(uniquement en anglais)
par: Zachary Couture
Transgender and gender non-conforming youth are under political attack in contemporary Canada. This is especially the case with newly proposed educational initiatives being levied by politicians in New Brunswick, Ontario, Manitoba, Alberta and Saskatchewan, proposing that greater “parental choice” and “parental rights” are needed in Canadian schools, and that parents should be “fully involved” with whether their child uses a different name or pronoun at school.1 Such political maneuvering is leading to legislative changes. In 2023, New Brunswick2 and Saskatchewan3 established new policies and statutory amendments that required school officials to obtain parental consent in order to use a student’s requested new gender-related name or pronoun. In 2024, Alberta followed suit by similarly amending its educational statute.4
Major news organizations have discussed the responses of activist critics to these changes: that these new laws and policies will risk forcibly outing trans youth, compelling them to stay “in the closet” or otherwise disrepair their mental health.5 Often, these laws have been framed in terms of breaching the “safety” of transgender youth. For example, Egale, an LGBTQ+ public interest group serving as co-counsel in the leading case against Saskatchewan’s educational amendments, has said that Saskatchewan’s policy will inhibit the ability of trans youth to attend school and feel accepted, and present them with a horrible choice: “either be forced to come out by the government, or be misgendered and misnamed at school.”6
The political atmosphere and concerns around these educational amendments are pressing. However, I want to query if we are overlooking something in these critical discussions on trans rights. Specifically, I ask why is there no serious discussion of the right to privacy of trans youth in the public debate? Despite using language like a fear of “forcibly outing” youth, seldom is there a robust discussion of the right of privacy. Yet surely privacy is relevant. These newly enacted laws clearly present a palpable risk of breaching the privacy of trans youth to their parents, at least regarding their transgender status. School officials are legally compelled to inform parents of a “preferred name or gender identity” request either as directly stated by statute,7 or by implication in the statutory policy.8 Even where there is any discretion by the school officials to refrain from disclosure,9 as Egale suggested, trans youth are still faced ultimately with being compelled to “out” themselves to their parents in order to not be misgendered or deadnamed at school.10
This paper seeks to uncover the state of Canadian law, and how children’s right to privacy is legally situated. In particular, I aim to highlight the barriers in judicial logics and reasoning patterns that prevent the meaningful formation of youth’s right to privacy. I note that I fixate specifically on the child’s right to privacy as vested against their parents, and not the world writ large, though I do discuss generally how children’s privacy is valued at law. Moreover, while my analysis of children’s privacy bears importance for all children, I pay special attention to and highlight the concerns of trans youth, given the manifold increase of legislation across Canada that directly attacks the privacy of transgender youth. Notably, such legislative attacks are happening in the US as well, a context I will also comparatively address.
My argument unfolds in three parts. First, I qualify what I mean when I advance privacy as a legal right for children. I note the inherent and unique limitations for how children may hold an independent interest in privacy, but also highlight why privacy bears particular importance for trans and gender-non-conforming youth. Second, I discuss the inherent limitations of the “best interests of the child” test and its failure to meaningfully administer judicial consideration of children’s dignity and autonomy interests, including privacy. I will show how in Canadian practice, “best interest” often only translates to judicial contemplation of generalized harm mitigation. This comes to the displacement of any vindication or affirmation of independent children’s rights beforeharm actually takes place. Finally, in looking at the tension in the relationship between children’s freestanding rights like privacy, and the interests of parents to guide and direct their children’s affairs, I establish how courts fail to adjudicate on the scope and limitations of parental rights in relation to children’s rights. This renders the concept of rights both amorphous, and without clear boundaries or scope. In turn, any qualification of children’s rights vis-à-vis their parents, like that of privacy, is judicially unexplored.
