Parents, Children and the Charter

A review of the review of the New Brunswick Child and Youth Advocate on gender in schools

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The review of the New Brunswick Child and Youth Advocate of the changes to Policy 713 on gender identity in schools has been praised as a devasting rebuke to Premier Higgs new policy which requires schools to notify parents if their child’s name and pronouns are changed to reflect their gender identity. The Review claims that the changes violate the provincial human rights code, privacy legislation and the Charter of Rights and Freedoms  The Review is a template for legal challenges to the policies which are now underway in. Saskatchewan and New Brunswick.  While the Review provides a thorough and largely accurate review of  the law relating to parental rights, it makes two fundamental errors of fact which undermine its entire argument and conclusions.

Reliance on a Faulty Model of Affirmative Care

The first and most fundamental error in the Review is the belief that changing a child’s name and pronouns on request, is in the best interests of the child. This assumption is based on the affirming care model, which holds that children have a gender identity which is fixed and stable from an early age and that affirming this identity is an unquestionable benefit.

In fact, gender identity in children is highly fluid. Before the affirming care model took hold, many gays and lesbians reported going through a period of questioning their gender which resolved sometime during puberty. Gender identity cannot be separated from all of the other parts of a child’s developing identity. It can be influenced by a range of social and psychological factors before a stable sense of self is established. Social transitions risks freezing a sense of identity which would otherwise resolve naturally an putting a child on a path to medical transition. Affirming a child’s self-declared identity without understanding all of the child’s circumstances, wihich is not possible without parental inolvement.

The Interim Report  of the Cass Review of the child gender identity service in the U.K.states that social transition “is an active intervention because it may have significant effects on the child or young person in terms of their psychological functioning.” Allowing a change of name and pronouns on the assumption that a child is transgender may, according to Dr. David Bell, become a self-fulfilling prophecy.

There is, at the very least, a strong correlation between social transition and persistence in cross-gender identification. Dr. Riittakerttu Kaltiala, a leading expert on gender dysphoria in children, has said that when children are allowed to develop naturally, 4 out of 5 learn to accept their sexed bodies but when they are socially transitioned, virtually none do.

Transgender identification is strongly associated with mental health problems and neurodevelopmental conditions such as autism. Without parental, involvement, it may not be possible to get a proper assessment of a child. Affirmation of a child’s identity may provide a temporary lift, but this may simply be a placebo effect and the long-term result may simply be to delay a proper diagnosis and treatment of the underlying mental health issues.

Even groups and professionals which are generally supportive of gender affirming care urge caution in social transition. The Endocrine Society guidelines recommendation social transition of children and adolescents only after assessment by a qualified mental health professional. Dr Erica Anderson, a clinical psychologist and member of WPATH, has given expert evidence that social transition without parental consent “violates widely accepted mental health principles and practice.”

Parents themselves will have varying views on changing of names and pronouns. Stella O’Malley and Sasha Ayad discuss some of these in their forthcoming book When Kids Say They’re Trans. Some parents will agree to a change in name and pronouns as a way of minimizing conflict and keeping dialogue open, others may opt for a compromise like a nickname and they/them pronouns and still others will be concerned that changing name and pronouns is a first step towards medical transition.

The change of name and pronouns does not happen in isolation. A child who expresses a transgender identity has likely been active on social media or in a school gender-sexuality alliance with their parents’ knowledge.

The arguments against the gender affirming model have been reviewed in detail elsewhere. The it is based on low quality research. Countries which have conducted systematic reviews of gender affirming care have consistently moved away from it. It is now creating a growing cohort of detranstioners who are entering their twenties and thirties trying to cope with the aftermath of a medical treatments that permanently altered their bodies without relieving their mental distress.

Unfortunately, the gender affirming model has been accepted by the entire Canadian medical establishment so the conclusions of the Review are not surprising. However, if the gender affirming model is flawed, as more countries are now concluding, the basis for the Review’s legal arguments cannot stand.

Informed Consent and Capacity

Failure to understand the medical implications of gender transition leads to the second major error in the Review which is its unwarranted assumptions about the capacity of children to give informed consent. The Review correctly states that the extent of a child’s right to autonomous decision making depends on the child’s capacity to give informed consent, but then states (p. 9):

For the purposes of this analysis, I am going to speak to the law as it speaks to cases of children 12 and older who have the capacity to understand the nature and consequences of a desire to use a different name and/or pronouns in daily, informal interactions and has not told their parents.

