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| Marvin Zuker |
In Re W (a minor) (medical treatment), Lord Donaldson MR held that the lack of Gillick competence, while reducing the weight that ought to be given to a young person’s views and wishes, did not mean that those views and wishes should be disregarded (Gillick v. West Norfolk & Wisbech Area Health Authority).
Do parental rights equate with safe and affirming schools where all children can learn, can grow, and thrive?
Do parental rights equate with corporal punishment in your child’s school?
Do parental rights conflict with the “equal and inalienable rights of children”?
Do parental rights, where corporal punishment is common and retributive with exclusionary discipline techniques, equate with restorative practices?
Do parental rights equate with believing that trans children are somehow different, and yes, somehow defective?
It is almost 50 years ago that the American Psychiatric Association stopped referring to homosexuality as a disorder, and almost 30 years ago our Supreme Court found sexual orientation to be analogous and protected ground under s. 15(1) of the Canadian Charter of Rights and Freedoms (Egan v. Canada [1995] 2 S.C.R. 513).
In 2021, the Quebec Superior Court held that “[g]ender identity is analogous to the grounds listed ats. 15(1)of the Canadian Charter" because “[g]ender identity is an immutable personal characteristic.” (Centre for Gender Advocacy v. Attorney General of Quebec, [2021] Q.J. No. 349).
Speech motivated to defend vulnerable or marginalized group engage s.2(b) and s.15(1) of the Canadian Charter. Are those in New Brunswick and Saskatchewan creating a safer, more welcoming world where LGBTQ young people can not only survive but thrive as who they are? I am not sure. See UR Pride Centre for Sexuality and Gender Diversity v. Saskatchewan (Education), 2023 SKKB 204.
I can acknowledge a bias against those parents who reject their children. I can even deconstruct my own preconceptions. Our politicians may be another story.
Is a life without the ability to choose a human life? Parents should not take away that choice.
For some children, school is the only safe place to express themselves. A reality is that the way we think may not be everyone's truth. Some children simply cannot be open with their parent about their sexual orientation or gender identity. Research shows that a supportive environment with one’s peers and role models that reflect students' own identities is a must for positive development.
Transgender youth are looking, first and foremost, for adults to respect their chosen names and pronouns. It is about building trust. When people use your pronoun and correct name with no questions asked, you know they see you the way you want to be seen.
Parents’ rights, parents’ rights, parents’ rights
What timing and what does it say? The Universal Declaration of Human Rights celebrated its 75th anniversary on Dec. 10, 2023. Mandatory reading for all of our politicians should be Children's Vision for Human Rights, December 2023. At page 11 under the Heading Legal Recognition of a Child, it could not be better spelled out: “Children in some contexts explained how they are not acknowledged as independent rights holders and civic actors. This includes not being recognised by their families, wider communities, and national decision-makers because they are children. Disregard for children’s rights is embedded further when children are not recognised in government laws and policies. Children believe that a lack of child/human rights awareness prevents them from being recognized, and their rights being fully respected and guaranteed.”
To quote James A. Baldwin, “The purpose of education ...is to create in a person the ability to look at the world for himself, to make his own decisions…. It is very nearly impossible...to become an educated person in a country so distrustful of the independent mind.
“Children have never been very good at listening to their elders, but they have never failed to imitate them.” Nobody Knows My Name (1961) Dial Press.
It was 100 years ago, in 1924, that the Geneva Declaration of the Rights of the Child was adopted with these powerful words: Mankind owes to the child the best it has to give.”
Then we had the Declaration of the Rights of the Child in 1959 and on Nov. 20, 1989, the General Assembly of the United Nations unanimously adopted the International Convention on the Rights of the Child.
The second article of the Convention of 1989 ensures the right not to be discriminated against, in any way such as for one's sexual orientation or gender preference.
As Aleksandr Solzhenitsyn put it, the line between good and evil passes through every human heart. In other words, respect for personhood and the dignity of others.
This is the third installment of a series: Part one: Poilievre endorses parental rights. Part two: Poilievre endorses parental rights, 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.
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