Legal challenges are being prepared as several Canadian provinces begin to implement new pronoun policies and legal experts say some parts of these laws are more vulnerable than others.

The requirement of parental consent to name or pronoun changes in schools could very well be defeated in court, but the requirement to merely inform parents has a good chance of surviving a court challenge, legal experts say.

“In Saskatchewan, gender identity is recognized as a ground of discrimination,” says Joanna Baron, the executive director of the Canadian Constitution Foundation, who does not believe any policy requiring parental consent for gender identity or pronoun changes would be upheld. 

Public schools in Saskatchewan will be required to inform parents if their child changes their pronouns or gender identity while under the age of 16. The policy will further require the school to obtain parental consent to register those changes at the schools.

This week, progressive advocacy groups threatened legal action to challenge the policy in court, stating that it violated the Charter of Rights and Freedoms. On Thursday, the University of Regina’s Pride Centre, UR Pride, represented by the non-profit Egale Canada with the help of the law firm McCarthy Tétrault LLP, officially filed legal action against the Saskatchewan government.

Baron believes similar lawsuits to the one threatened by UR Pride will not be going away anytime soon. 

“I think it is going to become common, as far as I understand Egale, which is an LGBTQ rights non-profit, they’re very animated on this issue, and obviously it’s a flash point,” says Baron. “So I think you’ll see a challenge even where it’s a milder version of policy.” 

The Saskatchewan government’s decision follows a similar one made by its counterpart in New Brunswick, which sparked a national debate on the role of parents in the decisions made by their children in public schools. 

While recent polling shows as much as 85 percent of all Canadians believe parents should be informed when their child makes those choices, fewer are inclined to agree that parental consent should also be required to authorize those changes.

Baron says that when Stephen Lecce, Ontario’s minister of education, came out in favour of a similar policy, he only stated that parents must be involved, and did not explicitly endorse any parental consent requirements. 

Marci Ien, the federal minister for women, gender equality, and youth says the policies in Saskatchewan and New Brunswick that require informing parents or obtaining their consent will put children in a “life or death” situation. However, Ien did not confirm that the federal government would join in any court challenges. 

Asher Honickman, a partner at Jordan Honickman Barristers in Toronto and co-founder of the Runnymede Society, is not surprised that UR Pride and others are suing the Saskatchewan government, despite the polling data indicating the public overwhelmingly agrees with parents being informed. He predicts that litigation will continue to be brought by advocacy groups, rather than the children who are allegedly harmed by the law.

“What’s interesting is that ordinarily the plaintiff or the applicant, in such litigation, would be the child because that’s the person who has the most direct interest in this,” says Honickman. “A child has to have what we call litigation guardian because the child can’t prosecute litigation on their own.” 

Honickman says that it is becoming very common for the courts to hear cases that look increasingly political, rather than legal, in their goals.  

While acknowledging that jurisprudence exists regarding parental rights and authority, Joanna Baron says it is often in a different context, such as parents objecting to their child’s blood transfusions in the case of Jehovah’s Witnesses. In 2017, a Quebec superior court ordered a 14-year-old Jehovah’s Witness with cancer to undergo a blood transfusion against her wishes. 

And while Marci Ien declined to comment on whether Ottawa sees a role for itself in any potential court challenges, the cabinet minister said the Liberal government is keeping an eye on what unfolds. 

“We’re watching closely as this develops,” Ien told the Canadian Press on Wednesday. “Obviously anything is possible, but I’m not going to comment on anything hypothetical at this time.”

Months into the lockdowns that quickly followed the outbreak of the COVID-19 pandemic, U.K. health minister Matt Hancock spoke for his counterparts across the world when he said he was tired of the “f—–g Sweden argument.”

As the rest of the world was imposing draconian lockdowns, Sweden was bucking the trend, imposing lighter restrictions and leaning towards recommendations and guidelines over laws.

Recently leaked WhatsApp messages revealed that Hancock even told his aides to bring him some easily digestible bullet points about “why Sweden is wrong” and the international press soon followed suit.

The New York Times described Sweden as a “pariah state” and other media organizations counted the “death toll” from the first wave of infections in the country. Politicians around the world, even then-U.S. president Donald Trump, warned about taking any advice from Swedish epidemiologists.

But with three years of distance from the early harrowing days of the pandemic and mountains of empirical data piling up, a new picture is starting to emerge. Some experts are arguing that Sweden had it right all along.

Adding up the numbers

A new report from the Cato Institute, a libertarian think tank, makes the case that Sweden has come out of the pandemic in better overall shape than almost all of Europe.