Setting an arbitrary age of 12 or 16 at which a minor is competent to give informed consent disregards well established principles of child and adolescent development and the specific problems relating to consent in gender medicine. I discussed some of these issues in more detail in a previous article. Children’s brains being a process of development during puberty which is not complete until around age 25. The pre-frontal cortex which regulates risk assessment and long-term decision making is one of the last parts to develop.

A 12-year-old or even a 16-year-old does not have the ability truly to understand the long-term implications of gender transition. Adopting a new name and pronouns may make them happy in the moment but it also sets of a chain of consequences which they lack both the cognitive capacity and life experience to understand. Many of these children have barely started puberty. They have no frame of reference to appreciate risks like sterility, loss of the ability to orgasm and early onset osteoporosis which may all result if they continue towards medical transition. Of course, not all children who socially transition will proceed to medical transition, but gender affirming care tends to be cumulative, with each step increasing the likelihood of the next.

 The assessment of capacity to consent to gender transition is a complex matter which requires both a full understanding of the potential consequences and an individualized assessment of the child. It is not something that can simply be presumed at a fixed age or assessed by relatively unqualified school staff.

Charter and Human Rights Codes

A third problem with the Review, which is less fundamental than the preceding two, is the way in which it sometimes conflates the Canadian Charter of Rights and Freedoms and provincial human rights codes. While the language in the Charter and human rights codes on discrimination is similar, their scope and implications are different. The Charter applies only to legislative and judicial action by the federal and provincial legislatures (this includes school boards and municipalities which derive their powers from the legislature.). It can be used as a “shield” to strike down legislation but not as a “sword” to compel provision of reasonable accommodation. The provincial and federal human rights codes apply to private organizations and administrative actions by government agencies. They provide much more extensive rights and remedies than the Charter. While the Charter is enforced by the courts, remedies under the human rights codes must be obtained through a provincial human rights tribunal.

A critical difference between the Charter  and the human rights codes is that human rights codes are ordinary legislation while the Charter is part of the Canadian constitution. A decision of a provincial human rights tribunal is binding only in a single province and the legislature can override the decision by ordinary legislation. A decision under the Charter is binding throughout Canada and can be varied only by using the notwithstanding clause (which must be renewed every five years) or by the very cumbersome route of a constitutional amendment.

Because of its far-reaching implications, the Charter should be used with extreme caution to resolve contentious issues of social policy. Charter litigation is too blunt a tool to balance complex competing interests or to take into account the shifting nature of professional and scientific consensus. A declaration that some aspect of the gender affirming model is a Charter right risks locking Canada into policies based on questionable scientific evidence which the rest of the world is rapidly abandoning.

Parents’ Rights and Children’s Rights

The strongest part of the Review is the discussion of parents’ rights and children’s rights. The Review discusses the principles in the Charter of Rights, Canadian child welfare legislation and the United National Convention on the Rights of the Child and concludes that parental rights exist as a necessary component of the right of the family to minimal state interference. Parental rights are an aspect of the right of the children to the protection and guidance of a parent. This may include the right of parents to make decisions which the child is not happy with, at the time, but are nevertheless in the child’s best interests.

Parent’s rights are not unrestricted. Where parents are not acting in the best interests of a child their authority can be overridden and, in extreme cases, they may lose custody entirely.

The Review goes on to discuss examples of cases where parental rights are overridden in the best interests of the child. These include cases where the courts have allowed child protection authorities to take custody of a child for medical treatment over the parents’ religious objections. However, the Review fails to take into account the critical fact that the examples it cites are all cases where parental authority has been overridden by due process of law. In a court case there will have been notice to the parents and a hearing.

Canadian law also permits medical doctors to provide medical care to minors without parental consent, but the law has important safeguards. The doctor is required to make a diagnosis, determine that the proposed treatment is in the best interests of the patient and that the minor has the necessary capacity to give informed consent to treatment. This is different from a blanket policy which allows classroom teachers to interfere with parental authority in a substantial way simply on the child’s request with no notice to the parents.

