Can’t Ask; Don’t Tell

Schools hiding gender transition from parents.

One of the most frightening things that can happen to the parents of a gender-questioning child is learning that the school has agreed to change a child’s name and pronouns without telling them. In fact, other students in the school may be explicitly instructed not to share this information with the child’s parents.

What is Happening

The practice of supporting social gender transition of a child without consulting the parents has been endorsed by all three levels of government in Canada. A booklet by the Public Health Agency of Canada on Gender Identity in Schools states: “Families are not always a safe place for gender variant youth. It is important not to involve the parents/caregivers of gender variant youth unless the youth themselves have already disclosed their identity to their families or you have a legal duty to report such as in the case of risk of self-harm.”

Some perspective is important. Teachers and other adults do not have to repeat everything a child tells them. Children have the right to the privacy of their own thoughts. When they share a private thought or feeling in confidence with a trusted adult, that confidence should be respected even against parents. It is also true that home is sometimes not a safe place. If teachers genuinely believe that a student is at risk of abuse at home they should be reporting it so it can be investigated by a properly trained child welfare worker.

However, there is a line between a child’s private thoughts and public conduct. Schools cross that line when they take active steps to affirm a child’s gender identity. It is one thing for a teacher not to repeat something a child says. It is another to take steps which involve the whole school and deliberately refrain from telling a child’s parents.

The Toronto District School Board has a policy which states

There is no age limit on making an accommodation request, and young students have the same rights to privacy and to have accommodations made on their behalf with or without their guardians' knowledge.

…

A school should never disclose a student’s gender non‐conformity or transgender status to the student’s parent(s)/guardian(s)/caregiver(s) without the student’s explicit prior consent. This is true regardless of the age of the student.

What this seems to say is that a student, of any age, can request accommodation, which might include use of a different name and pronouns or access to access to the washrooms of the opposite sex without notifying their parents or guardians. This policy is typical of school division policies throughout Ontario and in other parts of Canada.

A teacher in California is going further and has set up a “transition closet” which allows children to change into clothes that “fit who they truly are” when they get to school and change back before going home.

Why It’s Wrong

This is wrong on many levels. It ignores basic principles of child development which have found that children’s identity is in a state of flux and that children require adult guidance. It also defies basic principles of domestic and international law which recognize that the family is the primary source of guidance and support for children.

Social transition during childhood and adolescence is a medical intervention which can have irreversible effects. Studies have consistently found that children who are socially transitioned are more likely to persist in their gender dysphoria and proceed to medical transition, with lifelong consequences, while children who are not transitioned are likely to desist. Policies such as the Endocrine Society guidelines explicitly recommend against social transition without the involvement of a mental health professional.

Gender dysphoria is often associated with mental health conditions including depression, autism spectrum conditions, eating disorders and borderline personality disorders. Teachers and school counsellors do not have the training to diagnose these conditions and seldom know a child’s full medical history. School policies will not allow a teacher to give a child so much as a non-prescription painkiller without permission in writing from the parents. A change of name and pronouns can have an impact on a child’s developing mind which is as profound and permanent as any drug.

When schools exclude parents from critical decisions affecting a child’s future, they violate the principle, recognized in both Canadian and international law, that children have a right to be raised by their parents.

The United Nations Convention on the Rights of the Child states,

Article 5

States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.

Article 9

1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.

Article 14

1. States Parties shall respect the right of the child to freedom of thought, conscience and religion.

2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.

The principles of the U.N. Convention are not directly part of Canadian law, but they have been embedded in provincial child welfare legislation. For example the preamble to The Child and Family Services Act of Manitoba reads:

The Legislative Assembly of Manitoba hereby declares that the fundamental principles guiding the provision of services to children and families are:

The safety, security and well-being of children and their best interests are fundamental responsibilities of society.

The family is the basic unit of society, and its well-being should be supported and preserved.

The family is the basic source of care, nurture and acculturation of children and parents have the primary responsibility to ensure the well-being of their children.

Families and children have the right to the least interference with their affairs to the extent compatible with the best interests of children and the responsibilities of society.

Children have a right to a continuous family environment in which they can flourish.

Families and children are entitled to be informed of their rights and to participate in the decisions affecting those rights.

Families are entitled to receive preventive and supportive services directed to preserving the family unit.

Families are entitled to services which respect their cultural and linguistic heritage.

Decisions to place children should be based on the best interests of the child and not on the basis of the family's financial status.

Communities have a responsibility to promote the best interests of their children and families and have the right to participate in services to their families and children.

Indian bands are entitled to the provision of child and family services in a manner which respects their unique status as aboriginal peoples.

(Emphasis added.)

