The Queer Justice Project (QJP), the Hamilton Community Legal Clinic (HCLC), and the Hamilton Trans Health Coalition (HTHC) condemn the recent actions of the Premiers of New Brunswick, Manitoba, and Saskatchewan with regards to promised or implemented discriminatory and unconstitutional changes to school policies relating to name changes and pronoun usage. We also note the recent concerning comments made by Ontario’s Education Minister Stephen Lecce, stating that “parents must be fully involved” when youth elect to use a different pronoun at school. We call on each government to reverse these policy decisions and to commit themselves to respecting the human rights of all students, and to creating inclusive, supportive, and healthy school environments for all youth. We caution other provinces against taking similar actions.
Specifically, New Brunswick has implemented changes to Policy 713 that will now require that youth under the age of 16 seek parental consent to change the names and pronouns used while at school, and removes the guarantee that children will be able to participate in sports and extracurricular activities which are consistent with their gender identity. Saskatchewan is also requiring youth under 16 to obtain parental consent to change the names and pronouns used at school, and has also undermined the provision of sexual health education by enabling parents to decline their child’s participation and by prohibiting third-party educators. Manitoba’s current Premier has made election promises relating to expanding “parental rights”, though the exact nature and wording of these changes are unclear. The Premier did indicate that at minimum parental rights to be informed of their child’s request to change the name and pronouns used at school would be part of the consultations on these changes. Ontario’s intentions on this matter are not clear as of yet, though the comments of the Education Minister certainly suggest an intention to make similar discriminatory changes to their policies.
These policies will undoubtedly cause severe and irreparable harm to many Trans and gender diverse students. The unfortunate reality is that many young Queer community members cannot rely on positive reactions or supportive responses to their Queer identities, should they be revealed to their families. The emotional, social, psychological, and potentially physical negative consequences of being forcibly “outed” are well known to experts and Queer communities. Forcibly outing a Queer individual is an act of violence. Homophobia, and particularly transphobia, remain significant issues within our society, as these policies demonstrate.
These governments do not deserve the benefit of the doubt or the presumption of good intentions in the introduction of these policies. There was no problem that these policies are meant to solve, no legitimate purpose they could possibly serve other than to interfere with the very personal decisions of Queer youth of when, or if, to reveal their identities to their families. They have failed to define any specific right of parents that is being violated or harm being suffered by parents due to schools respecting the requested names and pronouns of their students.
These policy decisions cannot be removed from the context of a growing movement of hate and conspiracy towards Queer identities generally, and Trans identities specifically. This includes a significant lack of understanding, and the purposeful spreading of disinformation by some, relating to gender affirming health care, particularly for youth.
These policies, notably all emanating from conservative provincial governments, with tacit support from the current federal Conservative party leader, are a continuation and escalation of the rise Transphobia and general anti-Queer sentiments being witnessed in our society. It also mirrors some of the transphobic legislative and policy decisions being made in parts of the United States. These policies are blatantly discriminatory and unconstitutional. They must be reversed.
Each province has sought to justify these decisions and comments by citing “parental rights”. However, it is clear that these policy changes, whether intentionally or not, will have a significant negative and discriminatory impact on Queer students. Policy changes relating to name and pronoun usage by students at school are inherently related to the gender identities of students, which is a prohibited ground of discrimination under provincial human rights laws, federal human rights law and the Charter of Rights and Freedoms, and internationally recognized human rights and rights of children.
Children under the age of 18 are rights holders in their own right, including rights to be free from discrimination based on their personal characteristics, freedoms of expression and of conscience, and a right to privacy. Equally, Canadian family law, including in each of these provinces, provides that the overriding interest will always be the “best interests of the child”, with the primary considerations being the physical, emotional, and psychological safety and security of the child. Children are also given rights to participate in the decisions made about them and their care, in accordance with their age and capacity, giving them the right to an evolving degree of autonomy. In many jurisdictions, where youth have shown a level of independence and self-sufficiency before attaining the age of 18, they can be deemed to have removed themselves from parental authority.
In contrast, the term “parental rights” is becoming a commonly used right-wing extremist political catchphrase primarily seen in relation to advocating for greater restrictions on a school system’s ability to address topics relating to diversity initiatives and sexual education, specifically in relation to sexual orientation and gender identity. The sudden fervour in support of parental rights does not include any apparent interest in any topics or educational goals other than sexual health, sexual orientation, gender identity, or other diversity initiatives. It is a hate movement fuelled by a moral panic.
