Written by Professor Sean Tucker, Faculty of Business Administration, University of Regina
In 2021, the Regina Public Schools’ (RPS) Gender and Sexual Diversity Advisory Committee began months of research and consultation that eventually led to the adoption of a new policy known as “Students and Gender and Sexual Diversity” or Administrative Procedure 353 (AP353). The purpose of the policy “is to ensure that all programs, activities, and actions are free from harassment and discrimination based on real or perceived sexual orientation or gender identity.” (Section 1.4).
The policy states that RPS “believes that all students and families have the right to have:
– Their GSD confidentiality protected and respected;
– Self-identification and determination; and
– Their unique identities, families, cultures, and communities included, represented, valued, and respected within all aspects of the school environment.”
In May 2022, all RPS employees were required to participate in related professional development training. Today, the RPS website shows AP353 is “under review.”
Saskatchewan’s “Parental Rights” Directive
On August 23 2023, Saskatchewan’s Minister of Education announced three “Parental Inclusion and Consent Policies.” One requires each of the province’s 27 school divisions to implement a policy requiring parental/guardian consent when a student, who is under the age of 16, wishes to change their name or pronouns such that they are consistent with their gender identity and expression of their gender identity. The ministry has provided school divisions with a written sample administrative procedure, which requires teachers to inform their school principal when a student under 16 years of age wants to change their name or pronouns. If the child feels uncomfortable or unsafe approaching their parents for consent the directive instructs schools to provide counselling support. A student under 16 years of age who for whatever reason is unable to gain parental consent may not use their preferred name and pronouns at school. This runs counter to RPS’ AP353, which states: “Every student has a right to be addressed by a name and pronoun that corresponds to their gender identity” (Section 7.1).
The government’s policy and advocacy for “parental rights,” more generally, has been controversial. The Saskatchewan School Boards Association (SSBA) and Saskatchewan Teachers Federation (STF) have called for a “pause” in implementing the policy on the basis that it discriminates against trans students. The Saskatchewan Human Rights Commission noted it was not consulted by the ministry and, on September 8th, it took the unprecedented step of launching its own consultation. On September 15, Saskatchewan’s Advocate for Children and Youth, Dr. Lisa Broda, released a detailed 44-page review of the provincial directive noting: “The policy clearly discriminates against transgender children who are unable or unwilling to seek parental consent for the use of their preferred name and pronouns.” Broda also called for consultation. And finally, on September 19th, a Regina judge began hearing arguments for an injunction to halt implementation of the policy. Premier Moe has mused that he may invoke the Charter’s notwithstanding clause, if needed.
Implications for Teachers
Saskatchewan’s Premier and Minister of Education have stated publicly that they expect school divisions and teachers to follow the government’s directive. However, a number of public school teachers have taken to social media to question the policy on grounds that it will put students in potentially harmful situations either in coming out to their parents or being denied their right to express their gender identity in school. Regina teacher Nick Day told CBC Saskatchewan that he will “ignore [the policy] in his teaching practice” because it “hurts children.”
Is the Ministry’s Directive Enforceable?
It is important to keep in mind that in Saskatchewan and, indeed, in other provinces, school boards and divisions are the employer – not a ministry of education. However, divisions are primarily and directly funded by the Ministry of Education, and are directly accountable to the government.
Several Regina teachers I spoke with said they have been verbally directed by their school principal to follow the ministry’s wishes. It is interesting to consider whether the ministry’s directive is enforceable and to speculate on the enforceability of forthcoming school board policies.
In general, for an employer to discipline an employee for violating a unilaterally introduced policy, the policy must meet all six steps the “KVP Test” that is used in Canadian labour arbitration law to determine if a rule imposed unilaterally by the employer is enforceable. I briefly consider each step in the context of the current situation in Saskatchewan.
- Is the policy consistent with the collective agreement?
First, employers will need to demonstrate that their policy does not violate sections of the collective agreement with the STF (e.g., sections related to equity, inclusion, and human rights, for example) as well as the Saskatchewan Professional Teachers Regulatory Board’s Standards of Conduct. In her report, Saskatchewan’s Advocate for Children and Youth, noted: “…as it has already been determined that refusing to honour a mature student’s preferred name and pronouns in the absence of parental/guardian consent is discriminatory, necessitating this refusal may require teachers to violate their own professional standards of conduct, in addition to human rights law.” (p. 25)
- Is the policy reasonable?
An arbitrator will also assess the reasonableness of the policy. The ministry’s current policy does not consider the human rights of mature minors under the age of 16 nor does it apply to student nicknames. In the past, some arbitrators have cited blanket policies as unreasonable. The STF may also argue that the policy is politically motivated and, therefore, is unreasonable.
- Is the policy clear and unequivocal?
Court documents show the ministry developed the policy in nine days without consultation. Perhaps because of this, in her report, Dr. Broda, noted, for example, “the policy is ambiguous as to what information school staff are expected to report to the principal regarding the “gender expression needs” of a student…” such as student’s choice of clothing (p. 22).
- Has the policy been brought to the attention of the employee affected before the school division acted upon it?
At present, RPS principals have verbally communicated the government’s directive to teachers. Unlike AP 353, there has been no written communication or training. Given the legal uncertainty about the policy, and recently announced Saskatchewan Human Rights Commission consultation, some school divisions may choose to delay development and implementation of the policy.
- Has the employee concerned been notified that a breach of such policy could result in discharge if the rule was used as a foundation for discharge?
The ministry’s own sample policy does not describe disciplinary action for non-compliance. The teachers I spoke with say they have not been informed of potential consequences for disobeying the government’s directive.
- Has the rule been consistently enforced by the school division from the time it was introduced?
A number of teachers have stated publicly that they are not following the government’s policy directive and they have, to my knowledge, not been disciplined. But assuming a school division’s policy were to meet the aforementioned KVP criteria, will school principals consistently enforce the policy? It is interesting to consider the view of the Ontario Principals’ Council (OPC). In anticipation that the Government of Ontario might adopt a policy similar to Saskatchewan’s, the OPC issued a public statement on August 29th in support of the right to students to self-identify “even when parental consent is not given.” In light of this, it seems reasonable that some school administrators in Saskatchewan may quietly decide not to enforce the policy or make case-by-case determinations on compliance with the safety of students at the fore. Either way, the likelihood of consistent enforcement is uncertain.
The Road Ahead
In the months ahead, the courts will decide on the legality of Saskatchewan’s controversial new school policy. The policy and its implementation seem seriously flawed and, for the time being, it seems unlikely that a labour arbitrator would uphold disciplinary action for a related violation of the policy.