Teachers' union files grievance, asks to join lawsuit against gender identity policy
Teacher's federation lawyer says policy not clear, has possible affect on freedom of expression
This summer the province changed Policy 713 to require parental consent before teachers can use a child's chosen name and pronoun if they're under 16.
The Canadian Civil Liberties Association filed a legal challenge against this section of the policy, saying it violates children's Charter rights to equality, liberty and security.
In court documents, the New Brunswick Teachers' Federation said teachers have a stake in the suit because of the policy's possible impact on their freedom of speech.
Education
Minister Bill Hogan has spoken out against policies created by a number
of district education councils that allow teachers to respect all
students' pronouns if the student is 12 and over. (Roger Cosman/CBC)
Joël Michaud, the lawyer for the teachers' federation, said if the application is approved, they would be arguing for a clear policy that does not potentially breach children's rights.
"The arguments would be in favour of a legal policy that is reasonable," he said.
"The interest of the federation in this context is to ensure that teachers are not forced to take part in the breach of Charter rights, or of human rights, of these individuals."
Clarity needed
The federation represents about 8,000 teachers in both the anglophone and francophone sectors.
Michaud said the internal policy grievance filed with the province alleges Policy 713 is "unreasonable" and not clear. He also said with different education councils passing different policies, there is a lot of confusion about what could potentially get a teacher in trouble.
"We need clarity for teachers," he said. "I understand the minister has hinted at the fact that individuals or teachers could face discipline if they didn't follow 713. Well, some of the other district policies are arguably inconsistent with 713.
"So from the perspective of teacher, you're damned if you do and damned if you don't."
Harini
Sivalingam of the Canadian Civil Liberties Association alleges the
rights of students, teachers and other staff will all be violated by New
Brunswick's changes to Policy 713. (Hadeel Ibrahim/CBC)
The union representing school psychologists and social workers has filed a similar grievance against the changes to Policy 713.
Harini Sivalingam, the director of the equality program at the civil liberties association, said the lawsuit's outcome would affect teachers directly.
"The ability of educators to fulfil their professional obligation towards students in a safe, inclusive, welcoming environment ... is at stake," she said. "They definitely have an interest in the legal challenge."
In order for the lawsuit to go ahead, the civil liberties group must first get a judge to rule that it has standing to sue the province. A hearing about the issue is scheduled for Oct. 25 at the Burton courthouse.
The case has not yet been heard in court and the province has not filed a statement of defence.
Some districts stand firm
The original 2020 version of Policy 713, as well as the updated version, allow district education councils to "develop policies and procedures that are consistent with, or more comprehensive than, this provincial policy."
Since the changes were announced in June, almost all district education councils have passed their own policies. Some, such as Anglophone South, added a line that says teachers will respect all students' chosen names and pronouns — with no mention of parental consent.
Anglophone East and all three francophone districts passed multi-page policies that function as implementation guides, based on recommendations from child and youth advocate Kelly Lamrock. They allow teachers to respect all students' pronouns if the student is 12 and over.
Minister of Education Bill Hogan has previously spoken out against those policies.
Kristin
Cavoukian, a member of the Anglophone East district education council,
says the council passed a motion this week to tell the minister they're
making no changes to their policy. (Shane Magee/CBC)
In a statement, a department spokesperson said district education councils of the Anglophone East, South and West, as well as Francophone Northeast, Northwest and South received "corrective action" letters about their policies.
"The corrective action letters outline that the districts must comply with Policy 713," the statement said.
Anglophone South changed its policy and Hogan approved, the spokesperson said.
Kristin Cavoukian, a district education councillor with Anglophone East, said the council passed a motion Tuesday to tell the minister that they're making no changes to their policy.
"We simply disagree factually with the allegation that our motion contravenes the provincial policy," Cavoukin said.
Cavoukian said she's not sure what the minister can do to force them to change the policy, but said he may be able to dismantle the council. She said her council is not worried about that.
"None of us are concerned that that might happen to us, because ... the alternative is putting a situation into place that is dangerous to children," she said.
The spokesperson said the department will wait for an official response from Anglophone East before responding.
ABOUT THE AUTHOR
With files from Rachel Cave
"In order for the lawsuit to go ahead, the civil liberties group must first get a judge to rule that it has standing to sue the province. A hearing about the issue is scheduled for Oct. 25 at the Burton courthouse.
The case has not yet been heard in court and the province has not filed a statement of defence."
