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  • Writer's pictureThe Moot Times UCalgary Law

Exploring Shifting Policies for Transgender Rights in Alberta, Saskatchewan, and New Brunswick

Contributed by: Thao Nguyen

On February 6, 2024, the Premier of Alberta, Danielle Smith, released an announcement via Twitter about the intention to pass policies on requirement of parental consent for any pronoun change request at schools for students under 15 years old.

The parental consent announcement was somewhat primed due to the prior almost unanimous adoption of Policy Resolution 8 at the Alberta United Conservative Party (UCP)’s Annual General Meeting in the fall of 2023, influenced by other similar laws and policies passed in Saskatchewan and New Brunswick.

To provide some context for this announcement, the Province of New Brunswick adopted a similar parental consent requirement in the latest revision of its Policy 713: Sexual Orientation and Gender Identity on August 23, 2023. The purpose of the policy is to “set minimum requirements for school districts and public schools to create a safe, welcoming, inclusive, and affirming school environment for all students, families, and allies who identify or are perceived as LGBTQI2S+.”

Section 6.3 of Policy 713 states that:

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.

In Saskatchewan, the Parents’ Bill of Rights, or the Education (Parents’ Bill of Rights) Amendment Act (that amended The Education Act, 1995, SS 1995, c E-0.2), which received royal assent on October 20, 2023, requires parental consent for change to gender identity as per s. 197.4.

Section 197.4 states that:

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.

Section 197.4 is declared to operate notwithstanding sections 2, 7, and 15 of the Canadian Charter of Rights and Freedoms (Charter), pursuant to section 33(1) of the Charter (at s 197.4(3)) and notwithstanding sections 4, 5, and 15 pursuant to section 52 of the Saskatchewan Human Rights Code (at s 197.4(4)). This invocation of the notwithstanding clause is in effect for five years, pursuant to the Charter, and will expire on October 20, 2028.

Both laws do not require parental consent if seeking consent is not possible. Saskatchewan’s Parents’ Bill of Rights recognizes in s 197.4(2) that “physical, mental, or emotional harm” might occur during this process. In both provinces, in these situations, students are directed to meet with a professional to develop a plan to talk to their parents.

These policies are controversial as they impose additional parental control over gender expression and identity of affected students, but the policies were implemented without consultation with the affected groups. This process raised the issues of Charter violations of impacted students’ guaranteed freedom of expression, right to equality, right to liberty, and right against cruel and unusual treatment or punishment.

Parental Rights in Canada

Many commentaries have discussed the issue of parental rights in Canada. In a November 2023 commentary, Professor Jennifer Koshan, from the University of Calgary, discussed major case law related to parental rights. The blog noted that even though parental rights are not an express guarantee in the Charter, “the Supreme Court of Canada has interpreted freedom of religion under section 2(a), and the right to liberty under section 7, to include some protection of parental decision-making in regards to their children.” 

Parental rights are limited within the scope of the best interests of the child. Recent case law has considered and discussed the best interests of the child balanced with the diminishing parental decision-making power and the growing capacity and maturity of children to make decisions on their own behalf. The age limit for decision-making by minors, however, is not fixed and should be decided on a case-by-case consideration in determining a child’s decision-making capacity.

On top of the case law allowance of parental rights, children’s rights are recognized in international human rights instruments, including the Convention on the Rights of the Child (CRC). The CRC, ratified by Canada in 1991, specifically requires that the best interests of the child be the primary consideration “in all actions concerning children” (at Art. 3). Within the CRC, the right of a child to their identity and “the right to express those views freely in all matters affecting the child” for those capable of their own views are relevant to the current discussion around parental consent for students’ use of pronouns.

Potential Harm of Parental Consent Requirement

These new laws and policies pose negative damages on vulnerable impacted groups. On one side, students under 16 might suffer potential psychological, physical, and mental harm when, or in the contemplation of, requesting parental consent for their pronoun change at school; on the other side, they might suffer similar harm from being misgendered at school if they choose not to request parental consent.

Professor Koshan, additionally argued that parental control of one’s gender identity could amount to family violence due to the psychological and mental harm that it could cause to the child. Canada’s Divorce Act lists family violence as a factor to be considered for the determination of the best interests of the child. The Divorce Act has a broad definition of family violence, which is adopted by some provinces and territories in Canada. It states at s. 2(1):

Family violence includes physical and sexual abuse, threats to cause bodily harm, psychological and financial abuse, harassment, and failure to provide the necessaries of life.

Currently, the Family Law Act in Alberta defines family violence a bit more narrowly to include only physical, forced confinement, sexual abuse, or fear for safety (at s. 18(3)). Professor Koshan criticized this narrow definition and advocated for the inclusion of psychological/emotional abuse and coercive control in the definition of family violence in the provincial Family Law Acts in Alberta and other provinces.

Current Legal Action on this Matter

In Saskatchewan, legal action was brought forward by UR Pride to declare the announced “Use of Preferred First Name and Pronouns by Students” policy (Policy) (which was later repealed and passed as Bill 137 (or Parents’ Bill of Rights)) to be unconstitutional. An interlocutory injunction had been granted on September 28, 2023 by the Saskatchewan Court of King’s Bench to block the implementation and enforcement of the Policy. 

The UR Pride application specifies the two distinct requirements constituted by s. 197.4, which are the “Misgendering” requirement and the “Consent” requirement. It recognizes the two distinct effects that the Misgendering and Consent requirements could have on affected students. The Consent requirement puts additional consent requirements on students under 16 who wish to use different pronouns at school to “come out,” and the Misgendering requirement allows school staff and teachers to use the wrong pronouns to address students if they are too afraid to come out. Both requirements lead to harmful psychological impacts.

Subsequent to the passing of the Parents’ Bill of Rights to amend The Education Act, UR Pride had submitted a new application to amend its original application to declare that s. 197.4 of The Education Act limits the right of gender diverse students under the age of 16 not to be deprived of security of the person except in accordance with the principles of fundamental justice (as guaranteed in section 7 of the Charter), the right not to be subjected to any cruel and unusual treatment (as guaranteed in section 12 of the Charter), and the right to equality (as guaranteed in section 15(1) of the Charter), and that none of these limits are reasonable and demonstrably justifiable (as required under section 1 of the Charter). They applied under s 52(1) of the Constitution Act, 1982 for the Consent and Misgendering requirements to be declared of no force and effect. This legal action is still in progress, with the last update from UR Pride on February 16, 2024.

Besides the Charter arguments brought forward by UR Pride, as listed above, an organization could argue the federalism validity of such a law, like the seminal case of R v Morgentaler, [1993] 3 SCR 463 did in the circumstances of abortion. However, federalism is considered a weaker argument for this case, as consent requirement for student pronoun change is new and does not have long historical records.

These new legislations passed by the governments of New Brunswick and Saskatchewan can have vast social impacts. Parents, youths, and impacted communities are watching closely over the development of similar policies and laws in Alberta. The new legislation is expected to be introduced and passed at the Alberta Legislature possibly in the fall.

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