The term “parental rights” is rarely explicitly seen in Canadian law, though there are rights related to the integrity of and non-interference with the family unit that are owed to all its members. Parental participation rights within existing school systems, as outlined in the education legislation of various provinces, also exist. Many provincial laws instead utilize definitions for terms like “decision-making responsibility”, “parenting time”, and “parental responsibilities”, which relate to the concepts of custody and access. These terms demonstrate a recognition that the fundamental nature of the relationship of a parent to their child is one of responsibility, not of rights. These responsibilities relate to the obligation to provide support and guidance to a child, whose right it is to receive these from their parents. Parents do not own their children. As a result, parental rights are not absolute and can be terminated where there is a compelling reason, including where it is determined to be in the best interests of the child.
No one denies that ideally parents would be able to be informed and involved in all important aspects of their child’s life, and that all children should be confident that being fully open with their parents would result in nothing but love and support. But that is not reality. Pretending it is erases the vast majority of Canadian and global history, including the situation in the majority of the world today, where Queer identities are the frequent targets of discrimination, criminalization, ostracization, and violence. This includes the perpetuation of these acts by immediate family members.
Beyond the ahistorical nature of these policies, it is quite clear that these policy decisions are being made without proper consultations with youth who may be affected, Queer communities, or experts on children’s health and well-being. The government of New Brunswick was unable to produce any evidence of the complaints they alleged initiated the review of Policy 713, and once initiated, many stakeholders in New Brunswick expressed concern about their exclusion from any consultation process. The government of Saskatchewan has avoided answering the question of what experts were consulted in making these changes, and instead has reiterated the importance it places on the perspective of parents and has pointed to apparent popular support for the policy in opinion polls.
To be clear, the purpose of human rights legislation and the Charter is to protect vulnerable minorities from the potentially discriminatory attitudes and actions of the majority. Popular support for a discriminatory policy does not save it under Canadian law, and in fact reinforces the need for protection of that group.
In mid-August, the New Brunswick Child and Youth Advocate, Kelly Lamrock, issued a report that included a comprehensive overview of the history of Policy 713, its purpose, the review process, and the legal framework around parents’ rights and the rights of children. After a legal analysis, including the consideration of the perspectives of parents, students, and experts, the report concluded that the changes to Policy 713 violate the Charter rights of Trans and gender-diverse youth to be free from discrimination, to privacy, and to have their needs accommodated. We would highly encourage everyone to read this report in full.
The recent announcement of the policy changes in Saskatchewan have met similar conclusions of human rights violations from the Canadian Civil Liberties Association, which plans to support a legal challenge that has now been filed by national Queer organization Egale and the University of Regina’s UR Pride. The Saskatchewan Advocate for Children and Youth, who was not consulted prior to the announcement of the policy changes, has also indicated her plans to review the new policy while expressing concern over its contents.
Any changes to the accessibility of washrooms that conform to a student’s gender identity would also be a violation of the human rights of students. While the New Brunswick policy changes do not appear to impede this right, it ought to be recognized that the right to the use of washroom facilities in accordance with a person’s gender identity is settled law in Canada. Similarly, the right for all to play in sports and engage in recreational activities generally in accordance with a person’s gender identity ought to be respected. The change in language in Policy 713 does remove the explicit recognition of this, which is unfortunate and should be restored. Trans and gender-diverse students deserve to have their rights explicitly acknowledged and reinforced.
The undermining of sexual health education in Saskatchewan, while not amounting to discrimination, will certainly undermine the health and safety of students and society at large. Comprehensive and fully resourced sexual education is a public good that helps educate youth in an effort to prevent abuse, unwanted pregnancies, and health issues like STIs. Comprehensive sexual education also includes resources and education that acknowledge the diversity of human sexuality and relationships. Third party resources previously used in Saskatchewan that address topics related to diversity were cited as examples by the government of Saskatchewan of what would no longer be permitted. Health experts in Saskatchewan have expressed their concern about the negative impacts these changes will have. Saskatchewan cited parental interests once again as the reason for these changes. It is unclear what role considerations around the health and safety of students played in this decision, or who was consulted prior to their announcement.
The policies being introduced requiring students under 16 years of age to obtain consent from their parents to change the names or pronouns used while at school are discriminatory violations of Canadian constitutional and human rights laws. Anything less than comprehensive and fully resourced sexual health education puts the health and safety of children and broader society at risk. We call on each of these provinces to reverse their decisions, commit themselves to respecting the human rights of all students, and to creating inclusive, supportive, and healthy school environments for all youth. We caution all other provinces against taking similar actions.