In making this argument, I will pay special attention to the recent case UR Pride Centre v Saskatchewan.11This was a public interest challenge against the aforementioned Saskatchewan law requiring “parental consent” over a child’s preferred name or pronoun at school – or as I refer to it here-on-out, a “compelled disclosure” law.12 UR Pridefirst successfully sought an interim injunction against the Government of Saskatchewan in 2023, pending a full constitutional case that the “compelled disclosure” law breached the constitutional rights of trans youth.13 In response, the Government of Saskatchewan re-enacted the “compelled disclosure” law but invoked section 33 of the Charter, the notwithstanding clause, allowing it to supersede some of these constitutional challenges.14 UR Pride has sought to amend its challenge; whether these amendments are granted leave is now awaiting appeal in the Saskatchewan Court of Appeal.15 However, for the purposes of this paper, I solely focus on the initial injunction application. This is because, until a full case is heard, the injunction application is the most robust judicial contemplation in Canada of children’s rights, including that of privacy, in the context of “compelled disclosure” laws. The legal test for injunction in Canada requires both an evaluation of the “irreparable harm” children are facing, as well as a “balance of convenience” weighing of the public interest.16
1. Why Does Privacy Even Matter? Transgender Youth, Safety, Human Flourishing and Dignity
Privacy as a concept is multidimensional and can be conceived of in different ways. In the tort law context, privacy has concerned deterring the undue intrusion upon someone’s private or personal affairs, or unwanted disclosure of private facts.17 However, privacy can also be conceived of as having agency or control over information concerning oneself, the right to be free from undue state surveillance, or even generally reasonable expectations around the amount of information that is revealed about oneself.18 For our present purposes, we are discussing privacy similar to how it may be conceived in tort law, specifically protection from undue intrusion into one’s personal affairs. This concept parallels what we can attribute as the common layperson’s understanding of “privacy” or a “right to privacy” – we commonly accept that it is an infringement for someone, even a close family member, to be able to access a list of your drug prescriptions, your tax returns, or intimate photos without your knowledge or consent. Yet this “common acceptance” becomes much more complicated and nuanced when we consider the rights of children.
We socially expect that children’s privacy is not individually held, but rather is blended and intermixed with the affairs of parents to function as parents. Young children often lack the capacity to handle medical records or similar personal files, and so we entrust parents – or those acting as guardians – with the responsibility and obligation over this information as “trustees of their children’s best interests.”19 In this vein, children’s privacy cannot be considered absolute, and it is even in their survival interests that their parents/guardians hold a right of access to some of their private information. However, this begs an important question, which is whether children still retain a right to privacy, over certain matters, from their parents.
A focus on trans youth underscores the relevance of children’s privacy. A child’s gender identity, preferred pronouns, gender-affirming chosen names and/or nicknames are all centrally vital to personal dignity and development. It is a matter of innate interest for trans youth to be able to have control over how, when, and even whether this information is relayed to their parents.20 Trans youth often have good reason to not want their parents or families to know their gender status. Statistics consistently show a high-rate of negative reactions from parents when trans children come out.21 Around 15 percent of trans youth run away from home due to abuse or concern for safety, and trans youth are disproportionately more likely to be houseless from being kicked out of their family home or from fleeing a dangerous family dynamic.22 One trans-rights activist in Edmonton, Rowan Morris, described having been disowned by his parents when he came out as trans, and being able to control using different pronouns in the home versus outside of the home as a necessary “survival skill.”23
It may be argued that privacy, in and of itself, is wholly distinct from the overall protection and well-being of transgender and gender-nonconforming youth.24 After all, the distress felt by trans youth over being “outed” is often not rooted in an expectation that information be kept private in perpetuity, but rather a concern over how parents or other people may respond.25 Leading science and social science research has consistently shown that for transgender youth experiencing gender dysphoria,26 the best approach for their health and wellbeing is to provide space and support for those individuals to outwardly express themselves in line with their gender identity.27 As such, it could be argued that promoting privacy, which may inadvertently encourage trans youth to withhold any disclosure or expression of their sense of gender even in healthy environments, would seem to be at odds with what could be seen as the child’s best interests, particularly by risking the exacerbation and perpetuation of gender dysphoria.28
