Dentons supports LEAF in landmark cases for transgender and non-binary youth

At the inaugural Canada Pride 2024 Queer Rights Summit, Morgan Camley, partner and leader of Dentons Canada’s Litigation and Dispute Resolution group in Vancouver, discussed the Firm’s involvement as counsel for the Women’s Legal Education and Action Fund (LEAF) in two significant and precedent-setting cases addressing the rights of transgender and non-binary youth in Canada.

LEAF, a national non-profit organization founded in 1985, works towards ensuring the law guarantees substantive equality for all women, girls, transgender and non-binary people. LEAF is the only national organization whose mandate is to use litigation to advance the equality rights of these groups, and has gained 39 years of experience protecting and promoting gender equality through litigation, law reform and public education.

LEAF's commitment to substantive equality in New Brunswick

In New Brunswick’s Court of King’s Bench, LEAF is intervening in litigation on the constitutionality of the government’s decision to revise self-identification provisions in school policy requiring youth to obtain parental consent for the use of their chosen names and/or pronouns in school. LEAF’s submissions intend to articulate the role of substantive equality as animating the court’s analysis of constitutionally protected rights. Substantive equality requires the court to look behind the façade of similarities and differences to the actual impact of an impugned law on the lives of those affected, taking full account of the social, political, economic and historical factors concerning the group. LEAF argues that in determining whether the policy reinforces, perpetuates or execrates disadvantages, the court must consider the prospect of family violence and other forms of abuse that could flow from the operation of the policy.

Challenging the notwithstanding clause in Saskatchewan

In Saskatchewan’s Court of Appeal, LEAF is intervening in litigation concerning the proper interpretation of section 33 of the Charter of Rights and Freedoms (Charter), also known as the notwithstanding clause. The root of this litigation is the provincial government’s amendment of the Education Act to add a provision requiring parental or guardian consent where a student under the age of 16 seeks to use their chosen name, gender or gender expression at school. According to the provision, absent parent or guardian consent, school personnel are not permitted to use the student’s chosen name and pronouns. In enacting this amendment, the provincial government invoked section 33 of the Charter, arguing that as a result, a court has no role in the matter and is unable to judicially consider the impacts of the law. 

In this case, LEAF is submitting that a purposive reading of the Charter recognizes that democratic accountability and substantive equality are core considerations in Charter interpretation and apply to and support all other provisions of the Charter. Where a community affected by the invocation of section 33 is non-voting or politically disenfranchised – such as non-voting transgender youth and children - access to the courts for declaratory relief must prevail. Access to the courts for non-voting and political disenfranchised communities is the only interpretation of section 33 that is in harmony with the core principles of democratic accountability and substantive equality, which are fundamental to Charter interpretation. LEAF intends to bring the experiences of the countries most marginalized communities to the forefront of the court’s analysis.

Transgender and non-binary communities, in particular youth and children, continue to face a devastating erosion of their rights across the world, including ongoing threats to their safety and security. Morgan Camley and team members Mélanie Power and Kay Scorer remain steadfast in their collective commitment to advocating for the rights of transgender and non-binary youth persons, both in and outside of the court room.