“One reason why Sweden got through the pandemic in a much better shape than many scholars, journalists, and politicians expected was that (these people) only thought in terms of strict government controls or business as usual. They failed to consider a third option: that people adapt voluntarily when they realize that lives are at stake,” writes Johan Norberg, the author of the Cato report.

A review of available data shows Sweden ranging from the middle of the pack to best in Europe on most indicators, and massively over-performing the dire predictions from experts predicting tens of thousands of deaths in Sweden during the first few months of the pandemic.

In terms of cumulative COVID-19 deaths, Sweden ended up in the middle of the pack in Europe with 2,322 COVID-19 deaths per million people.

That compares favourably to the United States and the United Kingdom, both of which suffered more than 3,300 deaths per million people, and unfavourably to other Nordic countries, which were all below 2,000 deaths per million people.

Those numbers are tough to compare because countries count these deaths differently. Norway, for example, only counted COVID-19 deaths if the virus was the primary cause of death. In Sweden, anyone who died while positive for COVID-19 was counted.

According to self-reported data on excess deaths, which count the number of deaths that occurred compared to a normal year and which is a better comparison, Sweden leads Europe with an excess death rate of 4.4 percent for the three-year period from 2020 to 2022.

Italy, which suffered from an early and traumatic wave of infections early in 2020 reported a three-year excess death of 12.3 percent. France’s rate was 9.2 percent, Germany’s was 8.6 percent, and Norway’s was 5 percent. The average rate in Europe was 11.1 percent.

Even among excess death calculations from other sources that use different time frames, the results are broadly similar, with the Nordic countries clustering at the bottom of the chart and Sweden among them.

The economy and schools stayed open

Sweden also bucked the global trends on education and the economy, which was one of the primary arguments used to support the country’s approach to the pandemic.

The Organisation for Economic Co-operation and Development reported that the global economy was nearly three percent smaller than expected in 2021, while the Eurozone was 2.1 percent smaller. In Sweden, where the economy is export dependent and vulnerable to global downturns, the economy was still 0.4 percent bigger than expected in 2021.

While North American schoolchildren suffered significant learning loss after enduring virtual education during waves of infections, a recent study found that Swedish children are on track when it comes to literacy metrics and concluded that “open schools benefitted Swedish primary school students.”

And while research has shown that American kids fell behind on their regular vaccinations when the focus in health care shifted to COVID-19 in 2020, the vaccination rate for Swedish children was actually up in 2020.

How did Sweden do it?

The question of how and why Sweden managed to buck the global trends on pandemic response has several answers.

Sweden’s early spike of infections resulted in a wave of critical press from around the world but, according to cumulative COVID-19 statistics, most countries that imposed harsh lockdowns seem to have only delayed those deaths.

Sweden’s excess death rate spiked in 2020, as the virus swept through nursing homes in the country. By 2022, the numbers had levelled out as the omicron variant of the virus blanketed the globe.

“The other countries managed to delay some deaths, but now, three years after, we end up at around the same place,” said Preben Aavitsland, a Norwegian epidemiologist.

Although some press reports suggested that Swedish decision-makers regretted the path the country took, it wasn’t actually the case.

“It’s not like that at all, we still think the strategy is good, but there are always improvements you can make, especially when you have the benefit of hindsight,” said Anders Tegnell, Sweden’s state epidemiologist, in response to these reports.

Tegnell said that, in retrospect, he would have done more to protect nursing homes and provide testing kits.

Norberg, the author of the Cato report, argued that Sweden’s unique division of power when it comes to governmental agencies may have been a key factor.

The directors-general of these agencies are independent of the government and have set terms, meaning they aren’t replaced when the government changes. It’s extremely rare for the government to replace the head of one of these agencies before the term ends.

It gives the agencies more power and, Norberg argues, it also gives the politicians an alibi if the advice is controversial.

Perhaps easier to explain is the intense backlash against the Swedish model, as illustrated by Hancock’s WhatsApp messages and angry outburst about the “f—–g Sweden argument.”

Aavitsland, the Norwegian epidemiologist, argues that Sweden’s method became a cudgel against politicians and health experts who were under intense pressure during a global crisis.

“Sweden became the contrast they did not want. Sweden undermined their mantra that we had no choice and forced them to explain to their citizens why they did what they did,” said Aavitsland.

“For these colleagues, it would have been better if everyone had done the same. They hid their own insecurities by lambasting Sweden.”