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

By Marvin Zuker

Law360 Canada (August 21, 2023, 12:03 PM EDT) --
Marvin Zuker
Marvin Zuker
As much as parents have a right to be involved in their child’s education, that is different from the requirements to disclose to parents matters about which the student is not yet ready to discuss at home, thereby requiring educators to trench on the learning environment.

More than a century ago, an educational leader first wrote about the benefits of a “sunny [school] climate” for student learning where teachers must model virtue and learning and also express “a sincere desire to get the pupil’s viewpoint, to appreciate his problems, to get into his life, and to help him to help himself.” (Arthur Cecil Perry, The Management of a City School 261 (Macmillan, 1908); Jonathan Cohen, et al., School climate: Research, Policy, 17 Practice, and Teacher Education, 111 Teachers College Record 180, pp. 181-83 (2009) (explaining that “[e]ducators have recognized the importance of school climate for 100 years”)

The feeling of being respected, valued and emotionally supported by their teachers is a powerful protective factor for students’ mental health and well-being and relates to students’ orientation to behave in prosocial and responsible ways and to their actual behaviour, in and out of school. Identity exploration is a fact of life for young people in their school years. When students are assessing their gender or sexuality, and wherever they may end up in that exploration, they will need support, particularly if they are transgender or gender-nonconforming or nonbinary.

“Gender affirmation is a key determinant of health and well-being for transgender people.” (National Academy of Science, Engineering, & Medicine, (2020) Understanding the Well-Being of LGBTQI+ Populations, at 2-7 (2020)). “[t]ransgender youth who were able to use their chosen name in multiple contexts reported fewer depressive symptoms and less suicidal ideation and behaviour.” (Stephen T. Russell, et al., (2018) Chosen Name Use is Linked to Reduced Depressive Symptoms, Suicidal Ideation and Behavior Among Transgender Youth, J. Adolescent Health, 63, pp. 503, 504.)

We must meet students wherever they are, to respect their wishes about how they are identified, and, while encouraging and supporting students to share important parts of themselves with their parents and guardians when those adults do not already know, to allow students to control how and when to disclose personal information.

Schools must retain the authority to manage school-student relationships and honour the judgments of educators and local authorities as to how to create a positive climate and learning environment, not the New Brunswick government.

In Hansman v. Neufeld [2023] S.C.J. No. 14, the Supreme Court notes: “The transgender community is undeniably a marginalized group in Canadian society. The history of transgender individuals in Canada has been marked by discrimination and disadvantage.” We must defend and protect the rights of everyone in our society, especially the most disadvantaged people with the greatest need.

The purpose of education, finally, is to create in a person the ability to look at the world for himself, to make his own decisions, to say to himself this is black or this is white, to decide for himself whether there is a God in heaven or not. To ask questions of the universe, and then learn to live with those questions, is the way he achieves his own identity. But no society is really anxious to have that kind of person around. What societies really, ideally, want is a citizenry which will simply obey the rules of society. If a society succeeds in this, that society is about to perish. The obligation of anyone who thinks of himself as responsible is to examine society and try to change it and to fight it — at no matter what risk. This is the only hope society has. This is the only way societies change.

The landmark decision of Gillick v. West Norfolk and Wisbech Area Health Authority [1986] AC 112 recognizes that although minors maybe presumed to be incompetent for the purpose of consenting to their own medical treatment or decisions about their health care, they can lawfully make such decisions if they are sufficiently mature and have the capacity to fully understand the nature and consequences of their decision. This principle is well recognized in law (A.C. v. Manitoba (Director of Child and Family Services) [2009] 2 S.C.R. 181). A minor deemed competent by their treating medical practitioner can lawfully consent to medical treatment. Surely the ultimate decision should focus on the “best interest” factor, not what a parent may unilaterally determine what is right for their child (A.M. v. C.H. [2019] O.J. No. 4970.)

Parental consent in addition to the consent of a competent minor arguably, and/or regards a consent provided by a Gillick competent minor as ineffective for the commencement of gender-affirming treatment in some circumstances, unless confirmed by a court. Questions arise as to why the consent of a Gillick competent minor is not effective in terms of negating liability for trespass to the person/assault on the part of the health professional in cases where the parents do not also consent and/or the minor’s competency is disputed by a parent. There is a need to judicially reconsider how Gillick is applied in the specific context of decisions about gender-affirming hormone treatment, but I also note that judicial clarification of the concept is vitally important because the current interpretation has potential implications beyond cases relevant to gender-affirming hormone treatment.

In Gillick, Lord Leslie Scarman reasoned by reference to the “right” of a child with sufficient understanding and intelligence to make his or her own decisions. The House of Lords dismissed the idea that the parental right to consent exists as a basis to exert control over the child. Such rights exist for the benefit of the child. As Lord Scarman acknowledged, parental rights do continue to exist and such rights are not extinguished before the age of majority.

Parental rights are derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child. Parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision. Policy 713 and Gillick cannot co-exist.

Lord Andrew Fraser in Gillick states that parental control diminishes in line with the independence of the minor, the degree of parental control actually exercised over a particular child does in practice vary considerably according to his understanding and intelligence, and it would be unrealistic for the courts not to recognize these facts.

This is the fourth 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. Part three: New Brunswick: Shame on you and your policy 713, part three.

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.


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