Rights talk, "parents' rights", and the rights of children

The undeniable transphobia of Moe, Ford, and Higgs's schools 'policy' on gender affirmation

Social progress is far from linear. What seemed like positive steps towards recognition for people on the basis of gender identity and gender expression a decade ago - for example, governments across Canada added protections within statutory human rights instruments and, unlike with sexual orientation in the 1990s, without being directly compelled to by courts! - has more than stalled. We are witnessing an anti-trans backlash, a moral panic about pronouns and schools and drag queens and our children.

While hate is not imported - Canada suffers from its own domestically-grown systems of oppressions, of course - the particular, instrumental panic about schools and pronouns certainly does feel like a US import. From New Brunswick to Ontario and Saskatchewan, conservative premiers are now declaring, in the name of “parents’ rights”, that schools must be compelled to report to parents if a child wants to be referred to by a different name or a pronoun that does not correlate to their sex at birth. Scott Moe, premier of Saskatchewan, has upped the ante, announcing he might use the notwithstanding clause to protect his government’s new rule to that effect.

The suggested recourse to the notwithstanding clause is revelatory, at least of an implied recognition that the blunt or absolutist rule disallowing any exercise of discretion by educators to protect children is blatantly unconstitutional.

That conservative politicians are leaning into this should not surprise. Indeed, the policy is robustly popular. After all, these brave politicians are merely stepping up to protect the rights of parents to know what is happening with their child! But it is a rhetorical gloss - lipstick on an unconstitutional pig - that convinces not just transphobic people but also the typical parent who cannot imagine a teacher or a school withholding information about their child from them.

The problem, of course, is that the entire idea of absolute parents’ rights is a mirage, propagated by the type of “rights talk” the premiers are engaged in.

My claim is not that parents have no rights. There are good reasons we require permission slips for field trips and even, as a general rule, that we might speak of an informal “right to know” enjoyed by parents and guardians. Much of our law and our social rules around children are premised on the fact that kids need caring for, and that young children especially often lack the capacity to make important decisions for themselves.

But to say that the rights of children are and can be limited is a far cry from saying children do not have rights of their own, even vis-a-vis their parents. We recognize that children under 18 and yes, even under 16, can be judged “mature minors” and thus endowed with the capacity to make life and death decisions in health care matters. So we’ll allow, in certain contexts, a 14 year-old to refuse life-saving treatment - even against their parents’ wishes - but we’re going to stop them from requesting, on their own accord, the use of an alternative pronoun or name?

Anyone who denies that transphobia is at the heart of such a policy is putting “civility” or their own credulity over commonsense.

Indeed, the policy is unconstitutional in myriad ways. It is not merely an affront to the autonomy and liberty interests of the ‘mature child’, but the equality rights and inherent dignity of any child’s self expression. I do not mean to argue that parents should never be involved in these discussions or decisions, but in cases where a child is afraid to tell their parents something, advocates of this policy need to ask themselves why.

I suspect most of the parents who support this policy are not, in fact, imagining that their own child would hide this information from them. But they are also refusing to ask themselves what it potentially says about the parents of children who do. This absolutist policy condemns at least some subset of children to literal abuse and harm. Educators owe a duty of care to children, and by allowing the rights talk of Moe, Ford, and Higgs to dominate the framing of this issue, we hide the extent to which not all homes are safe places for children.

As a practical matter, the framing of this policy by its defenders also hides the implicit trust we place in teachers and schools by default. During the school year, on weekdays many kids spend more of their waking hours with their teachers than their parents. We trust teachers to care for our children, to educate them, but on this issue we have suddenly decided that we must remove any discretion they have to exercise that duty of care.

At the heart of this is a transphobic set of attitudes that strongly implies - if not screams - that if a child questions their gender identity something must be wrong. Teachers don’t report to parents every time a child actually misbehaves, and have never been expected to (if they were, there’d be reports on almost every kid every day). But it is on this issue that parents' “right to know” is suddenly absolute?

Advocates of this nefarious policy would have you believe the alternative is that parents are never informed about what is happening with their child, that teachers and principals get to hide sensitive information at will from parents, without cause or reason. They want to mask the reality that not all children live in safe or happy homes, and that if a child is requesting something and does not want their parents to know, it might be for good reason. When we remove the ability of educators to exercise good judgment, all we’re left with is less good judgment, and significantly increased risks of harm for at least some children. People need to think this through and see it for what it is.