Province argues against school psychologist, teacher unions joining gender-identity suit
Unions want to argue policy could force them to breach students' rights, break their trust
The New Brunswick government wants to block the unions representing school psychologists, teachers and support staff from joining a lawsuit against the province's gender-identity policy for schools.
The Canadian Civil Liberties Association filed the lawsuit last fall. At issue is a policy that required school staff to get parental consent before they can use a student's chosen name and pronoun, if the student is under 16.
The civil liberties group argues the policy goes against the provincial education and human rights acts, and breaches students' charter rights.
The unions are three of nine organizations that have filed to become part of the case. They say they would be able to provide the perspective of school staff, who are required to follow the policy.
They say the policy could force them to breach children's rights by denying their request for a specific name or pronoun, and it also violates their freedom of expression.
Clarence Bennett, the lawyer representing the province, said this case is about the students' rights, not the rights of the staff. He said the unions have nothing to add to the case.
Joël Michaud spoke on behalf of the New Brunswick Union, representing school psychologists and social workers, as well as the New Brunswick Teachers' Federation. In an interview, he said union members are "caught in the middle" of this policy, and whatever that's decided in court would affect them. That's why they want a seat at the table."
"The issue will be debated. All we want is the opportunity to be there and to contribute to this debate."
Bennett argued the unions have filed grievances, and that's how they can have their voices heard. Michaud said that typically, issues would be resolved through the grievance process.
But in this case, the lawsuit is brought by someone who's not the employer or the union, so the unions' voice won't be represented unless they intervene.
Glen Gallant, the lawyer for CUPE Local 2745, which represents educational and clerical support staff, said being a school staff member comes with "a level of trust," from the students, and the policy potentially requires that they break that trust.
'There's no urgency,' province's lawyer says
The civil liberties association has been waiting for documents related to the province's decision to change Policy 713, but Bennett said in court Monday that the province is not to blame for delays in the case.
He said even though the association filed the lawsuit in September, they were "only granted public interest standing" in December. He said the association was also asking for a lot of records.
He said there's another lawsuit about the same policy filed in Moncton recently. He said the province was given a deadline in that other lawsuit, which is taking up resources.
"There's absolutely no urgency" to the civil liberties case, especially since the policy has been in place and the school year is almost over, he said.
During the hearing Monday, Justice Richard Petrie said he does see urgency.
"I see this as a priority matter," he said.
At the end of the hearing, he said he will do his best to decide on all intervener applications by May 6.
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Minister silent on next step in battle with education council
Bill Hogan warned district it has no authority or budget to fight Policy 713 changes in court
New Brunswick's education minister is staying silent for now about his next move in an increasingly acrimonious dispute with one of the province's school districts.
The Anglophone East district is challenging Bill Hogan in court, a legal battle that Hogan claims it doesn't have the authority to wage.
This week, Hogan vowed to take "further action" against the district, which he said in a letter on Monday is spending money on the court case "improperly and without the legal authority to do so."
Harry Doyle, the district education council chair, responded that Hogan has "no authority" to interfere with the district's decision to sue.
"The DEC is mandated to protect the students in its care," Doyle wrote in an April 16 letter.
"The current litigation is to ensure that students are being cared for in a manner conforming to the Charter and provincial statutes."
Hogan's office said it could not arrange an interview with the minister Thursday or say what he may do next.
Harry
Doyle, chair of the Anglophone East district education council, says
Hogan doesn't have the authority to interfere with which version of the
713 policy the district uses. (Shane Magee/CBC)
During a hearing on the case Wednesday, the district's lawyer Perri Ravon said Hogan's correspondence "indicates a determination not only to have Policy 713 applied as soon as possible, but a determination to prevent Anglophone East from challenging it in court."
Last year's changes to the policy require parents' consent if their children under 16 want to change the names or pronouns they use in school to reflect their sexual orientation or gender identity.
The Anglophone East council says the requirement violates the Charter of Rights and Freedoms, the provincial Human Rights Act and the Education Act, and is asking the court to block its implementation.
