It’s been more than a month since Saskatchewan used the notwithstanding clause to make its Parents’ Bill of Rights Canada’s first provincial education law that could limit gender identity in schools. But the debate around it as intense as ever with a now-moot constitutional challenge still moving forward in the new year.
“Parental rights means I have the ability to create a safe environment for my child to grow up,” said Dustin Mathies, a father of two in Swift Current, Sask., who supports the law. “One of the biggest things is having control over what my kids are hearing, what they’re learning.”
But others say the law does more harm than good.
“The problem is that this bill allows all of the other not good things to happen in the family unit — the controlling and forceful need to impose traditions,” said Lynnai Hicks, a Regina mom whose 16-year-old is non-binary.
The debate pits people who say the law is about ensuring parental involvement in a child’s formative years against those who worry the bill will hurt vulnerable kids while confusing parents about what their rights actually are.
How we got here
The most controversial part of the law mandates school staff get parental consent before using a student’s new name or gender identity. Saskatchewan’s law came after a similar policy in New Brunswick.
Policies are easier to change compared to laws, which would require a legislative process for amendments. When New Brunswick changed its Policy 713 to have a similar rule, several school boards wrote their own to effectively undo the changes. Several of the boards have received provincial letters of “corrective action,” but most have stuck with their own policies.
Before Saskatchewan’s policy became law, critics filed court arguments claiming the policy violates sections 7 and 15 of Canada’s Charter of Rights and Freedoms. Those include the right to liberty, security of the person and equality rights.
A Court of King’s Bench judge in Regina granted an injunction to pause the policy until a constitutional challenge could happen, adding the policy could cause “irreparable harm” to students unable to have their gender identity used in school.
That court challenge is expected to continue in January, despite Saskatchewan using the notwithstanding clause to push the policy into law. It’s the first province to use the clause to override the Charter rights of children.
Mathies and his lifelong friend Murray Froese think it was the right call for their teen and preteen children.
“With the access kids have to social media, they have everything at their fingertips to explore some pretty scary subjects,” Froese said recently, as the two friends sat at a Swift Current restaurant.
“When you’ve got a 13-, 12- or 11-year-old who’s obviously not mature enough to handle some of these more serious issues … it can easily cause a lot of confusion.”
That’s where the law comes in, he said.
“If there’s issues that are happening behind your back … it adds a huge variable of security to know that, legally, we have to be informed as parents.”
What does the Charter say about parental rights?
This specific idea of parental rights isn’t explicitly found in the Charter, according to University of Calgary law professor Jennifer Koshan.
“So we have to probe a bit deeper and think about how other rights and freedoms that are framed in more general language might be applied,” she said.
Under the right to liberty, Koshan said parents do have some decision-making rights for their children, mainly around religion, health care and education. But there is a caveat.
“If those decisions would potentially harm the child, that’s when the children’s rights will be paramount,” she said.
“Parental rights play second fiddle to the rights of the child in those kinds of circumstances.”
‘Parental rights’ and family law
Saskatchewan family lawyers wonder how the bill’s title will affect parenting disputes.
“Family lawyers are already dealing with some of the heaviest concentrations of conflict with children,” said Beau Atkins, CEO of Evolve Family Law in Saskatoon.
“My concern is this isn’t going to reduce it at all. It may increase it.”
The federal Divorce Act cut possessory words in 2019 like “custody” and “access,” encouraging parents to focus on the needs of their children in court, he said. Atkins worries this law’s language could undo some of that work.
“Whenever I’m faced with a parent who’s separating and has an entitlement complex … it’s really rooted in almost possessive rights rather than truly looking at what’s in the best interest of these kids,” he said.
“I’m just concerned about what the title of ‘rights’ is going to do. I feel like it’s going to somewhat pervert reality for a lot of separating parents.”
Anti-hate group worries for LGBTQ community
Critics of the law say it puts trans kids at risk of informing their families of their gender identity before they’re ready.
“Families that maybe aren’t supportive of their [child] being gay or trans make us very concerned because those situations have a great potential for abuse,” said Evan Balgord, executive director of the Canadian Anti-Hate Network.
Balgord said parents should know that, for decades, the concept of parental rights has been used by the far-right to spread homophobic and transphobic rhetoric.
“You’ll often see arguments about parental rights appearing alongside — not always, but very frequently — arguments against trans people existing in general,” he said.
When asked about the line between genuine concern and discrimination, Balgord said the majority of speech around parental rights is not hate speech.
“Where it does become hate speech is where it kind of crosses a line and there is an allegation or an insinuation that gay people or trans people are collectively pedophiles, or that they are trying to groom children for sexual abuse.”
Putting the law into practice
Before the law, Regina teacher Brendan Dickie said if a student were coming out, he’d always ask if their parents knew.
“But now it shifts to, ‘OK, now I have to go and tell my admin, and then they have to phone your parents and talk about it.’ And that’s scary for kids,” he said.
The entire process has Dickie worried about his own future.
“It kind of stresses me out because I’m thinking how long until they start telling queer teachers they can’t be teaching in schools if we’re going down this road?”
Dickie leads a LGBTQ community choir in Regina, giving him and others a sense of solidarity. It’s where Hicks and her non-binary 16-year-old sing once a week.
She understands why parents want to know about big identity changes, but she worries for students whose families won’t welcome them.
“If they need a listening ear or someone to understand without judgment – who’s not going to tell their parents – then I’m that person,” she said.
“My child has the right to be an individual. I’m here to support their growth, not to dictate who they become.”