Equality Rights

The argument on equality rights suffers from a number of problems. The first is that in defining transgender people as an oppressed group, it assumes that children and youth who question their gender are all members of that group. In fact, as we have seen, children’s gender identity is still in a developmental stage and not slotted into adult categories like transgender. The fundamental goal of anti-discrimination legislation used to be to ensure that people are treated with equal dignity as individuals without regard to their race, religion, sex and so on. The change in focus to protecting the interests of “oppressed groups” runs the risk of treating people simply as members of a group without regard to their individual circumstances.

The problems are compounded where the Review shifts from discussing transgender people to the initialism LGBTQ+. This is no a useful label for discussing the rights of children. Lesbian, gay, bisexual, transgender and queer are different categories of people with different and sometimes antagonistic needs. Many lesbians, gays and bisexuals go through a phase of cross-gender identification in childhood or early adolescence. They are being harmed by affirmative care practices which assume that they are transgender and put them on a pathway to medical intervention before their identities are fully developed. Queer is a catch-all category which is sometimes just a synonym for LGBT. It may also refer to sexual interest which should not be associated with anyone under the age of consent.

The Review bases its argument on the urgency of allowing children to change their name and pronouns largely on responses from a convenience sampled survey of LGBTQ+ youth which talks about the “life saving” importance of having your gender identity affirmed. Reliable evidence that social transition provides any substantial benefits to gender-questioning young people is scare. A study in Germany found that the strongest determinant of good psychological functioning in children with gender dysphoria was not social transition but family and peer support.

Further, what is being claimed for transgender identified youth is not equality before the law but special treatment which is not given to others. It is true that everyone can claim the right to be addressed by their chosen name as a matter of basic respect. However, no other group insists that teachers use one name when speaking to students in school and a completely different name when speaking to their parents. Pronouns are an exceptional claim by the transgender community. Requests for preferred pronouns are an attempt to police the speech of other people which requires them to endorse a system of belief they may not share. Requiring that people use one set of pronouns when speaking to parents and another for everyone else adds to this burden.

Reasonable Accommodation

Canadian human rights law does allow for differential treatment of protected groups under the doctrine of reasonable accommodation, which allows disadvantaged groups to claim special concessions so that they can access employment and services.

The Review incorrectly refers the right to reasonable accommodation as arising under Section 15 of the Charter and cites in support the Supreme Court of Canada decision in Moore v. British Columbia (Education), 2012 SCC 61 (CanLII), [2012] 3 SCR 360.  In fact, this is a decision under Section 8 of the B.C. Human Rights Code and does not even refer to the Charter.

Reasonable accommodation claims under human rights law typically involve requests for special treatment to take into account religious obligations (e.g., time of on holidays) or disability or medical related needs. Requests for accommodation must be determined on an individual basis. For example, a learning plan for a student with ADHD will be created by a specially trained resource teacher in consultation with a mental health professional. It is not something that a child is simply entitled to demand.

The Review argues that the amendments to Policy 713 puts a “a blanket ban on using a child’s name and pronouns informally even if the qualified psychologists and social workers determine that the accommodation is necessary.” (p.48) What the amendments actually do is modify an existing policy which allows changes of name and pronouns solely on a child’s request, without any assessment or notice to the parents. The Review does not explain how a psychologist or social worker would determine whether a change of name and pronouns would be beneficial, without conducting a full review of the child’s mental health history and family circumstances, which would necessarily involve the parents.

Privacy Rights

The Review also claims that the requirement to disclose changes of name and pronouns to parents violates a child’s statutory right to privacy and a teacher’s more general ethical and professional obligation to respect student confidentiality. This misunderstands the issues at stake.

It is misleading to equate the requirement for parental involvement with “outing” of children. The term “outing” has been applied to the practice of exposing gay and lesbian adults who would prefer to keep their sexual orientation private. This is completely different from publicly affirming a child’s cross gender identity. Sexual orientation invovles things that adults do in private. Gender identity, on the other hand is concerned with how someone presents to the world.

Nothing in the proposed policy requires teachers to disclose something a child told them in confidence. It does not even require teachers to report everything a child may say or do in class. What it prohibits is a teacher actively deceiving parents by using one name and pronouns when referring to a child in school and another when communicating with the parents. This is not privacy but an open secret.