What this argument ultimately ignores, however, is that privacy as a right is concerned with more than just the information or personal details of an individual. It concerns their agency and dignity. By this, I do not mean merely a right to choose when and how to come out, although this is clearly a crucial aspect of why many queer people value privacy. Privacy provides a foundation for one’s own exploration of their self-identity. It is very common for trans and gender non-conforming people, of all ages, to wrestle internally trying to comprehend their feelings and confusion over their gender identity; many wait to see if the feelings are temporary, or intrinsic as a part of them.29 This is natural, as navigating and understanding an internal sense of gender is relational, requiring analysis of how one understands oneself within society. As Judith Butler has theorized, gender is a pre-reflexive, and for many a seemingly mindless, choice of performance; we become our genders within the realm of our culture, consistently adhering to various societal concepts of “woman” or “man” or other.30 However, becoming a woman (or any other gender-affirming journey) is not something that culminates into a moment where one is finally a woman; rather, it is a constant process of responding to cultural and social expectations and conditioning.31 Indeed, many trans and queer community members and theorists understand “coming out” as constantly ongoing, and a socially-dependent matter of identity-management.32 It is to be expected, in questioning gender beyond what has been the dominant cis-normative structure, that one would need space for self-exploration. Many queer people feel that the role of community is central in this exploratory process, and many seek social bonds and acceptance with like-minded peers.33 Indeed, a lot of queer youth talk to their close friends in their classes about personal matters involving their gender identity, or how they want to explore who they are.34 These conversations are inherently intimate, and where disclosure laws structure a system of surveillance and report to parents by school staff and teachers, then there is reason for concern of a chilling effect on such foundational conversations over self-discovery from ever taking place.35
2. Valuing Harm Over Rights: A Child’s “Best Interests” and Privacy
The “best interests of the child” is a legal tradition premised on the state’s duty to “protect and promote the rights of the child” including within the privacy of their home.36 The best interests of the child is not only featured in many domestic legal systems, but originates as an international law principle enshrined in Article 3(1) of the Convention on the Rights of the Child.37 International and comparative law scholars, as well as psychologists, have forwarded that the “best interests” standard encodes certain foundational rights for the child, including “family privacy.”38 In Canada, the best interests of the child test figures most prominently in family law contexts, appearing as a statutory requirement for decision-makers across provinces.39 However, the best interests of the child test comes about in numerous other legal contexts concerning children in Canada, for example in immigration law.40 Despite its prevalence as a legal tradition across Canadian and international jurisprudence and academic debate, there has been a structural failure to provide a clear definition of a child’s “best interests.”41 This suggests that a child’s “best interests” at law are more of an abstract ideal than any one definitive truth.42
Children’s privacy rights may arise within the best interests of the child test, but there is no clear or consistent guarantee of this. The best interests of the child test functions as a manner-in-form practice for judicial contemplation, and does not predict any definitive determination of outcome. In some statutes, like the Family Law Acts of BC and Alberta, judges and decision-makers are provided a non-exhaustive list of factors that help determine a child’s best interest, including the child’s wellbeing, the child’s personal perspective, exposure to abuse, violence or other risks, and the child’s existing relationships.43 In other statutory contexts, decision-makers are granted authority to prescribe certain orders where they determine they are in the best interests of the child, with more limited guidance as to how the court is to come to that determination.44 Still, in the common law, courts may also invoke parens patriae jurisdiction where there is no legislation on a given matter, to make rulings in the “best interests of the child.”45 Whatever the context, “best interest” is not necessarily informed by any direct or actual valuation of children’s rights. So while children’s privacy may arise as a weighing factor that impacts a child’s safety or wellbeing, privacy is not a vested right, nor even a requisite consideration. This means that something can be determined to be a child’s “best interests” without contemplating their privacy, or any other particular right.
