Flags and Rainbows: Ontario Divisional Court Dismisses Application for Judicial Review of School Board Decision Denying Applicant Request to Present on the Flying of the Rainbow Pride Flag at Ontario Schools

June 26, 2023

Rudy Ticzon

In a recent decision of the Ontario Divisional Court, the Court dismissed an application for judicial review of an administrative decision by the Bluewater District School Board (“the Board”). In Gillies v Bluewater District School Board 2023 ONSC 1625 (CanLII), the applicant sought to quash the decision together with a declaration that the decision unjustifiably violated her right to freedom of expression, as guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms  (“the Charter“).

Background

The applicant wrote to the Board in April 2019, requesting to speak at a May 2019 Board meeting on the issue of an “Ontario mandate to fly the gay flag at all schools during the month of June.” The applicant believed that “this is a special right not afforded to other interest groups and therefore discriminatory.”  The applicant subsequently provided the Board with a copy of her proposed oral presentation. The content of the presentation formed the basis for the Board’s decision to deny the applicant’s request to present at the May 2019 Board meeting.

The presentation content included the applicant’s views on transgender people and the “Trans movement.” The applicant’s presentation spoke of “the radical push for children to very quickly start taking puberty blockers.” The applicant’s presentation described that the trans “agenda” is purportedly “encouraged by academics who have determined that biology doesn’t matter. Freedom of speech as we all know has been forced out of our universities.” The applicant’s presentation also advanced the view that “transgender children don’t exist,” and that the term itself “was brought into being by a coalition of pressure groups and political activities.”

The applicant’s proposed presentation referred to the Rainbow Pride flag by stating: “As parents and concerned citizens we politely ask that you do not support the harmful transgender ideology by allowing the LGBT flag flown at our schools in June.”

The Board’s Decision

On May 8, 2019, the Board denied the request for the applicant to make an oral presentation, instead offering to provide her presentation to Board trustees by email. The Board’s reasons for its decision were based on its commitment to meeting its obligations, including under the Education Act, the Ontario Human Rights Code, Board by-laws, and its Human Rights Policy.

The Court’s Decision

The Divisional Court dismissed the applicant’s judicial review application.

The Court found that the applicant’s proposed presentation had “virtually nothing to do with whether it is discriminatory to other groups to allow the gay pride flag to be flown at schools.  Instead, it is an attack on the “Trans movement”, whose “agenda” is purportedly encouraged by academics, and advances the view that “transgender children don’t exist.” The Court noted that the only reference to flying the flag was where the presentation suggested that to do so would support “the harmful transgender ideology.”

The Court found that the Board’s reasons for denying the applicant to present to the Board were sufficient and reasonable. The Court acknowledged that even though written reasons were delivered to the applicant, the Court determined that no reasons were required to be given by the Board.

The Court stated that it had no difficulty in understanding the reasoning process that led to the decision that was made by the Board.  The Court stated that, “It is clear that to permit the applicant’s proposed presentation to be publicly aired at a Board meeting would run contrary to the laws, by-laws and policies regarding inclusiveness that bind it, and that permission was being denied for that reason.”

The Court explained that to understand the rationale for the Board’s decision, “it is only necessary to imagine a trans student in attendance in the audience at the Board meeting where the applicant was making the presentation, and hearing it publicly declared that they do not, in fact, exist, but are instead the construct of a “harmful transgender ideology.”  The Court questioned that if this had occurred, “how could that meeting possibly be described as being part of a “positive school climate that is inclusive and accepting of all pupils, including pupils of any sex, sexual orientation, gender identity, [or] gender expression?”

Lastly, with respect to balancing the severity of the infringement of the applicant’s right as against the Board’s objectives and policies which constrained them, the Court stated that the Board’s offer to provide the trustees with a copy of the applicant’s presentation served to ensure that the applicant’s right to freedom of expression was respected, the only difference being that her views would be expressed in written form rather than orally.  The Court said that as a result, the applicant’s Charter rights were minimally impaired.

The Court was satisfied that the Board’s decision, considered wholistically and in its context, “reflects a proportionate balancing of the Charter protections at play”.

Key Takeaways

As we approach Pride Month each year, many public institutions will face decisions about raising the Pride flag to celebrate Pride Month. In particular, school boards will require an appropriate response that meets their statutory and workplace policy obligations. Where there is a conflict of rights, organizations will require legal advice to be effective in balancing the rights and interests of the parties involved. On this issue, advice from human rights lawyers is highly recommended.

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