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

By Marvin Zuker

Law360 Canada (August 24, 2023, 2:10 PM EDT) --
Marvin Zuker
Marvin Zuker
In the U.S., many states have introduced legislation that would regulate student pronoun usage in schools, according to a count by the National Conference of State Legislatures. Much of this legislation would prohibit school employees from using students’ preferred pronouns if they don’t align with their sex assigned at birth or their legal name, without first notifying or getting parental consent.

Legislation, for example, introduced in Kentucky would require parents to be notified if a “student significantly changes his or her gender expression” or “expresses an inconsistency” between their sex assigned at birth and their gender identity, as well as any changes in pronoun usage. Perfect to add to policy 713? Very sad.

In Missouri, schools would be required  to notify families within 24 hours if students “express discomfort or confusion” about their gender identities, as well as if they say they prefer pronouns different from their sex assigned at birth. In Texas, districts could lose state funding if an employee is found “assisting a student enrolled in the district with social transitioning,” which includes, but is not limited to, pronoun usage. Policy 713 fits in perfectly with these states.

The issue of gender and sexuality in schools is a deeply divisive. Presumably in New Brunswick it is all about parental rights as a driving factor. In New Hampshire, lawmakers say parents are solely responsible for teaching their children about matters of faith, morals and matters relating to a sexuality sentiment. Ontario? New Brunswick?

Requiring parental notification is not only wrong, it may put LGBTQ students in danger by leading to child abuse or other harm. Trans and non-binary students are already ostracized and bullied in schools. Policy 713 is clearly meant to stigmatize LGBTQ+ youth and family members and make teachers fearful of providing a welcoming and inclusive classroom.

A positive school climate and feelings of school connectedness could be a buffer against negative feelings and behaviours that are more likely to appear in LGBTQ students, according to the U.S. Centers for Disease Control and Prevention.  

Social transition is not a treatment of gender dysphoria. “Social transitioning,” including assertion of alternate names and pronouns, is not recognized as a medical/mental health treatment for children with gender dysphoria. Gender dysphoria is a diagnosis classified in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association.

The term “medical treatment” has a generally accepted meaning ... “covering all the steps taken to affect a cure of an injury or disease; including examination and diagnosis as well as application of remedies.” (Black’s Law Dictionary 1502 (6th ed. 1990). There are medical standards of care for the treatment of gender dysphoria that may include taking steps to live consistent with one’s gender identity, such as adopting a new name or pronoun. 

Policy 713 in New Brunswick does not build a positive school climate. Policy 713 diminishes what should be a trusting relationship between students, teachers and other educators, and with families and community.

Policy 713 does not provide emotional and physical “safety,” safety from violence, bullying, harassment, substance use and an environment with attention to physical and mental health inside and outside the physical building.

Professional educator standards as set out for example, in the Ontario College of Teachers Act and regulations, are intended to promote a school community that is inclusive, caring, supportive and promotes the academic success and well-being of every student, and trusting relationships in school are the most effective means of ensuring school safety.

The common, underlying theme of school climate lies in establishing the conditions and supports for students to learn, which itself is bound up with the student’s intentional connection with adults at 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 are likely to need support, particularly if they are transgender or gender nonconforming or nonbinary. Parents and family acceptance are enormously important to the ways that young people navigate these challenges, and school support is ultimately about equal educational opportunities and supporting a student in initiating conversations with family members.

All school staff should use the student’s preferred name and pronoun, which is a sign of respect to the student and affirms his or her gender identity.

Allowing parents to direct how a public school teaches their child is nothing less than a tectonic shift in the law. Discretion by school officials and the deference owed to many of their decisions should be first and foremost.

If all parents and ministries of education had a fundamental right to dictate individually what schools should teach their children, schools would be forced to cater a curriculum for each student whose parents had genuine moral disagreements with the school’s choice of subject matter.

Many parents may hope their children will come to them first with questions about gender and sexuality. Young people who are transgender face a real risk of rejection by those who are supposed to care for them. Trans people are much more likely to be abused by their immediate family based on their gender identity, and high risks of abuse. School may be one of the few places to be themselves. Trans youth thrive when they are affirmed in their gender identity, which includes being called by a name and pronouns that reflect who they are. As trans youth themselves report, living as their true selves transforms their lives for the better. 

The U.S. Supreme Court ruled in 1969 that students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. Policy 713 takes away their right. LGBTQ students have a right to be who they are and express themselves in public schools. Public schools should not “out” students to their families. Parents do not have the right to be told whenever their child uses a name or pronoun that is not typically associated with the child’s assigned sex at birth.  

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

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 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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