Privacy is put in even greater jeopardy under the “best interests” test when we consider that judicial discretion over what is in a “child’s best interest” is still subject to broader social and institutional biases. For example, throughout the history of child welfare cases in Canada, the “best interests” test was invoked as justification for separating Indigenous children from their families and communities, often by completely dismissing the role of cultural continuity for a child’s wellbeing and self-identity.46 It was through this cultural bias that the institutional removal of Indigenous children from their families became commonplace, including in what many Canadians now refer to as the 60’s and millennial scoops.47
Even absent “best interests,” privacy at law often necessitates judicial discretion. Across statutory and constitutional contexts, from tort law to criminal, determining if a right to privacy exists is often assessed in reference to a “reasonable expectation of privacy.”48 Yet the measure of “reasonableness” is boundlessly connected to social expectations around race, gender, and ability, and many have pointed out the “reasonable person” as a legal standard is subject to dominant societal biases.49 Whether an expectation of privacy is reasonable cannot be materially measured, and so requires an interpretive choice. As was stated by Ronald Dworkin, “each judge’s interpretative theories are grounded in his [or her] own convictions” and the legal logics employed by judges develop from “within society, not apart from it.”50 Indeed, thinking about the reasonability of children’s rights and expectations requires a certain engagement of viewing the matter through “the eyes of a child” and cautioning against adult-centrist reasoning – “a task which, for judges and lawyers, can often prove difficult.”51 This would be twice manifold for transgender youth, whose gender diversity is often alien to the predominately cisgender and heterosexual judiciary.52
What often happens, then, is that the rights of children become de-centred in Canadian judicial analysis by fixating instead on “harm” to children. This may reflect adult-centred logics, which may view children first and foremost as entities needing to be protected and nurtured, and less so as legal subjects. To be clear, whether under the “best interests” test or not, children have a recognized right to privacy under the Canadian constitution. In AB v Bragg Communications Inc, the Supreme Court of Canada, found that the privacy of young persons is constitutionally protected53 and that protecting privacy helps guard certain societal values, including “foster[ing] respect for dignity, personal integrity and [the] autonomy of the young person.”54 These values suggest that the privacy of children is fundamental in and of itself, based on the inherent humanity of children. Yet, paradoxically, the reasoning of the Court in Bragg Communications suggests that it is only harm to the child that warrants judicial intervention and societal concern. Throughout the reasoning, the Court emphasized the serious risk of ongoing trauma and psychological harm for a child to have their private information, such as sexual photographs, exposed publicly.55 Indeed, what is structured in the analysis is a predominate concern about how breaching privacy may harm a child – but the value of rights vindication for any breach is not addressed at all.56
It matters when the language of rights shifts into a judicial weighing of suffering. The implication is that societal concern, and importantly judicial intervention, only arises where harm is palpable – and while preventing or mitigating harm is certainly in the public interest, this entirely displaces the values of “dignity, personal integrity and autonomy.” In marked contrast, in the context of tort law, criminal law and constitutional law, privacy is considered a right and is actionable without proof of damages.57 It is the breach of privacy that in and of itself is an undue entrenchment against human dignity and autonomy. A breach of privacy is wrongful absent consideration of “psychological harm” or other manifestations of suffering that result from such a breach. By protecting privacy irrespective of harm, the principle of human dignity is better protected.
Fixating on harm, without consideration of rights vindication, also risks tacit dehumanization. To illustrate, I want to highlight how the best interests of the child test was invoked by the courts of British Columbia in AB v CD. AB is a transgender boy who was seeking gender-affirming medical care and treatment including hormone treatment, whose father, CD, sought a court order against this treatment. CD also wrote numerous online comments detailing AB’s private affairs related to his gender.58 At the heart of this case was AB’s dignity and ability to affirm who he is as a person. Yet this is not reflected in the assessments of AB’s “best interests” by the trial and appeal courts of BC. In discussing AB’s “best interests” to have access to gender affirming care, the BC Supreme Court almost exclusively emphasized the “serious risk of harm” that delay and denial of gender-affirming care poses to AB, namely his risk of suicidality and mental health disrepair.59 This was upheld on appeal, with deference and limited discussion.60 Analysis of harm entirely displaced meaningful discussion of AB’s rights, including his right to express his gender, his self-fulfillment, his dignity, and even his personhood.61 I do not want to suggest that the appreciable and predicted harm AB would face is not relevant. In fact, it is highly cogent. However, I think it is concerning where this becomes the focal point of the “best interests” of trans children. It suggests that the “wellbeing” and “best interests” of trans youth, or perhaps even youth in general, only merit judicial contemplation or intervention at the point where there is a threat to life or health. This may risk promoting a harmful idea that trans rights, insofar as they are connecting to gender-identity, are only serious when a life is at stake. The fact that gender expression is pivotal to human flourishing is left unconsidered. I also would add that, for trans youth, this contemplation of “mental and physical harm” and “suicidality” as ultimate determinations of their “best interests” risks adopting transmedicalist logics. A transmedicalist approach assumes that being trans is primarily a health issue, and must be attended to as a medical matter. This suggests trans identity is merely “the medicinal behaviour of a sick person,” and fails to recognize that trans people without gender dysphoria, or other medical issues, exist.
