On weak defences of provincial anti-trans policies

In June, a couple of academics published a paper (pdf) for the Macdonald-Laurier Institute defending Alberta’s anti-trans policy proposals. The paper is an assemblage of particularly weak arguments, and is replete with projection, as it accuses the government’s critics of being “reflexively ideological” (all while handwringing about “biological males” in girls’ sports - maybe let’s admit that ideology is inescapable here for everyone?) and also of mischaracterizing both the policies at stake and the law, while itself doing exactly that.

I’m not going to give you a line-by-line account (you can read for yourself), but I do want to address the fallacious nature of at least some of the framing/arguments, particularly as the authors cite a couple of my Substack posts, and at least from this critics’ perspective, manage to mis-frame and completely flip critics’ arguments on their head.

For this purpose, I want to focus on the parental/guardian consent provisions relating to use of pronouns or new names for children in school (Alberta’s proposals also deal with a medical ban, inclusion in sports, and other issues - I will stay focused on the policies on parental consent/notification for gender identification, pronouns, and names in schools, as New Brunswick and Saskatchewan have also brought forward), but in that context will examine some of the general framing of this piece.

To begin, the authors try to frame their claims as rooted in an interest in the welfare of those children who might be trans or assert a different gender identity. They accuse the government’s critics in the following way: “They wrongly assume that trans-identifying children do not experience special limitations in their capacity to understand and to act in accordance with their own best interests on the issues at hand. They wrongly assume that trans-identifying children are unlike other children, in that they are not legally entitled to, nor derive a special benefit from, the guidance provided by parents and other caretakers.” (p. 10)

Here, the authors pull a neat trick. The risk to the children’s rights - their vulnerability - is not the transphobia inherent in a policy that would force them out to their parents without exception, but the implied lack of ‘legal entitlement’ to the guidance provided by parents and other caretakers under the previous policy status quo. This argument makes it sounds as if, absent the government’s absolutist legislation, children would not be able to receive guidance from their parents/caretakers or that schools/teachers have been actively working as roadblocks to such guidance.

This is a patently absurd claim. No one has argued that the status quo was, or should be, that parents are never informed or brought into conversations children might start with their teachers about how they identify. There is no reliable evidence, systemic or even anecdotal, to suggest that schools or teachers have been preventing or even discouraging children from receiving guidance from their parents. Indeed, the fact is this issue emerged in New Brunswick and spread to Alberta and Saskatchewan not because of any identifiable policy problem on the ground, but because of an innate anti-trans moral panic, borrowed from south of the border by unscrupulous right-wing politicians.

What concerns critics is that there may be cases where children have good reason to not want to speak to their parents about their sense of their gender identity or their preferences regarding how to be addressed at school. This is precisely because trans-identifying children are significantly more likely to suffer from parental abuse than cis-gendered children. The authors seem to acknowledge this point (p. 13-14), but complain that critics oppose the “very idea” (p. 14) of the legislation in question (citing just two of the seven critics they cite near the beginning of their piece).

Although the authors seem to briefly acknowledge that it is “possible to argue” policies might be better tailored to capture the potential for real harm (p. 13), they quickly assert in the next paragraph that “any good faith reading of the Alberta proposals understands them as attempts at enhancing the protection of the Charter rights of trans-identifying children and their parents, as well as the protection of the Charter rights of girls and women” (p.14). The problem with this fallacious claim is that where critics have real concerns that absolutist policies raise very real risk of harm, there is no evidence to suggest the policies “enhance” the rights of trans kids because there are simply no cases of a child being harmed under the previous policy status quo.

Indeed, the authors’ entire defence of these policies, and their assertions regarding their purported benefits, hinge on the idea that the policy would be the only thing ensuring parental notification and consent.

The authors then claim that the New Brunswick and Saskatchewan policies actually do “feature exceptions aimed at those cases where disclosure might give rise to a risk of abuse,” (p. 16) except a reading of both shows this isn’t actually true, at least not in the sense of students in those (hopefully rare) instances being able to be addressed how they wish by their teachers and fellow students. The New Brunswick policy reads as follows:

Formal use of preferred first name for transgender or non-binary students under the age of 16 will require parental consent. If it is not possible to obtain consent to talk to the parent, the student will be encouraged to communicate with the appropriate professionals to develop a plan to speak with their parents when they are ready to do so.

