Decency Laws vs. Discrimination Laws
<p>Apropos of <a href="https://nationalpost.com/news/canada/ontario-halton-district-school-board-teacher-dress-code-giant-fake-breasts" rel="nofollow noreferrer">this</a>.</p>
<p>Brief background: Teacher in Canada transitions from male to female.  Teacher purchases extremely oversized prosthetic breasts which they use as part of their gender reassignment, and wear a top over their breastplate which wears tightly around the breastplate and shows the nipples.  Parents and (some) news media are outraged.  School board claims they can't discipline or reprimand, the teacher in any way, or ask the teacher to change their behaviour, or even institute a general dress code for staff that would cover this situation, due to anti-discrimination statutes.</p>
<p>Question: Where is the legal line between what is considered a &quot;decency law&quot; (public indecency, pornography, nudity) and a &quot;discrimination law&quot; (not accepting someone on the basis of discrimination)? Legally speaking, how does it affect the situation if the person in question was primarily associating with minors, in a role of authority?  I would assume it is not irrelevant given legal underpinnings of laws such as child pornography and statutory rape.</p>

<p>I think you misunderstand some of the relationships between laws, decisions, and justifications, and you're conflating two separate areas of jurisprudence. The linked real-world example you provide is happening in the employment context, but also in a government context (since it is a public school). But all the examples in your list have nothing to do with employment law and would be purely statutory/regulatory prohibitions. I will attempt to answer broadly enough to cover both domains.</p>
<h3>Laws and regulations can be challenged as discriminatory</h3>
<p>The things you have listed under &quot;decency law&quot; would be criminal or regulatory matters. A preliminary question would be whether the laws as written even capture the behaviours you've described. To the extent that they result in discrimination, the laws could be challenged as breaches of <a href="https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art15.html" rel="nofollow noreferrer">s. 15</a> (right to the equal protection and equal benefit of the law without discrimination) of the <em>Canadian Charter of Rights and Freedoms</em>. There may be other <em>Charter</em> arguments too, if the laws affect expression or life, liberty, or the security of the person. (Public decency / nudity laws are more frequently challenged on grounds of free expression.)</p>
<h3>Decisions of school boards are subject to the <em>Charter</em></h3>
<p>The <em>Charter</em> almost certainly applies to decisions of public school boards and schools. See <em>Elementary Teachers Federation of Ontario v. York Region District School Board</em>, 2022 ONCA 476, <a href="https://canlii.ca/t/jpw5l#par38" rel="nofollow noreferrer">paras. 39-41</a>. These decisions could be challenged by judicial review (i.e. court review of an administrative decision-maker's decisions) and would be analyzed for reasonableness, including whether the decision strikes a proportionate balance between the <em>Charter</em> right and the statutory objectives (<em>Doré v. Barreau du Québec</em>, <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7998/index.do" rel="nofollow noreferrer">2012 SCC 12</a>).</p>
<h3>Even if there is an infringement, the government gets a chance to justify it</h3>
<p><em>If you're looking for some sort of a &quot;line&quot; it is found in the justification or reasonableness analysis</em>.</p>
<p>Where a law or regulation is challenged, and if a breach of s. 15 is established, then the onus is on the government to justify the breach as a reasonable limit as allowed by <a href="https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art1.html" rel="nofollow noreferrer">s. 1</a> of the <em>Charter</em>. <strong>This will depend on the importance of the government objective</strong>, whether there is a rational connection between the objective and the law, whether the law is minimally impairing, and whether the impact on the claimant is proportional to the salutary effects of the law.</p>
<p>When a court reviews an administrative decision for reasonableness, it is &quot;engaged in balancing somewhat different but related considerations, namely, has the decision-maker disproportionately, and therefore unreasonably, limited a Charter right. In both cases, we are looking for whether there is an appropriate balance between rights and objectives, and the purpose of both exercises is to ensure that the rights at issue are not unreasonably limited&quot; (Doré, para. 6).</p>
<p>In each of your examples, the judgments would be highly fact-based and it is fruitless to speculate about what the evidence might show.</p>
<h3>Relevance of association with minors</h3>
<p>You ask whether it would matter &quot;<em>if the person in question</em> was primarily associating with minors.&quot; This likely would not matter if a law was challenged, because such challenges are about the validity of the <em>law</em>, not the factors that might render its applicability to a particular person to be more or less justified. But <strong>if the law itself had the <em>purpose</em> of protecting children, or if the law itself was targetted solely at those associating with minors or those in positions of authority over minors, this would be a factor weighing in favour of justification</strong> of the infringing law (<a href="https://canlii.ca/t/1ft6g" rel="nofollow noreferrer"><em>Irwin Toy</em></a>, <a href="https://canlii.ca/t/523f" rel="nofollow noreferrer"><em>R. v. Sharpe</em></a>). Whether the person in question was primarily associating with minors <em>would</em> matter in the context of an administrative decision, because these decisions are case-specific.</p>
<h3>Some anti-discrimination statutes provide more protections</h3>
<p>Ontario's Human Rights Code potentially contains even further protections. Section 5 says that every person has a right to equal treatment with respect to employment without discrimination because of sex, gender identity, gender expression, and other enumerated factors. Section 24 provides for exceptions to that right in educational settings (and some others) where what would otherwise be discrimination is actually a <em>bona fide</em> qualification of the employment and if it cannot be accommodated without undue hardship on the employer. These judgments are also highly fact-based and it would be fruitless to speculate about what the evidence might show.</p>

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