There are cases where parents may not be acting in their child’s best interest and the state has a duty to intervene. However, that intervention must take place after an investigation by a qualified professional and a court hearing where the parents are represented. Interference with parental rights by teachers or school counsellors, without even notifying the parents, is wrong in principle

.

Parenting is a lifelong commitment. The teachers who were so quick to affirm you and promise to be your “rainbow family” when you are ten are not going to be around when you are twenty five and can’t get health insurance to cover the hormone you now need for the rest of your life.

Is it Legal?

The more difficult question is whether these policies are legal. While the practice in schools may be contrary to the spirit and underlying principles of the law, it is often difficult to invoke these general principles in support of a specific legal remedy.

It is not possible to give a general answer because, in Canada, education is a provincial matter and the laws in each province are slightly different. There will be four or five acts in each province which may be relevant including the education act, the child welfare act, the privacy act and the human rights code.

Constitutional Challenges

In the United States, there are multiple court cases in progress where parents have challenged school policies allowing for social transition without notice to parents as a violation of the 14th Amendment of the U. S. Constitution. In the case of Troxel v. Granville the U. S. Supreme Court held that the right of parents to raise their children is part of the liberty protected by the 14th amendment and that the government may not interfere with it except in accordance with due process of law. The litigation in the United States has just started and there are no final decisions yet. However, the Wisconsin Supreme Court rejected a request by a group of parents for a pre-trial injunction against a school division's non-disclosure policy.

In Canada, the language of Section 7 of the Canadian Charter of Rights and Freedoms is modelled after the due process clause of the American 14th amendment, but there are subtle differences and Canadian courts do not necessarily follow American jurisprudence. However, there are good arguments that Section 7 should apply. The U.N. Convention on the Rights of the Child explicitly recognizes the right of parents to be the primary decision makers for their children and the Canadian courts will look to international obligations for assistance in determining the scope of Charter rights.

This has been litigated in Canada in the case of PT v Alberta. This was a challenge by parents and church groups to certain provisions of the Alberta School Act. Section 16.1 required schools to create a gay straight alliance club if requested by the students at a school and Section 50.1 exempted these clubs from the requirement that schools notify parents of any instructional activities that dealt primarily with religion or human sexuality and to allow parents to remove their children from these activities.

The parents’ groups objected that the provisions infringed freedom of religion under Section 2 of the Charter and the right to liberty and security of person under Section 7 by restricting their ability to instruct and protect their children. They introduced evidence of some of the harmful materials used at gay straight alliance meetings argued that these meetings were harming children by encouraging them to identify as transgender. The Court of Queen’s Bench rejected their request for a pretrial injunction and this decision was upheld by the Court of Appeal.

The general tone of the judgment was not sympathetic to the plaintiffs and supporters of the law saw the decision as a victory. However, it was only a decision on a pre-trial injunction and not a final decision of the merits of the claim. It does not appear that the case proceeded further. In 2019 the United Conservative Party government amended the law to remove the provision which restricted schools from notifying parents of a child’s participation in a gay straight alliance.

The bill remains controversial. The next Alberta election is due in May, 2023 and if the New Democratic Party wins, it will likely reintroduce the former law and the issue may be back in court. However, things are changing. Concern about the teaching of gender and sexuality in schools now extends well beyond conservative religious circles and the evidence of the medical harm caused by medical gender transition is continuing to accumulate.

Negligence Law

There is a possibility, though slim, that a school could be sued for negligence resulting from supporting a pupil’s social transition without proper safeguards. Schools owe a duty of care to protect pupils which is equal to that of a careful and prudent parent in similar circumstances. These duties include an obligation to obtain medical assistance when required and not to undertake serious medical interventions without professional advice.

Social transition is a medical intervention and guidelines such as the ones published by the Endocrine Society recommend that it should only be made with the assistance of a mental health professional. When a school socially transitions a child without involving the parents the school will almost certainly not have not been able to obtain input from mental health professionals beyond a short session with a school counselor.

Confusion over gender can mask or be associated with a range of mental health conditions including body dysmorphia disorder, depression and autism spectrum conditions. By keeping the child’s gender distress from the parents, the school may be keeping the child from obtaining all of the mental health support the child needs.

While social transition seems benign, and may give temporary relief, it leads to medical transition in the majority of cases. If a child joins the growing cohort of detransitioners who have found out too late the transition harmed their bodies without resolving their mental distress, there is at least an arguable case that the school contributed to this harm by failing to provide the child with proper mental health support.

While a case of this sort is possible, it would raise many difficulties. The largest is that proper mental health support of gender dysphoria is hard to find. If the school did involve a mental health professional, there is a good chance that the professional would also fail to conduct a mental health evaluation and recommend social transition in any event.

