The Fundamental Rights of Trans and Nonbinary Minors in Schools: Challenges in Canada

by | Mar 18, 2024

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About Robert Leckey and Florence Ashley and Samuel Singer

Robert Leckey is Samuel Gale Professor and Dean of McGill University’s Faculty of Law. Florence Ashley is an assistant professor at the University of Alberta’s Faculty of Law and John Dossetor Health Ethics Centre. Samuel Singer is an assistant professor at the University of Ottawa’s Faculty of Law.

The pernicious instinct to roll back the rights of trans and nonbinary folks for political gain has drifted north from the USA to Canada. Three provinces have recently announced reductions to the capacity for trans and nonbinary minors to decide the name and gender used for them in school. Legal challenges against these policies call for refining our understanding of children’s and youths’ fundamental rights in this context.

Requirements for parental consent before schools honour students’ self-identification have been set up in New Brunswick and Saskatchewan. Alberta has promised to follow suit. That province also plans to ban puberty blockers and hormonal treatment for children under 16 and to require parental consent for lessons about sex education, sexual orientation, and gender identity.

The governments acting have stressed the perceived imperative of protecting parents’ rights over their children’s education. But the Canadian Charter of Rights and Freedoms does not expressly protect “parental rights”. If implicit in the right to autonomy or freedom of religion, such rights – which may “exist[] for the sole purpose of enabling parents to ensure their children’s well‑being” (Augustus v Gosset [53]) – must be reconciled with those express guarantees applying to children and youth.

The challenge in Saskatchewan foregrounds three Charter provisions. One is the guarantee of life, liberty, and security of the person, and the right not to be deprived of them except in accordance with the principles of fundamental justice (section 7). Another is the guarantee of equality and freedom from discrimination (section 15). Yet another is the right not to be subjected to cruel and unusual treatment or punishment (section 12). The Charter’s section 1 contemplates that each guarantee may be limited reasonably by law. Enacting its policy, Saskatchewan triggered an exceptional mechanism in the Charter, the “notwithstanding clause” (section 33): it specified that the law would operate “notwithstanding” or despite sections 2, 7, and 15.

The claims demand sensitivity to intersectionality. Age – a suspect basis for decision making, listed in section 15 – requires attention. Its transitory nature makes tolerable the young person’s temporary incapacity to vote or get a driver’s licence. But at any moment it is unalterable. For example, a child or youth cannot escape a legal requirement to attend school, even if that environment harms them. Sex appears in the non-exhaustive list in section 15 and may be construed broadly. Alternatively, gender identity and gender expression may be ripe for recognition as “analogous” grounds (see Hansman v Neufeld [88]), as found by some lower courts. The challengers have made arguments about the notwithstanding clause, said to be a political matter on which voters judge their representatives. Will the court take account of children’s acute vulnerability, given their voicelessness in the political process?

The guarantee against cruel and unusual punishment or treatment in section 12 is often associated with prison, including when trans people are denied gender-affirming care. The claim demands engagement with the reality that mandatory schooling places children and young people in an unchosen institution for many of their waking hours. Respecting students’ fundamental rights in schools is essential, given the coercive powers of governance wielded over them in that setting.

Throughout the analysis, the effects of requiring parental consent for young people’s identification must be central. Such a requirement makes the most difference where parents do not respect and accept their children’s identity.

Canada has ratified the Convention on the Rights of the Child but not implemented it by domestic legislation. Nevertheless, such instruments may influence interpretation of the Canadian Charter. It is thus relevant that the Committee on the Rights of the Child has commented on Article 29 that education should “be child-centred, child-friendly and empowering,” stressing that children “do not lose their human rights by virtue of passing through the school gates.” For some authors, the Convention right to preserve one’s identity includes gender identity.

The backlash against trans and nonbinary youth is crossing borders and growing globally. Learning on the part of advocates and decision makers concerned with upholding children’s and youth’s fundamental rights should do so too.

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