Sask. Child Advocate: Pronoun policy could run contrary to human rights laws, needs changes

The Saskatchewan Child Advocate says the provincial government's new policy regarding the use of different pronouns in schools could violate human rights.

Child Advocate Lisa Broda announced the review in August, shortly after the announcement of a new policy requiring students under 16 years old to seek parental consent before changing their pronouns or preferred first names in a school setting. 

In a news release announcing the results of her review, Broda said such strict rules around consent "could result in a violation of a young person's rights under provincial, constitutional, and international human rights laws."

While the advocate's office says the recognition that youth over the age of 16 can provide their own consent is positive, Broda found the emphasis on age is not justifiable.

“Many young people under the age of 16 will have the capacity to make this type of decision. Giving them the chance to demonstrate capacity is an important step in accommodating their right to their gender identity,” said Broda.

While the advocate agreed that parental or guardian inclusion in schools is essential to creating an environment that serves the children’s best interest, Broda also recognized the rights of the child.

“It is critical that this be understood from a child rights perspective,” the report says. “Children are human beings with their own rights and legally recognized ability to make certain personal decisions in accordance with their maturity and capacity.”

The report references the mature minor doctrine. In 2009 the Supreme Court of Canada confirmed the doctrine as the standard to apply when youth want to make independent decisions.

The report defines gender identity as existing on a spectrum of masculine, feminine, non-binary, or anything in between, or “who you know yourself to be,” noting that gender diversity is part of the human condition, with people challenging binary understandings of gender throughout history.

Transgender and gender-diverse youth are vulnerable, the report says, and continue to face stigmatization and fear.

“The duress from not having one’s gender identity and expression respected is what leads to individuals experiencing adverse mental health problems such as anxiety, depression, and suicidality,” the report says.

The report references the Saskatchewan Human Rights Code, with sections two and 13 guaranteeing that children and youth have the right to education without discrimination, noting that “misgendering” is a form of discrimination.

The report also states that not letting teachers and other school staff to use preferred names and pronouns of students without prior consent from their parent or guardian is also a violation of their rights under the United Nations Convention on the Rights of the Child.

Broda also expressed concern that the policy could put further pressure on existing school supports.

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“In 2022, the Government of Saskatchewan accepted our recommendation to increase the presence of mental health supports in schools, however indicated that work would not begin on the implementation of this recommendation until 2026," Broda said.

"It is unclear to our office how the education system will provide sufficient support in situations where a student is negatively affected by this policy."

Broda's review makes offers a pair of recommendations.

The first asks the Saskatchewan government to amend the policy to "recognize the right of all individuals to non-discrimination on the basis of gender identity and expression, to "remove ambiguities" around the policy's scope and to respect "the preferred name and pronouns of students able to demonstrate the capacity to make personal decisions."

The second recommendation asks the Ministry of Education to "develop and implement a concrete plan to increase the professional supports available in schools to facilitate parental inclusion when in the best interests of the child."

The advocate's office says the findings of the review have been shared with the ministry.

Premier Scott Moe has signalled his government plans to enshrine the policy in law and that he's willing to turn to the notwithstanding clause to stave off potential Charter challenges.

The policy is currently subject to a legal challenge by a University of Regina-based pride organization and Egale Canada.