Lawsuit against N.B. gender policy coming 'soon,' emboldened CCLA says
Modifications to gender policy don't stop it from being 'harmful' to children and their rights, lawyer says
Earlier this summer, Education Minister Bill Hogan said he's making it mandatory for school staff to get parental consent before using a child's chosen name and pronoun, if the child is under 16 and is changing their name for gender-identity reasons.
On Wednesday, Hogan said the written policy will now apply even to verbal communication between students and staff in the classroom and during extracurricular activities.
He also added an exemption, so staff who are privately supporting a child in making a plan to speak to their parents can use their chosen pronoun without parental consent. He said these changes address "all" legal concerns raised by an advocate's report.
Harini Sivalingam of the Canadian Civil Liberties Association said that's not what her lawyers are thinking.
"I think the clarification … has actually increased the risks and the harms for students," she said.
She said making it clear that the policy could prevent staff from using a child's chosen name and pronoun, even verbally, makes this policy even more harmful and discriminatory.
She said this strengthens their argument that the policy violates children's human and Charter rights.
"I don't want to speculate on … how a court would see them. But we still feel that there are strong arguments to be made that this policy violates the rights of young people and students."
The association has previously said it will sue if the province doesn't change or revoke its stance. Sivalingam said lawyers are reviewing the newest changes to look at what legal options there are. She said they expect to file something "soon."
Hogan previously said he made the changes to preserve the rights of parents to be involved in their children's education. He said it's a parental right to prevent a child from using a certain name and pronoun, and it's also a parental right to able to prevent teachers from using that pronoun as well.
"If a parent doesn't want their child to be referred to as 'they,' [and] would prefer for them to be referred to as 'she' or 'he,' that's a parent's right," Hogan said on May 19.
Kelly Lamrock, New Brunswick's child and youth advocate, released a 90-page report last week detailing the legal pitfalls that come with the policy.
He said the province, in trying to maintain parental rights, will be violating children's rights.
He also said the policy ignores advice from medical experts and psychologists, and is discriminatory because it does not apply to name changes that don't involve gender identity.
'Doesn't address the core issue'
Hogan previously said his clarifications about verbal and official pronoun use, as well as allowing private use of the chosen pronoun, have addressed "all" of Lamrock's concerns
Wayne MacKay, professor emeritus at Dalhousie University specializing in human rights and education law, disagrees with that assessment.
Wayne
MacKay, professor emeritus at Schulich school of law at Dalhousie
University, says the most recent clarifications to Policy 713 don't
address the core issue of children's human and Charter rights. (Submitted by Wayne MacKay)
He told CBC News the legal risks of violating children's freedom of expression and rights to equality and accommodation remain.
"It really doesn't address the core issue, I think, of where to start in terms of recognizing the autonomous rights of the student to make their own choices in these things," he said.
Hogan says children should have a say at the age of 16, but Lamrock said there are several Supreme Court decisions and existing provincial laws that recognize that kids under 16 are able to make decisions that may be against their parents' wishes.
MacKay also said if anyone is thinking of suing the province, the advocate's report will likely be "exhibit A."
Sivalingam said the child and youth advocate's report confirmed the association's initial analysis of the policy.
Lamrock declined to comment this week, as he's still reviewing the most recent changes.
"At first reading, the advocate considers his recommendations to stand," a spokesperson said in a statement to CBC News.
The New Brunswick Medical Society previously said the province's changes go against national and international guidelines for children's wellbeing, and they could "increase the risk for psychological and physical harm to vulnerable children."
"Developmental experts stress the importance that any exploration of gender identity or sexual orientation are an integral part of healthy development, and that each child's rhythm should be respected," the society said in a statement.
The society said the policy may be harmful for normal exploration, could delay a child's development and get in the way of the child finding a clear identity, whether that's cisgender or transgender.
"The review was not based on scientific consultation or evidence-based data that is widely accepted by international medical expert opinion and research," the medical society said.
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Youth advocate reviewing Sask. policy requiring schools to get parental permission for pronoun changes
Province also banning outside groups from giving sex-ed presentations in schools
The Saskatchewan Advocate for Children and Youth says her office will review a new policy around pronoun use in the province's schools.
"I am deeply troubled by the impact this policy will have on the rights of children in Saskatchewan," said Lisa Broda in a statement issued Tuesday afternoon.
Education Minister Dustin Duncan announced earlier in the day that going forward, schools must now seek the permission of parents or guardians before allowing students under the age of 16 to change what the province refers to as their "preferred" name and pronouns.
For students 16 and over, parent/guardian consent is not required.
Broda said her office found out about the policy, titled Use of Preferred First Name and Pronouns by Students, through the media and had not been advised of the changes.
