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Chris Selley: Premiers with reasonable school gender policies need to cool their jets

I suspect Moe's and Higgs’ policies will eventually be vindicated in the courts, which would be the best possible outcome in terms of calming everyone down

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Saskatchewan Premier Scott Moe and New Brunswick Premier Blaine Higgs.
Saskatchewan Premier Scott Moe, left, and New Brunswick Premier Blaine Higgs. Photo by Kayle Neis/Postmedia; Stephen MacGillivray/The Canadian Press; Files

The notwithstanding clause of the Charter of Rights and Freedoms doesn’t come with a user manual. Some scholars claim to know what its authors intended and did not intend it to be used for, or how often, or at what point in the legislative process. But 50 years later it simply doesn’t matter: Section 33 says what it says; the Charter wouldn’t have passed without its inclusion; and it’s almost certainly never going to change.

National Post

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Ultimately it falls to each of us then to decide when (if at all) the override clause is appropriate. So here I go: Saskatchewan Premier Scott Moe’s vow to use Section 33 to protect the province’s new policy on students who wish to “socially transition” at school is a needless escalation in a larger culture war that Moe, and New Brunswick Premier Blaine Higgs, seem too eager to fight. Some potentially very vulnerable kids are caught in the crossfire.

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Both provinces’ policies are entirely reasonable as written, and could be even more so with a few tweaks: Basically if you’re over 16, you can “socially transition” on request. You are free to go by a different name or assume a different gender identity at school.

If you’re under 16, parental consent is required — but importantly, parental notification of the child’s request is not. The oft-invoked spectre of schools “outing” kids to their perhaps violently intolerant parents is in fact explicitly ruled out in both provinces’ policies.

“In situations where it is reasonably expected that gaining parental consent (for changing name or gender at school) could result in physical, mental or emotional harm to the student, the student will be directed to the appropriate school professional(s) for support,” Saskatchewan’s policy reads. “They will work with the student to develop a plan to speak with their parents when they are ready to do so.”

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New Brunswick’s policy, while broadly similar, even stipulates that schools can use a child’s preferred name and gender so long as that student is consulting with appropriate professionals on a plan to bring their parents into the discussion.

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