Tuesday 23 May 2023

Law unclear on question of parental rights under Policy 713, says law professor

 

Law unclear on question of parental rights under Policy 713, says law professor

Elsewhere in Maritimes, age a factor in whether parents must be told kids are using different names, pronouns

But whether parents have a legal right to be told their children are using different names or pronouns at school isn't clear, says Wayne MacKay, professor emeritus at the Schulich School of Law.

"The whole area is a relatively newer one, of gender identity, and there isn't much in the way of any actual case law or guidance,"  MacKay told Information Morning Fredericton

"There's certainly no Supreme Court of Canada cases, and very few, if any, cases at all in Canada, or even in other places such as the United States."

The debate over a parent's right to know arose with the New Brunswick government's plan to review Policy 713, an education policy that grants certain protections to students who identify as LGBTQ. 

Education Minister Bill Hogan has said the review is being done in response to hundreds of complaints and questions from parents, although the actual number of complaints received remains unknown.

After several demonstrations against such a review — by students, parents and teachers — Progressive Conservative Premier Blaine Higgs promised not to repeal the policy in its entirety, but he has defended the need to reconsider certain sections.

A man in a suit and glasses speaking into a microphone. New Brunswick Premier Blaine Higgs speaking to reporters in defence of reviewing the policy. (Ed Hunter/CBC)

Of particular concern to Higgs and some critics is that Policy 713, which was implemented in 2020, says a principal needs a student's consent to tell parents the student is informally using a different name or pronoun.

Supporters of Policy 713 said changing the consent provisions might endanger students who come from less supportive families.

MacKay said it's too early to say whether supporters of the policy or its critics are legally correct.

"I guess the real answer to that is it's not fully known at this point," he said. 

Each side has a point

MacKay said he thinks New Brunswick is lucky to have a document such as Policy 713 to focus on this issue, but it does not necessarily provide clarity.

He pointed out that the Education Act in New Brunswick gives the parent the "right to reasonable consultation" generally,  which could include such a situation as a student changing their pronouns, but might not.

"Parents are seen as having some rights with regard to their children on things like religion and those kinds of things," said MacKay. "So in general, there are some rights. This specific one is not so clear."

MacKay said the use of a gender pronoun or gender identity that would be "less traditional" may expose the student to bullying or negative consequences that a parent may want to know about.

On the other hand, some families would not be supportive of a child's preferences, so giving the information to the parent could expose the child to harm.

From a legal perspective, the age of the student could also be a factor, he said.

MacKay thinks the argument for a student's rights in this matter is stronger for those 14 or older, with the potential for a sliding scale.

A photo of a man smiling at camera Wayne MacKay, professor emeritus at Dalhousie University's Schulich School of Law, says there are few to no legal precedents on the question. (Submitted by Wayne MacKay)

"It may not still mandate parental consent because the overall rule is the best interest of the child," said MacKay. "So you don't want to expose the child to risk by contacting the parents on this but on the other hand, I think the issues are a bit much more difficult at the young age of the scale."

When asked what other jurisdictions have done on the issue, MacKay said it varies, even within Canada.

"Many do not have any direct policies on it," he said. "Some do like New Brunswick, but some don't. And most of them are dealing with it, but not necessarily in a consistent way."

What neighbouring provinces do

In Prince Edward Island, a document was issued by the Department of Education in 2021 that provides guidelines for respecting and accommodating gender identity and expression in school.

It encourages students to be open with their parent or guardian, but only if safe to do so.

"School staff welcome parental involvement and support with consent from the student and when confident the safety and well-being of the student is not at risk." 

Nova Scotia issued a set of guidelines in 2014 about supporting transgender and gender non-conforming students. The guideline about disclosure to a parent is age-specific.

'When a student requests that their preferred name, gender identity, and/or gender expression be used parental/guardian consent will be requested from grades primary to 6. From grades 7 to 12, if the student has capacity of consent, parental/guardian consent is not required."

ABOUT THE AUTHOR

Vanessa Moreau is a journalist with CBC New Brunswick in Moncton. You can send story tips to vanessa.moreau@cbc.ca.

With files from Information Morning Fredericton

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52 Comments
 
 
 
David Amos
 
Everybody knows I am no fan of Higgy's but even a broken clock is correct twice a day. Much to Cardy's chagrin I agree that 713 needs to be reviewed for rather obvious reasons
 
 
 
 
David Amos

Guess who I called after this story was published?

