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

What is the main issue raised by the reading?

The reading examines the rollback of rights of trans and nonbinary youth in Canada and asks how children’s and youths’ fundamental rights should be understood in legal challenges to these policies.

What trend does the reading identify regarding the rights of trans and nonbinary people?

The “pernicious instinct to roll back the rights of trans and nonbinary folks for political gain” has “drifted north from the USA to Canada.”

What has recently happened in three Canadian provinces regarding trans and nonbinary minors?

Three provinces have announced reductions to the capacity for trans and nonbinary minors to decide the name and gender used for them in school.

Why are legal challenges to these policies important?

They call for refining the understanding of children’s and youths’ fundamental rights in this context.

Which provinces have established parental-consent requirements before schools honour students’ self-identification?

New Brunswick and Saskatchewan.

What has Alberta promised to do regarding parental consent?

Alberta has promised to follow suit by requiring parental consent before schools honour students’ self-identification.

What has Alberta planned regarding puberty blockers and hormonal treatment?

It plans to ban puberty blockers and hormonal treatment for children under 16.

What has Alberta planned regarding sex education?

It plans to require parental consent for lessons about sex education.

What has Alberta planned regarding sexual orientation education?

It plans to require parental consent for lessons about sexual orientation.

What has Alberta planned regarding gender identity education?

It plans to require parental consent for lessons about gender identity.

What have the governments implementing these policies emphasized?

They have stressed the perceived imperative of protecting parents’ rights over their children’s education.

Does the Canadian Charter of Rights and Freedoms expressly protect “parental rights”?

No. The Canadian Charter of Rights and Freedoms does not expressly protect “parental rights.”

Where might parental rights be implicit under the Charter?

They may be implicit in the right to autonomy or freedom of religion.

What is the purpose of parental rights according to Augustus v Gosset?

Such rights may “exist[] for the sole purpose of enabling parents to ensure their children’s well-being.”

What must parental rights be reconciled with?

Parental rights must be reconciled with the express guarantees of the Charter that apply to children and youth.

What Charter challenge is discussed in relation to Saskatchewan?

The challenge to Saskatchewan’s policy foregrounds three Charter provisions: sections 7, 15, and 12.

What does section 7 of the Canadian Charter guarantee?

It guarantees 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.

What does “security of the person” refer to in section 7?

[DEFINITION: A protected interest under section 7 involving a person’s security and fundamental well-being.]

What does “principles of fundamental justice” mean in section 7?

[DEFINITION: Fundamental legal principles that govern whether a deprivation of life, liberty, or security of the person is legally acceptable.]

What does section 15 of the Charter guarantee?

It guarantees equality and freedom from discrimination.

What does section 12 of the Charter guarantee?

It guarantees that people must not be subjected to cruel and unusual treatment or punishment.

What does section 1 of the Charter provide?

It contemplates that each Charter guarantee may be limited reasonably by law.

What is the basic idea of section 1?

[DEFINITION: Charter rights are not absolute; rights may be subject to reasonable limits prescribed by law.]

What happened when Saskatchewan enacted its policy?

Saskatchewan triggered an exceptional mechanism in the Charter, the “notwithstanding clause” (section 33).

What is the notwithstanding clause?

Section 33 of the Charter allows a law to operate “notwithstanding” or despite certain Charter rights.

What did Saskatchewan specify regarding its law and the notwithstanding clause?

It specified that the law would operate “notwithstanding” or despite sections 2, 7, and 15.

Which Charter sections did Saskatchewan’s law specify it would operate notwithstanding?

Sections 2, 7, and 15.

Why is the notwithstanding clause described as an “exceptional mechanism”?

Because it allows legislation to operate despite certain Charter guarantees.

What three Charter provisions are particularly foregrounded by the Saskatchewan challenge?

Section 7 (life, liberty, and security of the person), section 15 (equality and freedom from discrimination), and section 12 (cruel and unusual treatment or punishment).

What issue concerning intersectionality do the claims raise?

The claims demand sensitivity to intersectionality.

Why does age require attention in the intersectional analysis?

Age is a suspect basis for decision making and is listed in section 15.

What does the reading say about the transitory nature of age?

Its transitory nature makes tolerable a young person’s temporary incapacity to vote or get a driver’s licence.

What does “transitory” mean in relation to age?

[DEFINITION: Age changes over time; a person is only temporarily at a particular age.]