Applying “Best Interests” in UR Pride
Much of my concern over the “best interests” standard and the over-fixation of “harm” comes to fruition in UR Pride. Privacy was clearly a legal interest at stake, and one that concerned the “best interests” of Saskatchewan’s transgender youth. The original legal brief of UR Pride’s counsel highlights this, noting that the “compelled disclosure” breaches the privacy interests of trans students, and in turn poses a serious breach to their security of the person.62 Counsel discussed “privacy” as a rights-interest most poignantly in relation to serious psychological harm that a breach of privacy would cause for transgender youth.63 “Privacy” was also discussed in relation to potential physical harm, where disclosure could lead to violence at home.64 This framing of privacy was a likely strategic litigation choice to frame the issue in the cognizable constitutional language of “security of the person” under section 7 of the Charter. Nonetheless, counsel discussed privacy interests both as a freestanding interest pertaining to the dignity of the person, and as an interest related to the security of the person based off of the predictable harm.65
Privacy was not assessed in this way by the Saskatchewan Court of King’s Bench in their reasons. In fact, privacy was not discussed at all. The “interests” of trans youth were only discussed in relation to the “irreparable harm” they faced – as evaluated under the interlocutory injunction test – where the Court cited and highlighted expert evidence over the lack of support at home many trans youth face, the risk of violence and abuse, the resulting psychological impact, and the risk of suicidality.66 Expert testimony before the Court noted that disclosure is a strategic choice for trans youth that is foundationally connected to how they discover and explore their gender identity, that most transgender youth are capable of making safety assessments, and weigh the risks of disclosure to parents.67 This would make it apparent that privacy – being a right to direct intimate information around oneself – matters. While the predictable harm to trans youth was a required, and prominent, assessment in the determination of an interim injunction, Justice Megaw, for the court, made a judicial choice to discuss calculable harm to trans children to the exclusion of vested rights interests like privacy, dignity, and self-determination.
The best interests standard failed to vindicate rights here. Best interests directly came into play in Justice Megaw’s analysis. He noted that counsel for Saskatchewan neglected to discuss how their policy, which they claimed was intended to encourage necessary parental participation in their child’s gender discovery, was in the “best interests” of trans youth – particularly noting the serious concerns of harmful impact.68 As warned against earlier, “best interests” was evaluated on a basis of harm or harm prevention alone, and the promotion of values like dignity and autonomy through rights vindication was absent.
3. Parental Rights as a Corollary: Failing to Determine Children’s Rights vis-à-vis Their Parents
It is inevitable that school staff will learn personal information about minor students, especially teenagers.69 The question that then arises is how school officials should respond, as a dichotomy of rights interests emerges: the right of the child to privacy, and the rightful interest of a parent to be informed. Should the school officials refrain from disclosing intimate and private information about a student to their parents, then they protect that student’s privacy concerns – however they would then risk undermining the full capacity of the parents to direct their child’s development.70 Determining the scope of children’s rights, and especially a right to privacy, is necessarily balanced and in tension with the rights of parents.71 To fully delineate and understand the right of one requires deliberation of the other.72
The exact nature and scope of parental rights in law is ambiguous. Florence Ashley provides a critical distinction between how constitutionally recognized parental rights may be characterized: “parental authority” versus “parental entitlement.”73 Rights under “parental authority” function off the presumption that parents are generally better equipped than the state to make decisions in the best interests of their child, and so parental rights are “bound up with and limited by children’s best interests.”74 Where parents fail to act in their child’s “best interests,” then the state may be justified in intervening.75 “Parental entitlement” on the other hand, sees parental rights as a freestanding right to control and direct their children’s affairs, regardless of whether that is in the child’s best interests.76 In many ways, entitlement risks blending the child and the parent as a singular legal person or entity, with the parent’s rights and interests as default. Parental entitlement is not unqualified and is subject to law – for example Canadian law imposes a duty on parents to generally refrain from harming their child.77 But parental entitlement, unlike authority, is not directly limited by the rights and interests of the child, which may matter at law, but are independent from entitlement.78
The distinction between entitlement and authority, as Ashley highlights, is blurred in the course of jurisprudence, with “unnoticed slippages and shifts” between the two as parental rights are often discussed in the abstract.79 This may, in part, be owed to the fact that neither conception requires diverging from traditional patriarchal legal norms that saw children only as legal persons upon coming of age, and until then they only have rights and interests as represented by the family unit or head-of-family.80 Moreover, it must be emphasized that both “parental authority” and “parental entitlement” fundamentally concern parental relations with the state – they ultimately ask what are the appropriate limitations of state intervention on parents in their capacity as parents. The direct relationship between the child and their parents are secondary.
