and will welcome you - without protests, extra security, protests, student walk-outs and bomb threats – as long as you wear professional attire in the classroom.

I thank you for helping to bring this issue to a head, Ms. Lemieux. You are the reason I am able to offer this legal analysis, which I am hopeful will force the Ontario government to deal with the discrimination of all people – staff, students and parents, regardless of their race, culture, religion, sex, gender or gender identity – within the education system.

For that I am extremely grateful.

I wish you all the best on your transitioning journey, Ms. Lemieux.

I hope it brings you all the health, happiness, love, kindness, success and respect you deserve.

Debbie