New Brunswick: Shame on you and your policy 713, part three | Marvin Zuker

By Marvin Zuker

Law360 Canada (August 15, 2023, 8:13 AM EDT) --
Marvin Zuker
Marvin Zuker
Schools and educators that build trust and support students’ identities set these students up for higher academic achievement, improved mental health outcomes and bigger and better plans for the future.

In Brown v. Board of Education, for instance, the United States Supreme Court observed that public schools are:

“a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment,” such that “it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.”

Indeed, the Brown court noted, the public school system is “the very foundation of good citizenship” and of key “importance to our democratic society.” Since Brown, the U.S. Supreme Court has repeatedly “express[ed] an abiding respect for the vital role of education in a free society” and recognized “the grave significance of education both to the individual and to our society” (San Antonio Indep. Sch. Dist. v. Rodriguez).

In Bethel School District No. 403 v. Fraser, the U.S. Supreme Court observed that public schools “prepare pupils for citizenship in the Republic” by “inculcat[ing] the habits and manners of civility as values in themselves conducive to happiness” and also recognized that such values are “indispensable to the practice of self-government in the community and the nation.”

The Brown court observed that “education is perhaps the most important function of state and local governments.”

Policy 713 also called the “Sexual Orientation and Gender Identity Policy” would impact on open communication and damage the trust between students and their teachers, coaches and guidance counsellors. Students who trust their teachers are more engaged in learning, have improved academic achievement, are less likely to avoid school, are more self-directed and have greater confidence in their own ability to process information even after leaving school (Mahanoy Area Sch. Dist. v. B.L.).

These kinds of benefits lie at the very heart of the civic purpose of public education. These benefits would be undermined by a rule requiring school officials to provide parents with information about a student’s gender identity against the student’s will — particularly where the student’s request is based on fears of negative reactions, or even for their own safety. A student not wanting information about their gender identity shared with their family would not share that information with their teachers either, creating distance that otherwise might not exist and preventing the student from reaping the benefits that can result from close relationships with school staff.

Any kind of forced disclosure would have obvious negative repercussions for children who are not yet ready to have this discussion with their parents or who perceive their parents as unsupportive of their identity.

Where is the discretion in education?

Transgender youth often experience discrimination, harassment and stigma. Policies and practices that support all facets of students’ identities and facilitate trusting student-teacher relationships are beneficial for all students, including and especially transgender and gender-nonconforming youth.

We have a responsibility to provide public education and to protect students from harm.  

Without physical and psychological safety, students are biologically unable to learn effectively. Trust in an educational space depends on a student’s willingness to be vulnerable, which requires confidence that the other party is benevolent, honest, open, reliable and competent.

According to the 2022 Trevor Project mental health survey, 71 per cent of transgender and nonbinary youth respondents reported being discriminated against because of their gender identity. A 2017 study suggested that as many as 75 per cent of transgender students surveyed felt unsafe at school as a result of their gender identity or gender expression. A lack of school belonging, familial emotional neglect, and internalized self-stigma contributed to suicidal thoughts among transgender youth.

Gender identity refers to a person's deeply felt internal sense of belonging to a particular gender. It is a core part of who you are.

Most people are “cisgender” and have a gender identity that aligns with their sex assigned at birth — the sex placed on their birth certificate at birth based on their external genitalia. Transgender people have a gender identity that does not align with their birth-assigned sex. “Gender incongruence” is a condition where a person's gender identity does not align with their birth-assigned sex. There is no evidence that gender incongruence is the result of a dysfunctional family life, and many transgender people come from healthy, supportive families.

Gender identity is not something that an individual can control or voluntarily change. Efforts to change a person's gender identity to become congruent with their birth-assigned sex have been attempted in the past without success and with harmful effects.

This is the third instalment of an eight-part series. Part one: New Brunswick: Shame on you and your policy 713. Part two: New Brunswick: Shame on you and your policy 713, part two

Marvin Zuker was a judge of the Ontario Court of Justice, where he presided over the small claims, family and criminal courts from 1978 until his retirement in 2016. He is a professor at Ontario Institute for Studies in Education/University of Toronto, where he has been teaching education law for 42 years. Zuker is the author and co-author of many books and publications, including The Law is Not for Women and The Law is (Not) for Kids.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author's firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.


Interested in writing for us? To learn more about how you can add your voice to Law360 Canada contact Analysis Editor Peter Carter at Peter.Carter@lexisnexis.ca or call 647-776-6740.