To fully understand the dynamic relationship between a blended parental authority/ entitlement and children’s rights, I draw from the United States context. Compared to Canada, the US has had a long jurisprudential history discussing parental rights, since the landmark case Meyer v Nebraska in 1923 found parents have a robust constitutional right to “guide the upbringing of [their] child” under the 14th Amendment Due Process Clause81 This right, known as the “Meyer-Pierce Right”, is foundationally constructed and discussed in terms of parental entitlement, absenting consideration of a child’s best interest altogether.82 The Meyer-Pierce right, as warned by children’s rights advocates, posits a “right of control” that harkens back to an idea of children as the legal property of their parents, used by parents to preserve and express their own status, class, and ideals.83
Even though parental rights are constitutionally recognized as “entitlement” in the United States, in relation to children’s rights they often circulate between parental entitlement and authority logics. US Federal and Circuit Appeal Courts have found, on one hand, that disclosure to a parent of a student’s sexuality or other private information can be a part of a student’s “due process” if that disclosure is related to any disciplinary action against the student, taking a parental authority approach that assumes parents act in their children’s “best interests.”84 Simultaneously, however, US courts use a parental entitlement logic, finding that revealing the sexuality of a student to their mother, as opposed to the world writ large, is not a breach of their privacy – taking for granted that children may be istinct legal entities from their parents with interests independent and separate from them.85 As a whole, then, the subject and scope of parental rights, as well as children’s privacy as a corollary, is ambiguous and without grounded substance.
Indeed, US courts have failed to delineate the relationship between parental rights with children’s rights, whether they conceived parental rights as Meyer-Pierce or otherwise. In this vacuum, US courts have justified legal analysis entirely on the basis of parental rights’ analysis, without any contemplation of children’s rights or interests. This is even the case where protecting the privacy of trans youth, and their “best interests” against harm, is on the line. In Jane Doe v Manchester School District, the New Hampshire Supreme Court was asked to decide on the constitutionality of a school board policy that required teachers and other school personnel to not disclose information about a student’s transgender status or gender nonconforming presentation, including to parents, unless the student has given permission or there is a legal requirement to disclose.86 Essentially, the policy in question is a non-disclosure law. The plaintiff argued that this district policy violated her “constitutional parenting rights” as a fundamental liberty interest protected by Part 1, Article 2 of the State Constitution of New Hampshire.87 While not directly applicable as precedent, the New Hampshire court looked at U.S. Federal Court decisions as guidance, noting that parental rights are not unqualified.88 Using Federal Court precedents, the Court found that the district policy was constitutional on the grounds that “parental entitlement” remained in place – even with non-disclosure, a parent still has control over what kind of educational institution their child goes to, with whom their child socializes, what their children do in their free time, and parents are even still free to determine their child’s gender identity through surveillance, discussions with non-school personnel or other means.89 This in certain respects is disquieting, even if the Court upheld a trans-affirming school district policy. Privacy was a matter of interest before the Court. The American Civil Liberties Union, acting as an amicus brief, plead before the Court that the privacy rights of trans youth protected in this policy are important, and that they are intrinsically connected to ensuring the safety and wellbeing of youth.90 Instead of recognizing or discussing any notion of a child’s right to privacy fromtheir parent, or public policy reasons for why this non-disclosure law was enacted, the Court conducted an analysis that solely focused on stressing parental control and whether it has ultimately been displaced. Privacy was never discussed as a legal matter or interest in analysis, nor were the rights of children ever judicially contemplated.
