What If Kids Had Charter Rights? Surprise! They Have.
One of the questions I always enjoyed asking school kids is, “To whom does the Canadian Charter of Rights and Freedoms apply?” While there are many possible answers, one that I like to hear is that the Charter is about the relationship between governments and the people who live in Canada. In other words, it applies to all of us.
Students are sometimes surprised to learn that all their rights accrue at birth. While everyone’s rights are subject to limitation, those limitations must be demonstrably reasonable. A former colleague and dear friend reminded me recently that he had taken this to heart. When he became a parent, he felt it was important to explain to his child that when he said no, he had a reason for doing so and that he needs to communicate that reason. I believe that made him a great parent. He sees his child as a rights holder.
Schools are in loco parentis. This means that they must take the same care of their students as a prudent parent should of their children. This does not mean that schools must always consult with parents or that they require parental permission for everything that happens in the classroom. We do not expect teachers to seek the authority to teach the curriculum or to go about their daily routines. Provincial governments are elected by the population that sends children to public schools. Education policies are developed by those governments and those policies must be consistent with Charter. But how responsive is this process to the needs of individual students?
The government of New Brunswick made decisions about how children in their schools can be addressed. Policy 713 was originally drafted to protect the interests of children who request that a different name, gender, and/or pronouns other than those on their birth certificates be used by schools. This policy was changed when a new Minister decided that “parental rights” needed to be invoked. Kids could not have these requests honoured unless their adults gave permission for the schools to do so. Not all families are respectful of their children and not all children are safe in their families. To be clear, while parents have legal obligations to protect children and to provide the necessities of life, the Charter says nothing about parental rights. Children are not the property of their families – or of anyone else.
Schools are subject to the Charter and are required to respect Charter rights that are held by students. If a child claims the right to freedom of expression, can schools limit their expression? As usual, it depends upon a multitude of factors. However, the questions we should be asking are, in essence, the same ones that law makers and courts need to ask.
Firstly, why do we want to limit a child’s expression? Do we have a good purpose for doing so, or is it a matter of expedience or convenience? A student might be expressing him or herself in an unpleasant or even obnoxious manner. Is the adult’s discomfort a sufficient reason to take away a Charter right?
Will silencing a student achieve a beneficial goal? Or will it be a missed opportunity to listen to a young person who is in the process of learning something new? Will a temporary return to the status quo, a place where names and genders designated at birth are the rule, be worth the cost to the student’s democratic rights? What will the student actually learn from the experience of being silenced?
And finally, what else will happen when adults, outside of school, choose to limit a student’s expression? The chill caused by quelling expression in young people can have a long-term effect. Will the student decide that telling adults who they are and what they think isn’t worth the effort? Will we have lost a voice in a democracy that requires diversity in order to be healthy? Will we have contributed to an ever-dividing and polarized society?
When a province lacks the courage to allow learners to be who they are, especially learners in the process of working out where they belong in society, it is complicit in the destruction of democracy. Will the newly elected government in New Brunswick restore its former policy that allowed students to designate their own names and pronouns? Will the United Conservative Party in Alberta succeed in outing trans and non-binary kids to their families? Are these laws even constitutional? Will we continue to permit our governments to endanger our most vulnerable children and then limit their right to freedom of expression?
As a society we ask children to show respect for their adults. We ask them to honour our customs and laws. How will they learn to do this if we choose to unreasonably take those rights from them when they are still developing an understanding of what it means to be a rights holder in a democracy?
