Law professors say pronouns case may end up in Supreme Court

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When UR Pride brought a legal action against the province’s pronoun policy for students under age 16, they launched the opening salvo to a legal battle that may seethe in the courts for years, according to academics with expertise in constitutional law.

The ink was barely dry on the government policy entitled “Use of Preferred First Name and Pronouns by Students,” dated Aug. 22, when the non-profit, which offers support to 2SLGBTQ+ people out of its University of Regina office, brought an originating application Thursday, seeking to put the brakes on its implementation and further have it struck down.

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The legal action takes issues with areas of the policy requiring school staff to obtain parental or guardian consent when a student under age 16 requests their “preferred name, gender identity, and/or gender expression” be used, and not to comply with the request absent that consent.

UR Pride’s legal action says the policy infringes on two rights guaranteed by the Canadian Charter of Rights and Freedoms, those being the right to equality and the right to security of the person. It further states that these infringements, as alleged, are not justifiable in a way that would allow them to be deemed lawful.

The government indicated Friday it would hold the line on implementing its policy, but did not comment on what arguments it may make to support it in court.

Florence Ashley, a professor at the University of Alberta’s faculty of law and the school’s John Dossetor Health Ethics Centre, said “I think the big sticking points will be: What is the intended purpose of the policy? What was the process followed with that policy? And then, what is the empirical evidence that there is in support or against the policy?”

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Ashley, who uses the pronouns they and them, said in this country governments have particular obligations to “guide their policy-making through the lens of the best interests of the child and the emerging autonomy of youths.”

Regarding the right to security of the person, as it intersects with the autonomy of youth, they said a robust precedent exists through a case decided in the Supreme Court of Canada, where they previously worked as a clerk.

In that case, the question was whether a 14-year-old had the right to refuse blood transfusions for religious reasons. Ashley said the court found that in order for the law to respect the Charter, the power to decide had to be given to minors deemed sufficiently mature, and the views of those not deemed sufficiently mature had to be considered and weighed according to their maturity.

The applicability of that case may factor into arguments about the right to security of the person in this case, they said.

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Regarding the right to equality, Ashley said a detrimental distinction toward transgender students “seems fairly difficult to deny” in this case, though the parties will have to debate it.

“I think a lot of the fight will end up occurring at the justification stage,” they said, regarding the right to equality.

“We will have to see what the government has proposed, in terms of evidence.”

They said they feel there is a significant likelihood that this case, or one that asks the same questions in another jurisdiction, will end up at the Supreme Court.

Rebecca Johnson, a professor in the University of Victoria faculty of law, who also once worked as a clerk in Canada’s highest court, agrees.

“I anticipate this will be in the courts for many years,” she said.

She cited a number of areas of law where lawyers handling the case will likely look for precedent, echoing Ashley on the issue of medical intervention, adding situations where limitations have been placed on schools providing information to children on abortion or reproductive health.

“In schools, quite often it’s common that certain information can’t be given to a child without the parent’s consent,” she said, noting that there have been battles around the rights of people under age 16 to make decisions about information they will access.

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However, not unlike the issue of same-sex marriage or other areas where controversy has arisen, she believes it’s unlikely that a court decision will settle the matter in the hearts and minds of all Canadians.

While the case gets at issues of constitutionality, she feels it’s really rooted in a societal struggle.

“I think behind all of this is kind of a more hidden question about people’s fears about change, transformation, and identity,” Johnson said.

“If this remains an issue where governments feel the need to protect in this fashion, then it won’t matter if the courts strike down what they’ve done.”

Governments may take new action as society wrestles with what she described as “the difficult political issues.”

“Identity matters,” she said, noting that deep at the heart of each person is the “ability to make those decisions about who we are, to say who we are, to control who we are.”

bharder@postmedia.com

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