Canada diverges from the US by invoking more express language of parental authority. As early as B(R) in 1995, the Supreme Court determined parental rights stem in part from a presumption that parents act in their children’s best interests, and state intervention is warranted where this presumption is overcome.91 However, like the US, Canada fails to delineate the boundaries of parental and children’s rights. Moreover, despite using the formal language of authority, judicial analysis of parental rights blends and seamlessly shifts between entitlement and authority logics. So while a case on children’s privacy from their parents has yet to be decided on in Canada, as these cases have arisen in the US, the danger of fixating on amorphous parental rights to the displacement of any meaningful contemplation of children’s privacy rights hangs heavy.
This is particularly the case noting that Canadian courts have been reluctant to discuss the interwoven bridges and tensions between parenting rights and children’s rights. Instead, Canadian courts have often collapsed parental and child interests as one and the same or otherwise failed to discuss children’s distinct independent rights byshifting to a broader analysis of “parental/ family rights.” This structurally mirrors a logic of parental entitlement, by failing to recognize a child as a distinct legal person from their parents, presuming them together as one unit with the parent as the default interest-holder. For example, in the Supreme Court of Canada’s “spanking case,” the majority proposed that the “autonomy of families” – namely of parents – is indistinguishable from children’s rights to bodily integrity.92 The majority thus declined to distinguish between children’s rights versus those of their parents, or how they might be balanced, reconciled or accommodated. The majority framed their reasoning not in terms of parental rights, but specifically on children’s rights and children’s “best interests,”93 justified using parental authority logics that parents act in children’s best interests. In melding authority and entitlement, the Supreme Court erased children’s distinct interests altogether from the analysis, by forwarding that parents both presumptively act in their children’s best interests and that children’s legal personhood and interests are determinable as that of their parents via the family unit. This parallels how US courts have discussed children’s privacy in relation to an indistinguishable parental authority/entitlement.
To cap off, I want to discuss parental rights in relation to children as contemplated in UR Pride. Justice Megaw was directly confronted with competing rights interests: that of trans youth to privacy and gender self-expression, versus that of parents to be involved in their child’s development.94 Megaw J. dismissed Saskatchewan’s policy-rationale based on parent’s rights, taking an implied parental authority approach by noting the province has not weighed or advanced why parental involvement through compelled disclosure could possibly be in the child’s “best interests.”95 While parental rights are implied to be limited by the child’s “best interest,” the exact scope of parental rights is left without meaningful guidance. While Justice Megaw does not directly fall into the slippage between parental entitlement/authority, by disengaging with any weighing or consideration of parental interests and their limitations, there is no comment on the corollary of children’s fundamental rights fromparents – including privacy. While he arguably made a positive finding granting the injunction to protect trans youth, this is done solely in reference to preventing harm, like mental strife and potential abuse at home, with no attention to safeguarding trans children’s fundamental dignities like privacy.
Conclusion
To end, I ask you, the reader, “when trans youth are under attack, what do we do?”
In order to affirm the privacy rights of trans youth, or even children more broadly, it is important we keep in mind the judicial logics and reasoning patterns that pose a barrier to the realization of clear and substantive privacy rights. Existing standards for children’s “best interests” are insufficient on their own to protect privacy. Under Canadian jurisprudence, often children’s privacy rights are contemplated only to the extent that a breach of privacy has alreadycaused, or poses predictable, harm to a child. This shifts judicial analysis away from rights affirmation, which prevents matters of dignity, autonomy, and human flourishing from being directly weighed when discussing legal matters pertaining to children.
Children’s privacy cannot be absolute and must necessarily be balanced with parent’s guardianship of children’s information as their “trustees.” As a result, the rights-interests of children and parents are in an inherent marriage, overlapping at times and in tension at others. When courts merge the language and logics of parental entitlement and authority, the result is that parental rights become amorphous, and their relationship to children’s rights is unclear. Moreover, disengagement from determining the scope of parental rights often means children’s corollary rights are left undetermined.
It is important we counter these logics and patterns. When trans youth are losing their autonomy to explore who they are – how and when to disclose their inner understanding of self – their existence as dignified persons is under threat. Privacy matters for trans youth. It is high time courts contemplate that directly.