Last year, the council adopted a modified version of the provincial policy, which it says Hogan has threatened to "quash."
In an April 11 letter, Doyle also accused Hogan of threatening to go to court to dissolve the council if it did not fall in line.
The case that was back in court this week includes an application for an injunction to block Hogan from doing that.
Court of King's Bench Chief Justice Tracey DeWare set June 18-19 to hear arguments on that injunction application and the one that would block Hogan from quashing its version of the policy.
Last
year, the province changed Policy 713 to require parents be notified if
their child under 16 informally changes names or pronouns. Anglophone
East says this is a Charter violation. (Isabelle Arseneau/Radio-Canada)
The minister argued in an earlier April 5 letter that district education councils can spend money "for educational purposes only" and not on a lawsuit.
He demanded the district hand over information about how much it was spending in the Policy 713 case.
The council responded April 11 by quoting the Education Act, which allows a council "to sue and be sued." It argued the expense is legitimate because the treatment of vulnerable 2SLGBTQ+ students is part of the "operation of" the school district.
The province's Policy 713 changes "force Anglophone East to participate in practices that will further disempower and harm its more vulnerable members rather than contribute to their success and enhance the vitality of the community," the April 11 DEC letter said.
Hogan's April 15 response pointed out the Education Act also says a district education council "shall provide" a minister with any information he or she "considers necessary" and said the district's 2024-25 budget had no funding for the legal challenge.
It also warned that if the council didn't explain where it was getting the money for the case by 5 p.m. on Tuesday, "I will be taking further action." The letter warned that council members may be held personally liable.
Doyle's reply the next day pointed out that all council spending is posted daily to Oracle, an internal financial tracking system, which the department has access to.
"The DEC does not understand why the Minister is asking the DEC to provide information, on such a short deadline, that is already available to the department," Doyle wrote, adding that the money is from the district's regular operating budget.
Until last December, provincial policy allowed the government to pay for a district's hiring of lawyers for legal cases.
But that policy was changed to say that if a district and the province are at odds in a legal dispute, the province will provide "no further legal or financial support" for the case.
The district's case is one of two now before the courts challenging the changes to Policy 713.
Last fall in the legislature, Hogan said it was "inappropriate" to speculate about how the court might rule in the case but said he believed the government was "on the right side of this question, we're on the right side of this issue and the court will rule in our favour."
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Gender-identity policy lawsuit contends with missing documents, scheduling concerns
Court heard from 3 of 9 applicants who want to make arguments in the case
Seven months after the Canadian Civil Liberties Association sued New Brunswick over its gender identity policy, the province finally handed over the documents required to start the court process in earnest.
That delay, chronic scheduling concerns in the province's courts and an unusual number of organizations asking to intervene in the case, mean the outcome of the lawsuit is likely far in the future.
Last year, Education Minister Bill Hogan changed education Policy 713, adding a requirement for parental consent before school staff can use a child's chosen name and pronoun. The rule applies to students under 16 and to all uses of students' pronouns, whether verbal or official. The previous policy only required parental consent for changes to official records, such as report cards.
The civil liberties association sued the province in September, claiming the policy is illegal and unconstitutional. The association says this policy takes away students' "autonomy over decisions of fundamental personal importance." It alleges the policy is against the Education Act, the New Brunswick Human Rights Act and unreasonably limits a child's right to self expression and safety.
Lawyers
handed over two boxes of documents Thursday, containing the record of
everything Minister of Education Bill Hogan relied on when deciding how
to change Policy 713 last year. (Hadeel Ibrahim/CBC)
But before lawyers can argue these issues, the province has to hand over everything Hogan relied on when creating the new policy. The two boxes of documents exchanged hands Thursday afternoon in Fredericton, but not before their months-long absence caused concern in court.
Justice Richard Petrie heard three of the nine intervener applications filed by different advocacy organizations and 2SLGBTQ+ service providers on Thursday.