The use of preferred first name for transgender or non-binary students under the age of 16 may be used without parental consent if the student is:  communicating with appropriate professionals in the development of a plan to speak to their parents; or  when communicating one on one with school professionals for support.

The relevant provision of Saskatchewan’s law reads as follows:

197.4(1) If a pupil who is under 16 years of age requests that the pupil’s new gender-related preferred name or gender identity be used at school, the pupil’s teachers and other employees of the school shall not use the new gender-related preferred name or gender identity unless consent is first obtained from the pupil’s parent or guardian.

(2) If it is reasonably expected that obtaining parental consent as mentioned in subsection (1) is likely to result in physical, mental or emotional harm to the pupil, the principal shall direct the pupil to the appropriate professionals, who are employed or retained by the school, to support and assist the pupil in developing a plan to address the pupil’s request with the pupil’s parent or guardian.

In neither case are these actually exceptions to the absolutist policies at stake, they are merely requirement that children potentially facing the risk of harm work with an ‘appropriate professional’ to pursue the required parental disclosure!

Having misrepresented the nature of the policies enacted in the other provinces, the authors assure us “Alberta’s policies are expected to follow a similar approach.” (p. 16)

The authors then turn to established Charter jurisprudence to demonstrate that parental rights have been protected, particularly under section 7’s right to life, liberty and security of the person. They point to the landmark case B. (R.) v. Children’s Aid Society of Metropolitan Toronto (1995), which concerned state interference with parental decision-making over medical treatment (blood transfusions).

I think this fails, quite dramatically, to appreciate the nature of the section 7 claims at stake in different contexts. It is a tenuous argument at best to suggest that a similar section 7 claim could arise with respect to parental decision-making or notification where a child wants to be referred to by a different name or pronoun but who disclosed that they did not want to tell their parents. Again, the implicit and unsubstantiated assumption here is that under the existing policy status quo, schools and teachers were working to withhold the involvement of parents as a general matter. There is no evidence supporting such an assumption. All the policies at stake here do is remove virtually all the discretion teachers and schools might have to make a determination in those cases where a child expresses discomfort about telling their parents, and to assess the risks involved.

More to the point: this discretion already exists across a whole host of sensitive disclosures children under 15 might make to a teacher. From reporting parental abuse or questionable family behaviour to difficult interactions with classmates to first crushes, teachers are inundated with information from and about their students on a day-to-day basis. There are clear areas ( ex. parental abuse) where a child’s disclosure would emphatically not result in parental notification but rather reporting to state authorities, and clear areas where parental notification is automatic (ex. a child being injured on the playground). But there are wide swaths of areas where teachers have to decide whether something needs to be disclosed to, or discussed with, parents at all.

In the context of a student request to be referred to with a different pronoun or name, I do not see why it would be unreasonable for a teacher to query the child about whether they have spoken to their parents about it, and assess the child’s response. If a child doesn’t seem uncomfortable about the prospect of parental notification, a presumptive recourse to parental notification/discussion is surely a good norm. But the idea that the reasonable exercise of teacher/school discretion in the context of uncertain cases in this area somehow rises to the level of ‘state interference’ with parental rights under section 7 is dubious at best.

Regardless, defenders of these policies need to ask themselves why this particular context is suddenly of such glaring importance to provincial governments, absent any evidence as to their need, and distinguished from the range of matters - some with profound psychological and emotional consequence for students - that we naturally leave to teacher discretion as a matter of course. One can only assume that supporters of these government policies see children discussing gender identity or pronouns as innately harmful or risky, literally akin to a life-altering medical procedure.

In conclusion, what we have is a situation where the previous policy status-quo evinces no evidence of harm, and where the provincial policies proposed/enacted dramatically increase very real risks of harm by virtue of their absolutism. Defences of these policies ultimately serve to provide window-dressing for a blatant and rather pathetic government-led anti-trans moral panic.