New Brunswick: Shame on you and your policy 713: Epilogue | Marvin Zuker

By Marvin Zuker

Law360 Canada (September 5, 2023, 1:00 PM EDT) --
Marvin Zuker
Marvin Zuker
When I completed my writing the first week of August 2023 about New Brunswick and policy 713, I thought maybe, maybe, I’m done and let’s wait and see what happens in that province. Well, I was clearly wrong. The minister of education in Saskatchewan has clearly taken a page from the education minister in New Brunswick. In terms of public school education, these policies are arguably patently unlawful. It is about the best interests of the child and the welfare of the child as “even” the Saskatchewan Court of Appeal recently alluded to. See Peterson v. Peterson 2019 SKCA 76.

The Saskatchewan minister of education announced in part that as of Aug. 22, 2023:

“Schools must seek parent/guardian permission when changing the preferred name and pronouns used by students under the age of 16 in the school.”

It seems like these two ministers of education have lined up behind Pope Francis and the Catholic Church? The Catechism of the Catholic Church refers to accepting one’s own sexual identity and embracing “the conjugal love of a man and woman within the bonds of marriage” and further that the “teachings of the church are not mere antiquated notions.” “The young need to be helped to accept their own body as it was created,” so that “we can joyfully accept the specific gifts of another man or woman, the work of God the creator.”

New guidance and policies on ministering to people experiencing “gender dysphoria” is nothing new in many of the dioceses in the U.S. In the Archdiocese of Denver, “Guidance for Issues Concerning the Human Person and Sexual Identity” has been in place since 2019.

Earlier this month, the Diocese of Worcester (Massachusetts) provided a policy that “if a student’s expression of gender, sexual identity, or sexuality should cause confusion or disruption at school, or if it should mislead others, cause scandal, or have the potential for causing scandal, then the matter will first be discussed with the student AND his/her parents.” 

“Speaking the truth in love” Pastoral Guidelines for Educators Concerning Students Experiencing Gender Incongruence (my emphasis), is a document from the Office of the Liaison for Catholic Education, Archdiocese of Toronto – 2019. I wonder, another example of the failure to protect innocent children from a great risk of harm?

On Aug. 15, 2023, the New Brunswick child and youth advocate, Kelly Lamrock, through his office, released a report finding that changes in policy 713, also called the Sexual Orientation and Gender Identity policy, violated children’s Charter rights by forcing them to use a name they did not identify with and that the Ministry of Education did not seriously consider how this would impact on the children. He called the review “shoddy and inadvertently discriminatory.” Mr. Lamrock is more than generous. Policy 713 is a disgrace.

The Brussels 11 Regulation on matrimonial matters and matters of parental responsibility became effective Aug. 1, 2022.

Best interests of child and child's participation in parental responsibility proceedings  

The most significant changes in the Brussels 11 Regulation relate to the fundamental need to protect the fundamental rights of children, as enshrined in the UN Convention on the Rights of the Child (UNCRC), the European Convention on Human Rights (ECHR) and the Charter of Fundamental Rights of the European Union. Article 24 of the Charter creates a link between children’s rights, as protected by universal and regional systems, and the EU legal order.

Where is the respect and deference children deserve in determining their “best interests?” It is not the children that lack the emotional immaturity, it is clearly the government which has clearly not struck the appropriate balance. The right of autonomy belongs to the child, respectfully, not a parent’s veto as to their child’s identity until they reach 16.

Interestingly and perhaps not surprisingly, far from the conservatism elsewhere, California has two emancipation statutes which provide that minors 12 and older can consent to outpatient mental health treatment separately, Health and Safety Code (HSC) #124260 and Family Code (FC) #6924. California State Board of Behavioral Sciences Bill Number AB 665, introduced Feb. 13, 2023, provides in part:
Health and Safety Code Section 124260

2) Permits a minor 12 or older to consent to mental health treatment if, in the opinion of the attending professional person, the minor is mature enough to participate in the mental health treatment intelligently. (HSC #124260(b)(1).

Re AB 665, The People of the State of California do enact as follows:

Section 1.

 “(e) Despite an overall decrease in the suicide rate in California in 2020, youth, particularly Black and Latinx youth, and girls all showed disproportionate increases in suicide.  A shocking 78 percent of LGBTQ+ youth who were surveyed shared they had considered suicide, with the vast majority of those who had considered suicide sharing they had done so in the last year, and nearly one-third had made an attempt in the past year”.

Where is the voice of the child or do we really care?

Are not all students worthy of affirmation in being their unapologetic and authentic selves?

Sadly, be it policy 713, policy changes in Saskatchewan, Catholic dioceses anywhere and everywhere, the Victorian maxim, “children should be seen and not heard,” is as strong as ever. Very, very sad.

Policy 713 denies the humanity of our young people as autonomous beings with full equality. The hope for the future will come from these young people, their passion and their idealism.

We must not “get lost in a sea of despair. It is a struggle of a lifetime. We must never, ever, be afraid to make some noise and get in good trouble, necessary trouble.”  — American politician and civil rights activist John Lewis.

As Dr. Martin Luther King Jr. once said, “The arc of the moral universe is long, but it bends toward justice.”

The fight for equality for all LGBTQ+ students is far from over.

Policy 713 is dehumanizing. Human dignity is NOT, I repeat, NOT optional.

Our governments must NOT be complicit in both allowing and perpetuating homophobia and transphobia.

It is a fight for the lives, rights and dignity of all.

On Aug. 28, 2023, the Ontario Minister of Education Steven Lecce seemed to join New Brunswick and Saskatchewan when he commented at a news conference that “parents must be fully involved” if their child chooses to use a different pronoun at school. Teachers and school boards take home environments into account “where there are exceptional circumstances” or situations of potential harm to the child.” Educators are well versed on exactly what to do and who to turn to if they believe that child may be harmed for whatever reason, or whatever circumstance.” … “But as I say, as an overarching value system, I really do believe that parents need to be fully aware, fully engaged.”

Whose value system, Mr. Minister?

For sure not the children of Ontario.

Obviously the UN Convention on the Rights of the Child is not part of your value system?

Virtually the very first thing, maybe the second, your government did was repeal the Provincial Advocate for Children and Youth Act, 2007. That was on May 1, 2019.

Not in any particular order came your government’s “repeal” of sex education as it had been in Ontario, typically turning the clock back.

Not in any particular order came the revisions to your Ontario Student Record (2020) referencing legislation that had been repealed two years before, i.e. the Child and Family Services Act, repealed effective April 30, 2018.

Not in any particular order Provincial Policy Memorandum 9, the Duty to Report pursuant to the Child, Youth and Family Services Act, makes no mention, no notice, to all schools in Ontario as it should.

Not in any particular order your government decided that to become a teacher required the passing of a math proficiency test, found to be racist at the very least.

Perhaps you might consider ending the concept of streaming in all grades in the Ontario public system, arguably the most racist policy of them all?

Remember, democracies unravel when the rule of law unravels.

The public schools in Ontario and throughout Canada were never intended to be Charter-free zones.

The children of today become tomorrow’s adults. They should be respected.

This is the final 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 three: New Brunswick: Shame on you and your policy 713. Part four: New Brunswick: Shame on you and your policy 713. Part five: New Brunswick: Shame on you and your policy 713. Part six: New Brunswick: Shame on you and your policy 713. Part seven: New Brunswick: Shame on you and your policy 713.

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.

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