The issue of the missing records was often referred to by the judge, the association's lawyer and the interveners.
Petrie said it's difficult to decide which interveners actually have something to add and which don't, when he doesn't know what evidence is coming from the province or what the civil liberties association has in reply.
The province did not say why the document release was delayed.
Sheree Conlon, the lawyer representing the civil liberties association, said in an interview Thursday that the long wait for documents is not typical in her experience. She said everyone has to see those documents first, before deciding what kinds of arguments and evidence they need to present.
"It informs the backdrop for why the government made the decision that it did," she said. "And that informs the response of all, not just the [Canadian Civil Liberties Association], but the other interveners who want to lead evidence as well."
Conlon said the association will need two weeks to review the documents and decide whether it believes the record is fully complete or if it needs to ask for more information. Once that issue is settled, lawyers would be closer to arguing whether Hogan made the correct decision by creating the controversial policy.
The judge heard from the lawyer representing local front-line 2SLGBTQ+ organizations. Ontario-based Egale Canada and local advocacy groups Alter Acadie, Chroma N.B. and Imprint Youth want to be added to the case to represent the people directly affected by the policy.
The court also heard from a lawyer representing two advocacy organizations he described as "peer support groups" for parents who believe their children's transition has made their mental health worse. Our Duty Canada and the Gender Dysphoria Alliance provide a perspective of parents who believe not requiring consent is harmful, the lawyer said.
A lawyer representing the Wabanaki Two Spirit Alliance and Equality N.B. made arguments about how the policy affects Indigenous people specifically and how the "parental rights" movement is tied to the religious right in the United States.
Petrie is scheduled to hear arguments from the three unions representing teachers, school psychologists and student support workers on Monday. He said he will be reserving his decision about whether to allow any of these groups to intervene until a later date.
At the end of the hearing, he emphasized the challenge New Brunswick courts have been experiencing, saying he and the administrative staff will do their best to schedule other hearings as quickly as possible.
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Surprise Surprise Surprise
Judge sets dates for next steps in school district Policy 713 case
Anglophone East School District wants to block minister from revoking district gender-identity policy
A court hearing will take place in June to decide whether to prevent the New Brunswick government from dissolving a school district board over a gender identity policy.
"We do have to move quickly here," Court of King's Bench Chief Justice Tracey DeWare said Wednesday while setting timelines for the next steps in the case.
Last month, Anglophone East School District sought an injunction to prevent Education Minister Bill Hogan from revoking the district's policy.
Hogan, the district alleges, had threatened to dissolve the council overseeing schools in the Moncton region if it didn't comply with his demand by the end of March. The Education Act requires Hogan to ask a judge to approve dissolution.
The district wants a judge to temporarily prevent revoking of its policy and dissolution ahead of a broader court challenge of Hogan's changes last year to Policy 713.
The changes to the provincial gender-identity policy include making it mandatory for parental consent before school staff can use a chosen name and pronoun for children under 16.
Anglophone East's injunction request said it intends to argue that mandatory parental consent requirements go against the Charter of Rights and Freedoms, the Constitution, the provincial Human Rights Act and the Education Act.
The district's case will be the second legal challenge to the policy change. A separate case launched last year by the Canadian Civil Liberties Association returns to court in Fredericton on Thursday.
Lawyers for the province and Anglophone East appeared in court Wednesday by phone as DeWare scheduled the next steps in the district's case.
Province wants case tossed
Perri Ravon, a lawyer representing Anglophone East, argued for a judge to rule before the end of the school year. Ravon said allowing the provincial policy to apply, instead of the district's, would cause harm to students.
"The minister appears to be determined to have the policy applied as soon as possible," Ravon said.
Clarence Bennett, a lawyer representing the province, said the policy changes aren't new, and that the district's proposed timeline would be impossible.
Bennett said once the district files its broader challenge of Policy 713, the province will seek to have the case tossed.
"We will file a motion to have this thing dismissed in its entirety," Bennett said.