Survey Says?  

 
 
 
Wilbur Ross
Higgsey probably has a life-size cut out of Ron DeSantis on display in his office. 
 
 
David Amos 
Reply to Wilbur Ross 
I doubt it 
 
 
David Amos 
 
Reply to Wilbur Ross 
That Yankee would never fall for a Cardy con job 
 
 
Mark Benson 
Reply to Wilbur Ross
Maybe Desantis has a Higgs cut out  


 
 
David Amos 
Reply to Ellen Moore
Amen 
 
 
 
 
David Amos 
Reply to Jake Newman 
Good question  
 
 
Graham McCormack 
Reply to Jake Newman
None of the supporter are making that decision.
 
 
Paula Carr  
Reply to Jake Newman  
Might want to ask the kid why they would not want disclose their identity preference to their parent(s).
 
 
David Amos 
Reply to Paula Carr 
Might??? That should be the first question


Paula Carr  
Reply to David Amos  
Of course - for those with common sense. 


Jim Lake 
Reply to Jake Newman 
What gives opposers of the policy the right to think it’s ok for a teacher or counsellor, when told something by a student in confidence, to break that confidence … what type of teaching is that for the student? - not good education, that’s for sure.  
 
 
Mark Benson 
Reply to Michael Cain 
So kids make all the decisions now?  
 
 
Michael Cain 
Reply to Jake Newman 
As to the intent of the policy, let kids be kids. 
 
 
 
 
 
 
Inger Nielsen 
if you are a fully supportive partent that loves your child unconditionally you will not need to worry about the school letting you know because your child will already know you are safe person providing a safe space for them to be able to come to you to have open honest discusions about gender, sexuality,and anything else that is on your childs mind. 
 
 
David Amos 
Reply to Inger Nielsen 
Yea right  
 
 
Paula Carr  
Reply to Inger Nielsen 
Open and honest communication with your child about whatever is on their mind is key. 
 
 
David Amos 
Reply to Paula Carr 
I concur 
 



 
Tom Smith
If a child has mustered the courage to talk to a teacher ... someone they've only likely known for less than a year ... about something as personal as gender identity and names, but still hesitant to tell their parents, then there is probably a very good reason.  
 
 
David Amos 

Reply to Tom Smith 
Tut Tut Tut 




John Montgomery  
So some kids are already uncomfortable talking to their parents about their sexuality. So those parents want to make sure they won't even be comfortable talking to the school, got it.

Doesn't seem like a good way to parent.

 
David Amos 
Reply to John Montgomery  
So you say 
 
 
 
 
 
 
G. Timothy Walton 
How many of the hundreds of complaints came from Higgs, Austin, and Hogan?  
 
 
David Amos 
Reply to G. Timothy Walton 
How many did not come from them?
 
 
G. Timothy Walton 
Reply to David Amos
Three, so far as we know.
 
 
David Amos 
Reply to G. Timothy Walton
Do you really believe that?   
 
 
Paula Carr  
Reply to David Amos 
Enlighten us! 

 
David Amos 
Reply to Paula Carr 
Look for your words in my blog then keep reading  
 
 
David Amos 
Reply to Paula Carr 
Court documents allege staff of former premier 'personally harassed' Chris Collins

Former speaker says he was targeted for rejecting Liberal attacks on PC leader Blaine Higgs

Jacques Poitras· CBC News· Posted: Nov 10, 2020 4:51 PM AT 

 
Paula Carr  
Reply to David Amos  
What???
 
 
David Amos 
Reply to Paula Carr   
Try Google 
 
 
Paula Carr  
Reply to David Amos 
What do these articles have to do with the question above?  
 
 
David Amos 
 
Reply to Paula Carr  
I am trying to give you tips without being blocked 


G. Timothy Walton  
Reply to David Amos
I think Lamrock would have mentioned if any of their names were signed to the three emails he was copied. 


David Amos 
  
Reply to G. Timothy Walton 
He signed the Butter Tart Note  
 
 
David Amos 
  
Reply to G. Timothy Walton
   
 
 
 
 
 
Mark Benson  

How about this , at school every one is a they and all bathrooms are single stall and neutral  
 
 
David Amos 
Reply to Mark Benson
Surely you jest



 
 

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