Information and Privacy Law

Each province has legislation governing the collection and use of private information. Depending on the province, there may be separate legislation for provincial government agencies, municipal governments, health care institutions and the private sector. The details of the legislation are important here so to give a definite answer you need to examine them on a province by province basis. However the legislation all follows the same general pattern, so looking at Ontario law will give an idea of the issues.

The Ontario Municipal Freedom of Information and Protection of Privacy Act governs record keeping by school divisions. The Act creates rules for the collection, use and disclosure of personal information. Individuals have a right of access to their own personal information and to correct inaccurate information. In the case of an individual under the age of sixteen, Section 54 provides that any rights conferred by the Act may be exercised by a person who has lawful custody of the individual.

The Education Act also gives pupils, and their parents where the pupil is a minor, the right to access the pupil’s Ontario Student Record. Complaints regarding the handling of personal information can be taken to the Information and Privacy Commissioner, which has published a guide on access to information.

Parents in Ontario do have the right to the information schools are holding about their children but this right has limited usefulness for a number of reasons. The obligation to disclose only arises after a request is made. The right to access under the Education Act applies only to the specific information required to be kept in the Ontario Student Record. Schools could keep information regarding a pupil’s name and gender identity in a classroom record that is not part of the formal student record or not write it down at all.

The obligation to disclose only applies to formal records kept by the institution. A teacher’s personal notes and course materials may not be covered.

Section 13 of the Municipal Freedom of and Protection of Privacy Act also allows public bodies to refuse to disclose information when they reasonably believe that disclosure would threaten the health or safety of an individual. Many teachers do believe that their pupils’ safety would be at risk if their gender identity was disclosed to their parents. Whether this belief is reasonable, is another matter.

Human Rights Law

Any questioning of a school's policies and practices on gender transition will likely be answered by a claim that it is necessary to comply with human rights law. In fact, there is very little actual law on this issue in Canada. While gender identity has now been added as a prohibited ground of discrimination in every provincial human rights code, there have been very few actual decisions which interpret these provisions. Schools are relying either on their own interpretation of the law or non-binding guidance published by human rights commissions.

Gender ideologues sometimes talk as if gender identity enjoyed some special status in human rights law, but in fact it is only one of many possible grounds of discrimination. All Canadian human rights codes include both sexual orientation and religion as prohibited grounds of discrimination. Sex is a prohibited ground in all codes except for Alberta which refers to gender. Several provinces also protect political or philosophical beliefs. Where these rights come into conflict it is necessary to reconcile them.

The larger difficulty is fitting a claim within the definition of discrimination, which normally refers only to denial to service. However, there is a doctrine of constructive discrimination which holds that practices which create a toxic environment for a particular class of people can amount to discrimination. It could be argued that school policies which aggressively promote beliefs about gender identity rooted in Queer theory create a toxic environment in schools which discriminates against anyone who does not share this belief system. This is the basis of a human rights complaint in Ontario brought by Pamela Buffone and her husband on behalf of their daughter against a school which was teaching that “girls and boys are not real.” The case has been argued and a decision is pending.

Getting Real Change

While there are legal options for challenging school policies, they are all costly and time consuming. Real and permanent change needs to happen at the political level. School boards in most provinces are elected and there are elections coming in October, 2022 in Ontario, Manitoba and British Columbia. Candidates are coming forward in a number of districts to challenge the promotion of gender ideology, critical race theory and other aspects of the “woke” political agenda.

However, school boards are constrained from both above and below. The provincial department of education has guidelines and regulations that each school board must follow. The Ministers of Education could solve most of the problems by simply adopting a policy requiring parents to be notified of any change of gender. They could also make the situation worse by imposing what are now local policies on non-disclosure province wide.

School boards also require the active cooperation of their professional staff to implement policies. Much of the push for gender affirmation comes from teachers. Gender ideology is well entrenched in teachers’ unions. Teachers who promote transgender identity in ways that contradicts or goes beyond school board policy can count on strong support from their unions. Teachers who are critical of the current orthodoxy put their jobs at risk. Teachers and administrators are both products of university faculties of education which have been promoting gender ideology for over a decade.

There is no single magic bullet, either legal or political, which will destroy the power of gender ideology over the school system. We got here as a result of years of work, supported by millions of dollars, from groups like the ARC Foundation. Change will require undoing the process and re-educating teachers, academics, school administrators and politicians on some basic truths The school resources created by Transgender Trend for the United Kingdom and the training resources provided by Genspect are a good starting point. Parents’ groups do not have the vast resources which were provided by a few transgender billionaires and the pharmaceutical industry. They do have the truth and a deep concern for the well being of their children.