Bennett said the province also plans to challenge the qualifications of witnesses the district plans to use as expert witnesses in its case.
DeWare, saying she wasn't taking a position on the merits of the district's case, ultimately agreed the court needed to hear the injunction request as quickly as possible. DeWare said the timeline was partly affected by the availability of judges.
The judge directed the district to file its broader constitutional case by April 30 and for the province to file its request to dismiss the case by May 15.
A hearing on the evidence the sides will use will take place May 21.
A hearing for the injunctions was set for June 18-19.
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Anglophone East council sues province over gender-identity policy
This is 2nd suit filed over N.B. policy mandating parental consent for pronoun changes for kids under 16
The Anglophone East district education council is asking a judge to step in after the minister of education allegedly threatened to dissolve the council if it didn't fall in line behind New Brunswick's revised gender-identity policy.
In its filing Tuesday, the Anglophone East council said it intends to argue that mandatory parental consent requirements for certain pronoun changes go against the Charter of Rights and Freedoms, the Constitution, the provincial Human Rights Act and the Education Act.
Until these issues are resolved, it is asking a judge to prevent the minister from removing the council's own gender-identity policy from its website, dissolving the council based on that policy, and enforcing the current Policy 713.
In June, Education Minister Bill Hogan changed Policy 713 on gender-identity to make it mandatory to get parental consent before school staff can use a child's chosen name and pronoun — if the child is under 16.
Education
Minister Bill Hogan has sent several letters demanding the Anglophone
East district education council remove its current policy on gender
identity, which he believes is inconsistent with the provincial policy. (Roger Cosman/CBC)
Parental consent was previously only mandatory for official name and pronoun changes on school documents. The new provincial policy now requires consent for any pronoun use in school, including verbally and in extracurricular activities.
The changes were called potentially dangerous and discriminatory by school psychologists, medical experts and child welfare advocates. Hogan and Premier Blaine Higgs said the changes were meant to protect parents' right to be involved.
This marks the second legal challenge to the policy. The Canadian Civil Liberties Association is already suing the New Brunswick government for the mandatory consent rule, and making similar arguments about children's rights to liberty, equality and freedom of expression.
The union representing school psychologists and social workers, and the teachers' union are both grieving the policy.
Some districts fell in line
District education councils are made up of elected members of the community who are usually parents. They have the power to make policies that are "consistent with, or more comprehensive than" Policy 713, according to the policy itself and the Education Act.
At the beginning of the current school year, many people still had questions about how such a policy would be enforced, and what would happen if a parent refused to give consent.
Three of the four anglophone district education councils created their own policies in response, providing some leeway for teachers to verbally use a child's chosen name while parental consent is sought.
Francophone councils created a unified policy that follows recommendations from the child and youth advocate and does not require parental consent for kids in Grade 6 and older.
Hogan took issue with those policies, saying they are not consistent with his own. He sent letters asking for "corrective action," to the three anglophone and all three francophone councils.
Anglophone South and West changed their policies, but Anglophone East refused. It's not clear what kind of conversations were had with the Francophone districts, but their own policies are still up on their websites.
In February, Hogan sent a letter to Anglophone East and said if the council doesn't change their policy by March 29, he will remove it from the website himself. The council responded that he does not have the power to do that and asked for a meeting.
The council's lawsuit also says that in a meeting between the ministers and council chairs, Hogan said he would be moving forward with the dissolution of councils not respecting his Policy 713.
The council's allegations have not been tested in court.
According to an Education Department spokesperson, officials met with the council on March 27. When asked, neither side provided any detail of what was discussed. Councillor Kristin Cavoukian said the tone was "polite" but she cannot provide any more detail.
Just six days later, the Anglophone East suit was filed.
No date has been set to hear this case.