"Any new policy, legislation, law, or practice that may impact children and their rights compels me, under my legislative authority, to review and advise on such matters," she said.
Duncan said earlier Tuesday that his department would work with the Saskatchewan Advocate for Children and Youth if the office planned to look at the new policy.
Saskatchewan - Use of Preferred First Name and Pronouns by Students (PDF KB)
Saskatchewan - Use of Preferred First Name and Pronouns by Students (Text KB)CBC is not responsible for 3rd party content
At a news conference Tuesday, Duncan said there will be provisions in place for children wanting to change their name and pronouns who believe they are at risk of harm if their parents find out.
"My view is that the default position can't be 'how do we keep this from the kid's parents?' The default position needs to be, 'How do we provide that student with the support so that they are comfortable with their parents knowing a decision they want to make?'" he said.
The Morning Edition - Sask1 7:02 Duncan also announced that parents must be informed about the sexual health education curriculum offered in their children's schools and have the opportunity to opt out of their children receiving those lessons.
Duncan said the changes were driven by parents and that some schools had already begun considering policies.
"We certainly have heard from parents on this. Part of the changes today is to provide consistency across the school divisions," Duncan said.
When asked what experts the ministry had consulted when crafting the new policies, Duncan did not directly answer, saying that it would be consulting and researching as it went forward.
When pressed on what would happen if experts and evidence point to this being the wrong decision, Duncan replied that he did not, "know how involving parents more is wrong."
"We're not going to be using outside third-party organizations from out of province. We're going to be working with the school divisions. We'll be working with parents and other individuals that have an interest in this. So that that will be our our plan going forward," he said.
When asked whether she believed the new policy to be transphobic, Saskatchewan NDP Leader Carla Beck said it was. She called the decision "a new low" for the provincial government.
"Today what we saw from this government was calculated policy to solve their own political problems and a policy that will put already vulnerable kids at greater risk," Beck told media Tuesday afternoon.
Beck said the Opposition NDP supports parental involvement in schools, but that there is a difference between good communication and outing children.
Reaction pours in
Organizations began to weigh in on the changes within hours of the policy announcement.
The Canadian Civil Liberties Association (CCLA) swiftly condemned the policy shift, saying it made it more dangerous to be a LGBTQ student in the province.
"The new policy violates the rights and dignity of 2SLGBTQIA+ young people and is not in the best interest of students," the CCLA said in a statement.
"Shredding the rights of students is repulsive. Implementing policy that could result in increased harm to vulnerable youth is disgraceful."
The organization said it is ready to take the legal measures necessary to protect the rights of students in Saskatchewan.
The Saskatchewan Teachers' Federation described the policy as dangerous and driven by political ideology, saying it was a "massive overreach," in a news release Tuesday.
"[The government] states that they believe in safe and caring schools, and yet student safety and quality of education are being sacrificed to meet this government's political needs," said Saskatchewan Teachers' Federation president Samantha Becotte in the release.
The organization is calling on the province to reverse the change and consult with experts in the education sector.
Lori Johb, president of the Saskatchewan Federation of Labour, issued a simple statement on Tuesday.
"Outing children as part of a political gamble is violent and despicable," she said.
Duncan dismissed concerns that the changes he announced Tuesday were similar to changes to a gender-identity policy in New Brunswick that made it mandatory to deny a request from a child under 16 to use a specific name or pronoun unless parents consent.
That policy change was found to violate the New Brunswick Human Rights Act, the Education Act and children's charter rights by the province's child and youth advocate last week.
Changes to sexual education policy
Parents will have the opportunity to opt out of "all or part" of the Human Sexuality unit taught in the province's schools, according to a letter written by Duncan and distributed to all chairs of boards of education in the province.
Letter to Board Chairs on sexual education changes (PDF KB)
Letter to Board Chairs on sexual education changes (Text KB)CBC is not responsible for 3rd party content
All boards must also immediately pause any involvement with any third-party organization connected to sexual health education while the Ministry of Education undertakes a review of "educational resources to ensure alignment with curriculum outcomes."
Only teachers can present sexual education materials in the classroom, Duncan said.
The policy shift comes after an incident at Lumsden High School in June, where a Grade 9 student picked up graphic sex ed material left behind by Planned Parenthood after members of the organization presented to their health class.
Planned Parenthood Regina has said the material was not directly related to the presentation, but Duncan called for all schools in the province to suspend presentations by the organization.
A policy to solve 'political problems'
Policy changes were teased earlier this month by Premier Scott Moe in a post-byelection media conference.
