Bluewater decision to prevent speaker’s trans ‘attack’ upheld by court

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An Ontario Divisional Court panel sided with the Bluewater District School Board’s decision to not let Ann Gillies present her plea against flying the Pride flag at schools or share her belief that transgender children “do not exist,” at a board meeting four years ago.

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The court dismissed the application due to her delay in bringing it forward but still provided the court’s opinion that her freedom of expression rights were not unjustifiably violated by the board. The board was awarded $5,000 in legal costs.

The review was of the board’s executive committee decision not to let Gillies speak at a board meeting May 21, 2019.

On March 8 the court heard Gillies’ application for a review of the board’s decision, which alleged her Charter right to freedom of expression was unjustifiably violated, and asked the court to quash the board’s decision. The court issued written reasons May 1.

Gillies, who lives in Dundalk, was an outspoken critic of federal moves which in January 2022 made it a criminal offence to cause anyone to undergo “conversion therapy” to change a person’s sexual orientation or gender expression or repress non-heterosexual attraction or sexual behaviour.

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Gillies said in an interview Tuesday that the Justice Centre for Constitutional Freedoms, which took on her case pro bono, advised it would not seek an appeal and that the 15-day window to appeal the court’s decision has passed. She still intends to run it by another lawyer though, she said.

Flying the rainbow gay Pride flag at all Ontario schools during Pride Month in June was Gillies’ “purported” presentation topic but it received just “passing reference” in her proposed presentation, the court reasons said.

The court found Gillies’ proposed presentation was really “an attack on the ‘Trans movement . . .”

Gillies had written to the board that she considers the mandate to fly the Pride flag at all schools in June “is a special right not afforded to other interest groups and therefore discriminatory.”

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She argued that with “the radical push for children to very quickly start taking puberty blockers; cross-sex hormones and of course the capitulation to affirming the ideology,” kids are “leaving their bodies behind in search of something they ‘feel’ will make them happy!”

“Transgender children don’t exist – this term was brought into being by a coalition of pressure groups and political activities. It is NOT a scientific or medical term,” she wrote to the board.

“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,” she wrote.

Gillies argued in court that the board’s reasons for denying her a chance to speak were insufficient and the board failed to balance the severity of the infringement of her rights with the board’s objectives and policies which constrained them.

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The board responded that Gillies’ freedom of expression was impacted but “the decision to do so was reasonable,” given reasons provided to her: there are binding obligations in the Education Act, Ontario Human Rights Code and board policies, the court reasons said.

These include “a mandate to provide a positive school climate that is inclusive and accepting of pupils of any sexual orientation, gender identity or gender expression.” The board argued its reasons were “sufficient and, indeed obvious and self-evident.”

It argued its denial balanced competing interests and was “minimally intrusive” because Gillies was offered permission to submit a written presentation to trustees.

The court found the board’s reasons were both “sufficient, and entirely reasonable,” and it found Gillies wasn’t entitled to reasons in the circumstances.

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Reasons are not required for all administrative decisions and tend to be required where the decision-making process gives the parties participatory rights. She had none here, given an earlier ruling found this was an executive committee decision.

Also, board bylaws afford no “right” to make a presentation or to provide reasons for a denial, the court said.

The court noted Gillies made the same presentation to the board a year earlier and so she had been publicly heard. For that reason, and because by law she had no “participatory rights . . . no reasons were required to be given.”

The court assessed the sufficiency of the reasons for preventing her oral presentation this way:

“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, bylaws and policies regarding inclusiveness that bind it, and that permission was being denied for that reason,” its reasons said.

The court imagined a trans student hearing Gillies at a board meeting publicly declare “that they do not, in fact, exist, but are instead the construct of a ‘harmful transgender ideology.’ 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 . . . sexual orientation, gender identity, [or] gender expression . . . ?”

The board’s offer to receive a copy of Gillies’ presentation balanced her freedom-of-speech right with the laws and policies which bind the board, the court said.