STATEMENT: Changes to Policy 713 unlawful, unconstitutional: Canadian Civil Liberties Association
Harini Sivalingam, lawyer and director of the Equality Program at the Canadian Civil Liberties Association made the following statement on Thursday, June 29, 2023 at the Legislative Assembly of New Brunswick:
Hello, and thank you for joining us today.
We would like to begin by acknowledging that the land on which we gather is the traditional unceded territory of the Maliseet and Mi’kmaq Peoples, covered by the “Treaties of Peace and Friendship”.
My name is Harini Sivalingam my pronouns are she/her/hers and I am the Equality Director for the Canadian Civil Liberties Association.
With me today are Nicki Lyons-MacFarlane, pronouns are they/them, from Imprint Youth Association and Mariah Darling (all pronouns), Education Coordinator for Chroma NB.
The Canadian Civil Liberties Association was founded in 1964. That was 59 years ago.
It was before New Brunswick had a human rights act and before many of the rights and freedoms we take for granted today were enshrined in the constitution and codified in human rights law
Back then, a pioneering group of advocates came together with a singular purpose: defending the rights and freedoms of all people in Canada.
Since 1964, the CCLA, has relied upon the work and support of members across the country, including here in New Brunswick
These past few weeks there has been a lot of attention on New Brunswick.
Attention from the New York Times and international media but also from human rights organizations here in Canada and from Canadians in every corner of the country.
We have been watching, in horror, as the Premier engaged in a biased and politically-motivated “review” of Policy 713. Policy 713 was originally designed by experts to protect and promote the well-being of trans and non-binary children in schools.
The catalyst for this “review” was a vocal minority of anti-2SLGBTQIA+ groups.
Rather than defend the rights of New Brunswick children, the Premier announced he would meddle with the very policies put in place to protect the rights of trans and non-binary children.
He capitulated to extremists.
And he forgot New Brunswick is not Florida: in New Brunswick we can say “gay” and we won’t tolerate attacks on children.
In Canada, people are compassionate and decent; Canadians care about rights and freedoms, about evidence-based policy, and about the well-being of children.
The government can pretend all it wants that these changes do not hurt children – but they do and they will.
The original Policy 713 — before the changes — did not exclude loving and supportive parents from receiving information about their children. But not all homes are loving and safe. For some trans and non-binary children, school is the only safe space where they can be themselves. The original Policy 713 recognized this reality and the importance of protecting the privacy, rights, and safety of vulnerable trans and non-binary children, while also including parents in important, official decision-making.
The research demonstrates: When trans children do not have people in their life that support them, they are at higher risk of suicidal ideation — and of suicide.
These are the facts.
Make no mistake, these recent changes to the Policy will make things worse and put kids in danger.
The changes to Policy 713 violate the rights and dignity of trans and non-binary children. They are unlawful and unconstitutional and should not stand.
And so, all eyes are on New Brunswick.
Canadians from across the country are watching.
And they are supporting you — trans and queer young people.
And you have support here at home in New Brunswick.
We have heard from countless New Brunswickers who have asked us to act.
The CCLA is heeding their call and we will not stand idly by and watch the New Brunswick government, or any other government in Canada for that matter, strip the rights of trans children and youth in this country.
And we know that New Brunswickers support freedom and rights.
The CCLA is currently fighting this same New Brunswick Government in court on another matter of basic rights and freedoms because this government refuses to fund abortion services as they do other healthcare services.
I want to take a moment to speak to all students who may be listening today. Those who are trans, non-binary, gender non-conforming, or questioning, and to all those who have compassion for their classmates.
The CCLA stands with you, New Brunswickers stand with you, your communities stand with you — you are not alone.
Rights organizations and groups from all over the country are thinking about you yesterday, today, and tomorrow.
We will not hesitate from using every legal avenue to fight for your rights and freedoms.
Pride month may be ending but our attention will not waver.
I am here on behalf of the CCLA in Fredericton today to deliver a final message to the Government of New Brunswick.
You refused to support reproductive freedom — and we took you to court.
You tried to have that lawsuit thrown out of court — but you failed.
You have a chance now, right now, to do the right thing for trans children, to change an unlawful and unconstitutional policy, and immediately suspend the revisions to Policy 713 before they come into place on July 1st.
You have a chance today to stop the harm and suffering that trans and non-binary children in this province will face if these policy changes come into effect.
There is no wrong time to do the right thing.
And rest assured that we will do everything in our power to protect trans kids and young people in New Brunswick and across Canada.
The CCLA is an independent, non-profit human rights organization committed to defending the rights, dignity, safety, and freedoms of all people in Canada.
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