Why is age nevertheless unalterable at any particular moment?

At any moment, a person cannot simply change their age.

What example does the reading give to demonstrate the significance of age being unalterable at a given moment?

A child or youth cannot escape a legal requirement to attend school, even if that environment harms them.

Why is the school-attendance example important to the argument about age?

It demonstrates that although youth is temporary, young people cannot simply change their age to escape legal requirements or environments that affect them.

Where does sex appear in section 15?

Sex appears in the non-exhaustive list in section 15.

What does it mean that the section 15 list is “non-exhaustive”?

[DEFINITION: The listed grounds are not the only possible grounds of discrimination protected by section 15.]

How might sex be interpreted in this context?

Sex may be construed broadly.

What other characteristics may potentially be recognized as section 15 grounds?

Gender identity and gender expression may be ripe for recognition as “analogous” grounds.

What is an analogous ground?

[DEFINITION: A ground of discrimination not expressly listed in section 15 but recognized as sufficiently comparable to the listed grounds to receive constitutional equality protection.]

What case is cited regarding gender identity and gender expression as analogous grounds?

Hansman v Neufeld.

What does Hansman v Neufeld illustrate in this reading?

It is cited as support for the possibility that gender identity and gender expression may be recognized as analogous grounds.

What have some lower courts found regarding gender identity and gender expression?

Some lower courts have found gender identity and gender expression to be “analogous” grounds.

What arguments have the challengers made about the notwithstanding clause?

The challengers have made arguments about the notwithstanding clause, which is said to be a political matter on which voters judge their representatives.

Why might the notwithstanding clause be considered a political matter?

It is said to be a matter on which voters judge their elected representatives.

What question does the reading raise about children and the notwithstanding clause?

Whether the court will take account of children’s acute vulnerability, given their voicelessness in the political process.

Why does the reading emphasize children’s vulnerability?

Children may be acutely vulnerable and voiceless in the political process.

What does “voicelessness in the political process” mean in this context?

[DEFINITION: Children have limited ability to participate directly in political decision making and therefore may have less influence over policies affecting them.]

What guarantee is found in section 12 of the Charter?

The guarantee against cruel and unusual punishment or treatment.

What is section 12 often associated with?

It is often associated with prison.

How can section 12 relate to trans people?

It can relate to situations in which trans people are denied gender-affirming care.

What does the reading say about trans people being denied gender-affirming care?

It notes that section 12 is often associated with prison, including when trans people are denied gender-affirming care.

Why does the section 12 claim require engagement with mandatory schooling?

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.

What does mandatory schooling mean in this context?

[DEFINITION: Children and young people are legally required to attend school, meaning school is an institution they do not freely choose to attend.]

Why is the fact that schooling is mandatory important to the legal analysis?

Children and young people spend many of their waking hours in an unchosen institution where governance exercises coercive powers over them.

Why is respecting students’ fundamental rights in schools essential?

It is essential given the coercive powers of governance wielded over students in that setting.

What does “coercive powers of governance” mean in the school context?

[DEFINITION: The authority exercised by schools and governments to require attendance and compliance with institutional rules.]

What must be central throughout the analysis of parental-consent requirements?

The effects of requiring parental consent for young people’s identification must be central.

Where does a requirement for parental consent make the most difference?

It makes the most difference where parents do not respect and accept their children’s identity.

Why is parental acceptance particularly important in this context?

Because a requirement for parental consent can prevent schools from honouring a young person’s self-identification when the parents do not respect or accept the child’s identity.

What international human rights instrument has Canada ratified?

The Convention on the Rights of the Child.

Has Canada implemented the Convention on the Rights of the Child through domestic legislation?

No. Canada has ratified the Convention on the Rights of the Child but has not implemented it by domestic legislation.

Can international human rights instruments still influence interpretation of the Canadian Charter?

Yes. Such instruments may influence interpretation of the Canadian Charter.

Why is the Convention on the Rights of the Child relevant to this discussion?

It provides an international human rights framework concerning children that may influence interpretation of the Canadian Charter.

What does the Committee on the Rights of the Child say about education under Article 29?

Education should “be child-centred, child-friendly and empowering.”

What three characteristics does the Committee on the Rights of the Child emphasize for education?

Education should be “child-centred, child-friendly and empowering.”

What does “child-centred” mean in the context of Article 29?