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Tuesday 5 September 2023
Students face uncertainty as legal battle brews over N.B.'s gender-identity policy
Re: Students face uncertainty as legal battle brews over N.B.'s gender-identity policy
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https://www.cbc.ca/news/canada/new-brunswick/gender-identity-policy-713-pronouns-school-1.6954807
Students face uncertainty as legal battle brews over N.B.'s gender-identity policy
Province says mandatory to get parental consent before staff can use chosen names, pronouns for kids under 16
This
summer, thousands rallied against any changes to the policy that
guarantees minimum protections for LGBTQ students. The government made
several changes experts say could hurt children. (Radio-Canada) This summer, Education Minister Bill Hogan changed Policy 713 to make it mandatory to get parental consent before verbally using the chosen names and pronouns of students under 16. Official name and pronoun changes for that age group have always required parental consent, and that hasn't changed.
If those younger students aren't ready to speak to their parents, they are to be encouraged to see an "appropriate professional," the policy says, to help them come up with a plan to speak to their parents.
"If it is not in the best interest of the student, or could cause harm to them (physically or mentally), to talk with their parents, they will be encouraged to communicate with professionals for support," the policy says.
The policy does not say what should happen in the meantime — whether staff should continue to use a name and pronoun against the child's wishes, or honour the child's wishes while they work on connecting with their parents.
Hogan said staff must keep using the child's birth name and pronoun regardless of what the child says, unless parents consent.
He said if staff use a child's self-chosen name and a parent complains, they could be disciplined.
Peter Legacy, president of the teachers' association, previously said the policy "places teachers in an ethical dilemma: either they uphold a policy that dictates that they ignore advice of all professionals, or they risk sanctions from their employer."
On Tuesday, he said "teachers will always find a way to do what's right for their students, respects parents as partners and continue to make sure that our schools are welcoming and safe, inclusive spaces for everyone."
Anglophone South superintendent Derek O'Brien said "all of our learners will be respected."
"Our district certainly wants to make sure that we stay consistent with the policy. We'll stay consistent with the Education Act and the New Brunswick Human Rights Act and Canadian Charter of Rights and Freedoms," he said.
"We will follow the policy, but provide support in the creation of plans for students in our schools."
There are already children under 16 using a different name and pronoun in some schools, according to Kelly Lamrock, the province's child and youth advocate, and it's not clear if those children will have to revert to their birth names until their parents consent.
Additionally, Hogan said the policy does not apply to nicknames. He said if teachers aren't sure if the child is asking for a nickname or changing their gender, they "can always ask."
School psychiatrists and medical experts have said these changes could increase the risk of self harm. The New Brunswick Medical Society said not honouring a child's request for a specific name and pronoun may be harmful for normal exploration, could delay a child's development and get in the way of the child finding a clear identity.
"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.
Three groups now planning to sue
Joe Petersen, chair of Anglophone North education council, said the four anglophone councils have retained a lawyer to find out how they can sue the province over its changes to Policy 713.
Hogan and Premier Blaine Higgs said this change is to protect "parental rights" to be involved in their children's lives.
Hogan previously said it's a parent's right to force teachers and staff to use the pronoun the parent prefers.
"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.
The councils asked for funding from the province two months ago and got approval for $4,000 to get a legal opinion. Petersen said once they have that, they plan on applying for more funding to challenge "the changes that we think are wrong with Policy 713."
The Canadian Civil Liberties Association said it plans to file a lawsuit "soon."
LGBTQ advocate Gail Costello said she's also speaking to a lawyer to find out how best to challenge the policy.
DECs have alternate policies, but who will follow them?
The majority of the province's district education councils have passed policies they hope will undo the changes.
Anglophone South and East passed policies that say school personnel "shall use the chosen first name and pronoun(s) that students request. The chosen first name and pronoun(s) shall be used consistently in ways that the student has requested." Some francophone councils passed similar policies.
Education councils have the power to make policies that are "consistent with, or more comprehensive than, this provincial policy."
Hogan previously said those policies don't apply, and the provincial policy takes precedence.
However, the councils say their policies take precedence because they are more "comprehensive."
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With files from Information Morning Saint John
John Montgomery
Content deactivated
David Amos
SarahRose Werner
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