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

By Marvin Zuker

Law360 Canada (August 23, 2023, 1:04 PM EDT) --
Marvin Zuker
Marvin Zuker
Policy 713 must recognize a minor’s right to make their own decision, without the need for parental involvement.

Bill 56, An Act to Amend the Medical Consent of Minors Act of New Brunswick, assented to June 11, 2021, in part 1 s. 3 of the Medical Consent of Minors Act, chapter M-6.1 of the Acts of New Brunswick, 1976, amended in subsection (1) (i) by repealing the portion preceding paragraph (a) and substituting the following:

3(1) The consent to medical treatment of a minor who has not attained 16 years of age is as effective as it would be if the minor had attained the age of majority if, in the opinion of a legally qualified medical practitioner, dentist, nurse practitioner, nurse, licensed practical nurse or midwife attending the minor ...

And yet, we have policy 713. 

In  A Proclamation on Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex Pride Month — 2023, the White House states:

Today, our Nation faces another inflection point. In 2023 alone, State and local legislatures have already introduced over 600 hateful laws targeting the LGBTQI+ community. Books about LGBTQI+ people are being banned from libraries. Transgender youth in over a dozen States have had their medically necessary health care banned. Homophobic and transphobic vitriol spewed online has spilled over into real life, as armed hate groups intimidate people at Pride marches and drag performances, and threaten doctors’ offices and children’s hospitals that offer care to the LGBTQI+ community. Our hearts are heavy with grief for the loved ones we have lost to anti-LGBTQI+ violence.

… Our collective freedoms are inextricably linked: when one group’s dignity and equality are threatened, we all suffer. … NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim June 2023 as Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex Pride Month. I call upon the people of the United States to recognize the achievements of the LGBTQI+ community, to celebrate the great diversity of the American people, and to wave their flags of pride high.

Freedom, justice and equality for all, NOT Policy 713.

Yes, in my opinion ALL school boards are justifying the withholding of information about a minor child’s psychosexual development, including their asserted gender identity, from the child’s parents, absent some evidence of actual and substantial risk to the child.

Is policy 713 simply an extension of some unconditional right of parents to control and direct the education and general upbringing of their own child? (Troxel v. Granville 530 U.S. 57.) 

While parents generally have the right to access the school records of their children, boards must be able to balance this right with the right of students who, regardless of age, have the right to pronoun use without the parental consent as well as arguably their own confidential counselling relationship with a board’s services.  

For public schools in the U.S., any policy related to transgender students’ participation in school sports must comply with the Equal Protection Clause of the Fourteenth Amendment. In Bostock v. Clayton Cty, the U.S. Supreme Court held that discrimination based on transgender status is sex discrimination.

A birth certificate is an essential government-issued document that each person uses to establish their identity throughout their lifetime. That is why the government routinely makes copies of a birth certificate available to the person named on the birth certificate, rather than merely reserving the document solely for the government’s use. Transgender people are no different than non-transgender people with respect to the need to access a birth certificate that reflects who they are and that they can actually use in their lives.

For transgender people who have struggled for years with the impact of external invalidation of their gender identity, the knowledge that one’s identification documents label them with the wrong gender and the name given to them at birth (if typical of their birth assigned sex) can cause serious psychological injury and undermine their medical treatment for gender dysphoria.

Transgender people often face significant harmful treatment when others learn that they are transgender.

A 2015 survey of over 27,000 transgender people across the country found that the transgender community is more likely to suffer abuse, harassment, discrimination and violence than the population at large.

According to the Report of the 2015 U.S. Transgender Survey

a. Around a quarter (24 per cent) of respondents had been physically attacked in a K-12 school because people perceived them as transgender.

b. In the year prior to completing the survey, 27 per cent of respondents who had a job reported being fired, denied a promotion or experiencing some other form of mistreatment in the workplace due to their gender identity or expression.

c. Nearly half (47 per cent) of respondents had been sexually assaulted during their lifetime.

d. Among respondents who had interacted with police, 58 per cent of those whom the police perceived as transgender experienced some form of mistreatment.   

e. Thirty-nine per cent of respondents experienced serious psychological distress in the month prior to completing the survey, compared with only five per cent of the U.S. population.

f. Forty per cent of respondents attempted suicide in their lifetime — nearly nine times the attempted suicide rate in the U.S. population (4.6 per cent). 

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

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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