Law unclear on question of parental rights under Policy 713, says law professor

New Brunswick parents do have rights with regard to their children's education, a law professor says.

But whether parents have a legal right to be told their children are using different names or pronouns at school isn't clear, says Wayne MacKay, professor emeritus at the Schulich School of Law.

"The whole area is a relatively newer one, of gender identity, and there isn't much in the way of any actual case law or guidance,"  MacKay told Information Morning Fredericton. 

"There's certainly no Supreme Court of Canada cases, and very few, if any, cases at all in Canada, or even in other places such as the United States."

The debate over a parent's right to know arose with the New Brunswick government's plan to review Policy 713, an education policy that grants certain protections to students who identify as LGBTQ. 

Education Minister Bill Hogan has said the review is being done in response to hundreds of complaints and questions from parents, although the actual number of complaints received remains unknown.

After several demonstrations against such a review — by students, parents and teachers — Progressive Conservative Premier Blaine Higgs promised not to repeal the policy in its entirety, but he has defended the need to reconsider certain sections.

Of particular concern to Higgs and some critics is that Policy 713, which was implemented in 2020, says a principal needs a student's consent to tell parents the student is informally using a different name or pronoun.

Supporters of Policy 713 said changing the consent provisions might endanger students who come from less supportive families.

MacKay said it's too early to say whether supporters of the policy or its critics are legally correct.

"I guess the real answer to that is it's not fully known at this point," he said. 

Each side has a point

MacKay said he thinks New Brunswick is lucky to have a document such as Policy 713 to focus on this issue, but it does not necessarily provide clarity.

He pointed out that the Education Act in New Brunswick gives the parent the "right to reasonable consultation" generally,  which could include such a situation as a student changing their pronouns, but might not.

"Parents are seen as having some rights with regard to their children on things like religion and those kinds of things," said MacKay. "So in general, there are some rights. This specific one is not so clear."

MacKay said the use of a gender pronoun or gender identity that would be "less traditional" may expose the student to bullying or negative consequences that a parent may want to know about.

On the other hand, some families would not be supportive of a child's preferences, so giving the information to the parent could expose the child to harm.

From a legal perspective, the age of the student could also be a factor, he said.

MacKay thinks the argument for a student's rights in this matter is stronger for those 14 or older, with the potential for a sliding scale.

"It may not still mandate parental consent because the overall rule is the best interest of the child," said MacKay. "So you don't want to expose the child to risk by contacting the parents on this but on the other hand, I think the issues are a bit much more difficult at the young age of the scale."

When asked what other jurisdictions have done on the issue, MacKay said it varies, even within Canada.

"Many do not have any direct policies on it," he said. "Some do like New Brunswick, but some don't. And most of them are dealing with it, but not necessarily in a consistent way."

What neighbouring provinces do

In Prince Edward Island, a document was issued by the Department of Education in 2021 that provides guidelines for respecting and accommodating gender identity and expression in school.

It encourages students to be open with their parent or guardian, but only if safe to do so.

"School staff welcome parental involvement and support with consent from the student and when confident the safety and well-being of the student is not at risk." 

Nova Scotia issued a set of guidelines in 2014 about supporting transgender and gender non-conforming students. The guideline about disclosure to a parent is age-specific.

'When a student requests that their preferred name, gender identity, and/or gender expression be used parental/guardian consent will be requested from grades primary to 6. From grades 7 to 12, if the student has capacity of consent, parental/guardian consent is not required."