School rules

This post was originally published in collaboration with Maciej Lipinski, who has since moved on from his role at KPMG in Canada.

​Today is the fifth International Day of Education, whose theme this year is “to invest in people, prioritize education.” Coming up on February 22, it will be Pink Shirt Day, an annual opportunity for organizations worldwide to reflect on, and to challenge, bullying. The values inherent to these days of reflection and understanding are intertwined: in schools across the country, bullying takes a toll on the ability of teachers to teach and students to learn and is therefore a challenge to be met every day of the year.

Recent research has found that during the COVID-19 pandemic, there were significant declines in students’ reported experiences of physical, verbal and social forms of bullying—but not cyber-bullying. This makes sense as a positive side-effect of the reduced opportunities for those other kinds of bullying to take place while students engaged in online or hybrid forms of learning and had fewer in-person interactions. Now, with a widespread return to in-class learning, schools and students are faced with the possibility that the prevalence bullying in all its forms will once again grow and give rise to challenges for prevention and intervention. Specifically in Ontario, under the Education Act, schools and school boards are legally obligated to take active anti-bullying measures that include establishing a bullying prevention and intervention plan.

For students, the consequences of schools’ anti-bullying policies and practices can have lasting impacts, including on academic achievement, confidence and even on emotional and mental health into adulthood. Adding to the challenge for schools, bullying is complex and takes place in broader social and cultural contexts that change over time. As set out in Ontario’s Policy/Program Memorandum 144:

Bullying can occur in situations where there are real or perceived power imbalances between individuals or groups, and may be a symptom of racism, classism, homophobia, sexism, religious discrimination, ethnic discrimination or other forms of bias and discrimination. Bullying can also be based on, but not limited to, body size, appearance, abilities, or other real or perceived factors. Perceptions about differences are often based on stereotypes perpetuated in broader society.

As employment and labour lawyers, we pay attention to these and other critical issues across sectors. In cases of bullying prevention and intervention in education, we recommend school administrators keep the following considerations in mind:

• Establishing sustainable and effective policies and procedures calls for a whole-school approach. A whole-school approach is one that engages students, parents, school staff and surrounding community members and organizations. Building engagement on each of these fronts can help develop policies and procedures that anticipate issues before they occur.
  
• Measures should be taken in consideration of various school policies. Such policies include not just the school’s bullying prevention and intervention plan, but also its code of conduct, equity and inclusive education policies, policies on reporting of incidents, police-school board protocols, and policies regarding the protection of privacy and student information.
  
• How you get there is often as important as the outcome. Implementing fair and transparent processes and practices for addressing bullying can be essential to ensuring that schools’ decisions are defensible, consistent across time and sensitive to surrounding circumstances on a case-by-case basis.
  
• Recognize novel situations that give rise to complexity and uncertainty. In these situations, it may be appropriate and necessary to reach out to school board leadership and legal counsel to seek guidance and advice.

Discussing gender identity in the classroom
The ways Canadians talk about gender in professional and social settings is changing. In many contexts, it is increasingly commonplace to introduce oneself by name and by pronoun. For many individuals, these changes have given rise to more conversations about gender identity.

Naturally, such conversations also find their way into schools and classrooms, where it may fall upon the shoulders of teachers and administrators to address the subject with their students—including in the context of bullying and its impacts. When addressing gender identity in the classroom, no two situations are the same and many policies and legal obligations may come into play.

A recent decision of Ontario’s Human Rights Tribunal addressed one such situation where a student’s parents took issue with how the subject of gender identity was discussed in a grade one classroom by a teacher who was responding to student questions. In the course of finding that the teacher’s conduct had not violated the Ontario Human Rights Code, the Tribunal’s decision made the following points on addressing gender identity in the classroom:

• Discussion is not discrimination. The Tribunal found that discussions of the concept of gender and gender identities other than male and female do not in themselves amount to discrimination against individuals who identify as male or female.
• Inclusivity is key. The Tribunal affirmed that statements that do not single out particular individuals or groups generally have a low risk of infringing the Human Rights Code.
• The Ontario Human Rights Code takes historical discrimination into account. The Tribunal confirmed its longstanding principle that the protections of the Human Rights Code do not apply in the same way to all gender identities, and the focus of the Code is on protecting individuals belonging to groups who have historically faced discrimination. The Human Rights Tribunal will therefore generally not make findings in favour of applications that seek systemic changes that run contrary to these protections.
• Discrimination can be remedied through appropriate follow-up. The Tribunal recognized that even where a teacher makes a statement that has the effect of creating a poisoned environment and amounts to discrimination based on gender identity, timely appropriate corrections and apologies can serve to remedy any resulting breach of the Code.

These key points identified by the Human Rights Tribunal serve as valuable guideposts for schools and school boards as changing collective understandings of gender identity continue to give rise to new discussions in classrooms—and make the education experience more fulfilling and a more effective investment for everyone.