[DEFINITION: Education should place children’s needs, experiences, and rights at the centre.]

What does “child-friendly” mean in the context of Article 29?

[DEFINITION: Education should be structured in a way that respects and supports children.]

What does “empowering” mean in the context of Article 29?

[DEFINITION: Education should support children’s ability to develop and exercise their rights and agency.]

What does the Committee on the Rights of the Child stress about children’s human rights?

Children “do not lose their human rights by virtue of passing through the school gates.”

Why is the phrase “children do not lose their human rights by virtue of passing through the school gates” important?

It emphasizes that attending school does not remove or suspend children’s human rights.

What does the reading say about the Convention right to preserve one’s identity?

For some authors, the Convention right to preserve one’s identity includes gender identity.

What aspect of identity may potentially be protected under the Convention on the Rights of the Child?

Gender identity may be included within the right to preserve one’s identity.

What is the broader global trend identified at the end of the reading?

The backlash against trans and nonbinary youth is crossing borders and growing globally.

What does the reading say advocates and decision makers should do in response to this global trend?

Learning on the part of advocates and decision makers concerned with upholding children’s and youth’s fundamental rights should do so too.

What does the reading mean by saying that learning should “do so too”?

It argues that advocates and decision makers should learn across borders as the backlash against trans and nonbinary youth becomes increasingly global.

What is the central legal tension regarding parental rights in this reading?

Claims about parents’ rights must be reconciled with the express Charter guarantees applying to children and youth.

What is the central concern about requiring parental consent for students’ identification?

The effects of the requirement are especially significant where parents do not respect and accept their children’s identity.

What are the main Charter rights directly discussed in the Saskatchewan challenge?

Section 7: life, liberty, and security of the person; section 15: equality and freedom from discrimination; and section 12: protection against cruel and unusual treatment or punishment.

What other Charter provisions are important to understanding the Saskatchewan policy?

Section 1, which allows reasonable limits on rights, and section 33, the notwithstanding clause.

What is the relationship between section 1 and the Charter rights discussed?

Section 1 contemplates that each guarantee may be limited reasonably by law.

What is the relationship between section 33 and the Saskatchewan policy?

Saskatchewan invoked section 33 so that its law would operate notwithstanding sections 2, 7, and 15.

What characteristics are particularly important to the intersectional analysis?

Age, sex, gender identity, and gender expression.

Why is age relevant to equality analysis even though it is temporary?

Although age changes over time, at any given moment it is unalterable, and young people remain subject to legal requirements such as mandatory schooling.

Why is mandatory schooling particularly relevant to children’s rights?

It places children and young people in an unchosen institution for many of their waking hours, where governance exercises coercive powers over them.

What is the connection between school and fundamental rights in the reading?

Students retain their fundamental rights in school, making respect for those rights essential in a setting where governance exercises coercive powers.

What is the connection between parental consent and children’s autonomy?

Parental consent can limit a young person’s ability to have their own identification recognized, particularly where parents do not accept their identity.

What is the connection between parental rights and children’s rights?

Any parental rights must be reconciled with the express guarantees applying to children and youth.

What is the connection between the Convention on the Rights of the Child and the Charter?

Although Canada has not implemented the Convention through domestic legislation, international human rights instruments may influence interpretation of the Canadian Charter.

What does Article 29 contribute to the discussion?

It emphasizes that education should be child-centred, child-friendly, and empowering.

What does the Convention suggest about children’s rights at school?

Children do not lose their human rights by attending school.

What possible connection does the Convention make between identity and gender identity?

For some authors, the Convention right to preserve one’s identity includes gender identity.

What is the reading’s overall concern about trans and nonbinary youth policies?

Policies reducing trans and nonbinary minors’ ability to decide the name and gender used for them in school raise significant questions about children’s and youths’ fundamental rights.

What is the reading’s overall point about children’s rights?

Children and youth have fundamental rights that must be considered alongside claims about parental rights, equality, liberty, security, treatment, and education.

What is the reading’s overall point about schools?

Schools are important sites for rights protection because children are required to attend and are subject to coercive powers of governance while there.

What is the reading’s overall point about trans and nonbinary youth?

The legal analysis must account for their identity, vulnerability, age, equality rights, and the effects of policies requiring parental consent.

What is the reading’s overall point about the global context?

The backlash against trans and nonbinary youth is growing and crossing borders, so advocates and decision makers should also learn and respond across borders.