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Lawsuit against VSB trans policy will fail, findlay predicts

Schools need to consider other students’ discomfort, petitioner says

Three parents are asking the BC Supreme Court to overturn the Vancouver School Board’s new trans policy, saying it violates students’ and parents’ rights. The parents declined through their lawyer to speak to Xtra.  Credit: Thinkstock

Three Vancouver parents have filed a petition to the BC Supreme Court to overturn the Vancouver School Board’s (VSB) new policy on trans students. The petition argues that the new rules infringe on public morality, students’ right to use a washroom with only members of their own sex, and parents’ right to be informed of their children’s behaviour.

The petitioners have so far stayed silent and declined through their lawyer to speak to Xtra. While the press release announcing the lawsuit was published through the BC Parents and Teachers for Life website, a representative said the organization is not directly connected to the suit. All that is known about the appellants is that they are parents of school-age children in Vancouver and that their names — and the names on almost all the nearly 200 affidavits filed along with the petition — are Mandarin Chinese.

The petition asks the court to overturn the VSB policy on sexual orientation and gender identity and declare the policy unconstitutional or at least return the policy to the board for further debate.

But does the petition have any legal merit?

According to the petition, the parents are making two main arguments: that the VSB rules are so vague that nearly any student could use any washroom of their choice, even if it made other students uncomfortable, and that the policy of respecting a child’s privacy could unlawfully shut parents out of decisions about their child’s gender identity.

Amended in June, the VSB policy allows trans students to use washrooms compatible with their gender identity. The policy defines “trans” broadly, including those who choose to “socially transition by changing their name, clothing, hair, etc.” The petitioners say this means that a girl who plays football or a boy who wears a skirt could claim trans status and use a washroom of the other gender. This violates other students’ right to privacy, they say, as well as Vancouver building codes’ assurance of male and female segregated washrooms.

The petitioners’ lawyer, Masao Morinaga, tells Xtra the parents have no problem with trans students using washrooms appropriate to their gender identities; they just think the rules are too vague.

“We are dealing with a complex issue,” he says. “We feel that the intentions are good but that it’s going to cause a lot of confusion.”

Morinaga leans on a 2012 Ontario Human Rights Tribunal case, Vanderputten v Seydaco Packaging Corp, which decided in favour of a trans woman fired from her job. Washroom use was not at issue in the case, but the adjudicator mentions that trans people are not necessarily guaranteed exactly the same treatment as other people with their lived gender and that washroom issues are complex and require a balancing of different rights.

Morinaga says that precedent shows that the discomfort of other students should have been taken into account when deciding on washroom policy.

Morinaga also says the parents feel they have the right to know about something as important in their children’s lives as gender identity. The petition says the parents love their children and would act in their best interest no matter their sexual orientation or gender identity. A policy that allows children to keep secrets from their parents, Morinaga says, conflicts with the presumption that parents will act in favour of their children.

Lawyer and LGBT advocate barbara findlay thinks the lawsuit will fail. She says trans children’s right to privacy and to use washrooms fitting their gender identity are both well protected by law. “In my opinion, there is zero chance that this will result in a change to the VSB’s policy,” findlay says.

In terms of privacy, findlay says that keeping children’s private conversations confidential is already common practice in BC schools, for example conversations about sexual orientation or abuse. In the case of gender identity, which can be a sensitive topic between parents and children, findlay says the parent’s right to know is trumped by the child’s right to protection.

As for washroom use, findlay points to the 1998 case of Sheridan v Sanctuary Investments Ltd, a BC Human Rights Tribunal decision establishing that trans people must be allowed to use a washroom fitting their gender identity. In Sheridan, a trans woman filed a suit against a bar after she was told not to use the women’s washrooms. The tribunal decided that the bar’s action was discriminatory and that the bar had a duty to accommodate transsexual people. In an important parallel to the VSB case, the tribunal also decided that the discomfort or complaints of other patrons was no defence against a complaint of discrimination unless the bar could prove undue hardship, which it could not.

Findlay stresses that these decisions do not allow students to use any washroom at whim; they would only be able to use the washroom appropriate to their ongoing gender identity.

Josh Paterson, executive director of the BC Civil Liberties Association, says that he can’t comment on the legal merits of the case yet but it seems the petitioners have “misunderstood the nature of gender identity.”

“It’s the duty of the school board to protect students with trans gender identities, and this school board is doing that, for the first time,” he says. “We’re taking this case very seriously.”