Yes, the feds can actually override provincial anti-trans school policies. Here’s how by Emmett Macfarlane, Feb 19, 2024, Declarations of Invalidity
I have written about the controversial new anti-trans policies adopted by right-wing premiers across Canada that would require schools to report, in the name of “parent’s rights”, anytime a child wished to be referred to by a new name or different pronoun. Saskatchewan even went so far as to invoke the notwithstanding clause to protect its new law preventing children under 16 from making such changes without parental consent.
Critics have pointed out that the slew of new rules/proposals in places like New Brunswick, Alberta, Ontario, and Saskatchewan – removing any and all discretion for teachers and schools with respect to parental reporting – raise serious questions of harm, knowing that not all parents are supportive of alternative gender expression and that, unfortunately, some parents are outright abusive. (This anti-trans moral panic has led to even more sinister developments in Alberta, where Danielle Smith has proposed bans on medical intervention for minors, even where parental consent has been given; so much for “parent’s rights”!)
One can’t help but wonder how much of it is geared towards distracting us all from the fundamental problems these governments have all failed to address, from the crumbling state of their health care systems to the housing crisis.
And debilitating drought and water restrictions
Still, it is difficult to ignore the trampling of the rights of a distinct and oppressed minority, and so some people have questioned what federal intervention might look like here. It is widely thought that there isn’t much the feds can do, especially where the notwithstanding clause has been invoked to shield such rules from a Charter challenge.
But there’s a potentially straightforward solution: the federal Parliament could pass a new Criminal Code provision making it illegal for anyone to out someone in a context where they have reason to believe that outing them might result in physical, emotional, or psychological harm. This law would, in my opinion, apply to any situation where a child has indicated to a teacher that they are hesitant to inform their parents that they wish to identify by a non-cis gendered pronoun, etc.
I have no reason to believe that such a law would not fall squarely within federal authority as a valid exercise of criminal law. The pith and substance of the law would be to mitigate harm, which is central to the criminal law power. As such, to the extent there is any conflict with existing provincial rules pertaining to education policy, the federal law would effectively override provincial rules by virtue of the doctrine of paramountcy. And provinces would not be able to invoke the notwithstanding clause in response, as it applies only to certain sections of the Charter, not the division of powers.
There may be some aspect of this I haven’t thought through. Perhaps there is some legal objection I am not thinking about, and I welcome comments to correct me if I’m wrong. Moreover, as a political matter, it is difficult to see the federal government pursuing this – unfortunately, these anti-trans laws have a good deal of public supportin my view, because of ignorance and hate fed by religions, and the Trudeau Liberals have not always been willing to act on principle when the prospects of political fallout are looming (but really, looking at the polls, one must ask what the hell they have to lose at this point).
But at the end of the day, if the feds see these laws for the unjust, harmful nonsense they are, I believe they can take action, reasonably easily, to protect children who are now being subject to policies that make schools less safe for them.
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