Children’s rights to privacy are directly linked to their capacity for informed consent. If a child does not have the capacity to consent to medical treatment, the child does not have the right to demand privacy in respect of the treatment. Health care providers must be free to provide information to the child’s parents or guardians in order to obtain proper informed consent.

School staff will not have the expertise to assess a child’s capacity to consent to gender transition and school policy of non-disclosure can create a dangerous disconnect between the school, the home and the child’s health care providers. There may be circumstances where a child is receiving mental health support without the knowledge of school staff. The child’s parents and health care providers may agree that the child does not have the capacity to give informed consent and that affirmation is not in the child’s best interests. Meanwhile, the school, with no knowledge of the background, may be pursuing a policy which undermines the work that the health care professionals are doing.

This risk is not just theoretical. In a debate on Policy 713, New Brunswick Minister of Public Safety, Kris Austin, described an incident which was reported to him by two constituents. Their daughter had serious mental health issues and they had been working with mental health professionals to develop a personal learning plan for their daughter who had been diagnosed with ADHD and other mental health issues. When the daughter entered middle school, the teachers failed to implement the learning plan and instead allowed the daughter to attempt to cope by going by a different name in school. The child’s mental health deteriorated, but the parents were not told what was going on in school until another parent told them.

The Government Rationale

Unfortunately, the governments attempt to justify its policy changes was not overly strong. The government does not seem to have shown much understanding of the medical and mental health implications of social transition or any willingness to question the assumptions of the affirming model of care. While Our Duty Canada submitted a brief which discusses the issues of medical transition, the government position appears to have based its case on more general arguments on parental rights and non-interference with the family unit.

Not surprisingly, the Review found that it is well established law that parental rights are always subordinate to the best interests of the child. Given the unchallenged assumptions about the benefits of recognition of a child’s preferred name and pronouns it was easy to argue that the government position represents overreach.

The analysis in the Review is based on the assumption that social transition on request is always in the best interests of the child. This assumption is wrong. There are some cases where social transition will be helpful and others where it will make it more difficult to address a child’s mental health struggles and push the child towards medical transition. Rather than there being a conflict between parental involvement and the best interests of the child, the best interests of the child are served by parental involvement.

However, in order to make this argument, it is necessary to challenge the validity of the entire affirmative model of care and this is something that Canadian governments are not yet ready to to.

The concern over not informing parents about name and pronoun changes has grabbed public attention and elicited a political response, but it is only a small part of the bigger picture. The trouble in schools often starts with teachers promoting pseudo-scientific ideas about sex as a spectrum and exposing young people to the idea of transgender identity. The risks of medical transition are downplayed or entirely ignored. Teachers who challenge the prevailing orthodoxy risk their careers. These problems extend to the health care system where professionals who question the gender affirming care model have been frightened into silence by the law on conversion therapy. The problem is not simply that a small number of parents are not informed when their child socially transitions at school. There are a much larger number of parents who are being misinformed that the affirmative care model is safe and effective.

The Recommendations

The Review recommends a revised policy which contains three arbitrary age brackets. Students 16 and over have the right to change their name and/or pronouns on the school records without parental consent. All students have the right to choose their gender identity and name and pronouns for informal purposes provided that they have capacity to consent. For children below grade 6, the Principal is directed to assess the child's capacity to make the request with such "specialized guidance" as the principal may think appropriate. The problem is that children in grade 6 and above are presumed to have capacity to consent. Principals can still conduct an assessment if they have concerns about capacity but it's highly unlikely anyone would do so. It is also not clear where schools will get the money for the professional assistance needed to conduct a proper assessment of capacity.

What this means is that 12 to15 year olds, who are in the most volatile stage of development, are allowed to make a life changing decision without any parental involvement. This is the age range when many detransitioners report starting their transition. Many of these children will have serious mental health conditions which cannot be properly treated without open communication between the home and the school. Children struggling with mental health issues are likely to be the ones who don't want to talk to their parents.

The report is entitled "On Balance, Choose Kindness" but there is nothing kind about a policy that cuts children off from parental support at a critical time in their lives.