New Ontario legislation that has replaced or amended acts affecting children, youth and families has recognized gender identity and gender expression as a protected area, a further example of how family law and the rights of children are evolving and may affect custody disputes and more.
The new Child, Youth and Family Services Act, 2017 received royal assent on June 1st, and expands previous legislation to include, among other things, “a child’s or young person’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression.”
“I think it represents an evolution in family law, and our understanding of family, and the various rights of family members,” says Russell Alexander of Russell Alexander Family Lawyers.
“Our concept of family seems to be always changing and evolving,” resulting in, for example, the expansion of property rights for common law couples and the right to legally marry for same-sex couples. “People may argue that these changes are at odds with parents’ rights,” Alexander told Legal Feeds, “but ultimately what the government wants to do is to protect children, to recognize they have rights, and that failure to accommodate their gender identification may result in harm to the child.”
Joanna Radbord, a partner at Martha McCarthy & Company LLP in Toronto who has acted as counsel for LGBTQ individuals and families in several high-profile cases, says the new legislation is consistent with the value placed on “the voice of the child.”
“It brings our child welfare laws in line with our recognition that we need to move towards equality with respect to gender identity and gender expression,” Radbord says.
Radbord acted as counsel to several LGBTQ families who challenged the constitutionality of Ontario’s Children’s Law Reform Act, which in 2015 the government agreed to amend. The All Parents Are Equal Act, 2016 came into force on Jan. 1, and recognized the legal status of all parents, no matter their sexual orientation or identity or how their children were conceived. The new legislation was considered a victory for LGBTQ families who, for example, had struggled to have both same-sex parents recognized as legal parents where only one of them was genetically related to the children.
“I do think that the culture is moving to the point of recognizing that it’s in a child’s best interest to respect [that] child’s gender identity and expression, and the legislative changes just recognize that that’s a requirement of equality,” says Radbord.
The new legislation may nonetheless provide challenges, Alexander suggests. In developing a legal framework, if there is a child protection proceeding by the Children’s Aid Society the court will need to provide some guidance in the legal analysis it applies in respect to the child’s right to have its gender identity or expression respected; the issue may also arise in custody cases where one parent respects a child’s self-identification and the other does not, he says.
“Each child, each family is different; but I think those parental views will be given less weight than the rights of the child. There will be some questions the court will need to grapple with, and provide lawyers and the public with some guidance.” For example, he asks, what age would be appropriate for a child to identify with a sex other than the one they were born to? “Lots of kids play dress up; it’s not necessarily identification.
“I think the court is going to need to provide some guidance regarding how we can recognize the child’s right to identify,” he says, taking into account their age and maturity. “Do we need to wait until puberty, or can it be at a younger age? They’re difficult questions lawyers aren't normally trained to deal with.”
Radbord says she “would hope now that judges are cognizant of their obligations in a way that respects Charter values.” These legislative changes have taken some time in coming, she says, and are consistent with changes made in other jurisdictions, including dispensing with “the binary system” of male-female indications on birth and other records for some individuals.
Radbord also cites cases of transgendered/transsexual parents who, in child visitation situations, have been required by court order to dress and otherwise present themselves in a manner appropriate to their birth sex, and notes that at one time it was recommended that children be told a trans parent had died rather than adapt to that parent’s new sexual identification.
“It’s great that we have these statutory changes, and when [Ontario Premier Kathleen Wynne] speaks she`s committed to equality,” says Radbord; “but in day-to-day life, and on the ground, it seems that we have a huge way to go to end discrimination against trans and non-binary people.”