He said the Lumsden-Morse byelection, which saw the Sask Party retain the seat but lose ground to the Saskatchewan United Party, sent a message that his government would be listening to loud and clear.
"A majority of voters in Lumsden-Morse still believe that it is the Saskatchewan Party that is the best option to address these concerns and we intend to do just that," Moe said on Aug. 11.
Beck said the NDP want the province to have comprehensive sexual education, especially with the province's high rates of teenage pregnancies. She believes it remains vital to continue providing that education.
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With files from Hadeel Ibrahim
Teachers can ask if student is changing gender or just wants a nickname, minister says
Teachers' union says policy puts them in 'ethical dilemma'
To follow New Brunswick's policy on gender identity, teachers may have to ask some students whether they're changing their names for gender identity reasons or are adopting nicknames — putting teachers in a difficult position, a critic of the policy says.
Education Minister Bill Hogan says it's mandatory to get parental consent for all name changes for kids under 16 if they're related to gender identity. He said this does not apply to nicknames, and teachers can ask when in doubt.
"I guess if it's close to their given name, then one wouldn't normally presuppose anything," Hogan said this week. "If it is a name, and they're wondering about it, the teacher can always ask."
But Kristin Cavoukian, a member of the Anglophone East district education council, said this puts the teacher in a "very difficult position," where they may have to question children about their gender.
"My name is Kristin. If I ask to be called, Krissy, no one would bat an eye," she said. "But if I ask to be called Kris, all of a sudden there's this looming question that requires the teacher to then ask the child whether this is a nickname because it's nickname or ... it's a gender issue."
When asked how teachers are expected to know the difference between a nickname and a name change related to gender identity, Hogan told reporters Wednesday after trying to clarify Policy 713: "What we're talking about is a name that's attached to a different gender than what they're identified with with their parents."
Cavoukian said New Brunswick schools have a diverse population, and it's not always easy to know what is a "female" and what is a "male" name, if it ever was.
When asked what teachers should do if 12-year-old Charlene wants to go by Charlie, a gender-neutral name, and shares no desire for pronoun changes, Hogan said teachers "can always ask."
Hogan made the comments Wednesday after he announced clarifications to Policy 713. The policy was introduced in 2020 to guarantee minimum support for LGBTQ students. In June, Hogan introduced changes, adding a parental consent requirement for kids under 16.
Kristin
Cavoukian, a member of the Anglophone East district education council,
said it's not clear how teachers are supposed to know what is just a
nickname, and what is a name change for gender-identity reasons that now
requires parental consent. (Shane Magee/CBC)
On Wednesday Hogan clarified that parental consent for students under 16 is required for both on-paper names and pronoun changes as well as verbal communication between students and staff in school and during extracurriculars. The 2020 policy required parental consent only for official changes on school records.
Experts have said having different rules when it's a nickname and when it's a gender-identity-related name change is discriminatory, but Hogan disagreed.
"I see this as important to have parent involvement in their child's education," he said.
'Ethical dilemma' for teachers
New Brunswick Teachers' Association president Peter Lagacy said the policy now puts teachers in a difficult professional and "ethical dilemma," by making them choose between following the advice of experts to respect a student's pronouns or risk sanctions from the province.
"It is unfortunate that Minister Hogan has dismissed the advice of medical professionals and legal experts," Lagacy said in a statement this week. "The policy should prevent any student from experiencing discrimination."
Lagacy said the association "implores the minister to reconsider his stance."
Maintaining parental involvement
Hogan previously said he made the changes to preserve the rights of parents to be involved in their children's education. He said it's a parental right to be able to prevent a child from using a certain name and pronoun, and it's also a parental right to be able to prevent teachers from using that pronoun as well.
"If a parent doesn't want their child to be referred to as 'they,' [and] would prefer for them to be referred to as 'she' or 'he,' that's a parent's right," Hogan said.
Child
and youth advocate Kelly Lamrock spoke with parents, students and
experts before compiling a 90-page report and a recommended policy on
gender-identity that he says doesn't break the law. (Radio-Canada)
Also announced Wednesday: kids are to be "encouraged" instead of "directed" to speak to "appropriate professionals" to come up with a plan to include their parents in the conversation. And "school professionals" can use the child's chosen pronouns and name without parental consent when supporting them one-on-one. The policy does not define who is considered a "school professional."
Last week Lamrock released a 90-page report after spending two months talking with parents, students, legal experts, psychologists and doctors. He found that the policy violates children's rights and several provincial laws.
Lamrock also said the policy is discriminatory because it forces staff to have different rules if a child is questioning their gender versus just going by a nickname.
Hogan said the changes address "all" of child and youth advocate Kelly Lamrock's legal concerns, but legal experts disagreed.
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