Judge to rule by early June whether Policy 713 case can continue

A judge is expected to rule within the coming days whether a case launched by a Moncton-area school district, challenging a provincial gender identity policy, can continue.

Anglophone East School District and its education council chair, Harry Doyle, are suing Education Minister Bill Hogan and the provincial government, alleging Policy 713 violates the rights of students. 

The province argued during a hearing in Moncton on Tuesday that the district cannot bring the case to court for various reasons. 

"It's not that we're denying you the ability to get at what you want to get at, it's that you're in the wrong place," lawyer Clarence Bennett, representing the minister, said of the district's lawsuit. 

The district argued it can bring the case, and that options the province suggested wouldn't get at the broader issue of whether the policy violates students' rights.

"I appreciate we need an answer on this as soon as possible," Court of King's Bench Chief Justice Tracey DeWare said after several hours of legal arguments. 

DeWare told the lawyer she would try to issue a decision on or before June 3. 

It's a decision that could halt one of two constitutional challenges to Policy 713. The Canadian Civil Liberties Association has filed a case being heard in Fredericton.

At issue is a change to Policy 713 about self-identification, which says "Formal use of preferred first name for transgender or non-binary students under the age of 16 will require parental consent."

The district education council last year adopted a policy to implement 713, which says "school personnel shall respect the direction of the student in regard to the name and pronouns they wish to be called in daily interactions with school personnel and other students."

Hogan has told Anglophone East to revoke its policy, a step under the Education Act called a request for corrective action.  

The district sought injunctions to prevent the minister from revoking the policy and from seeking to dissolve the education council. 

While June hearing dates were set for those injunctions, the minister revoked the policy on April 22. The education council then passed a nearly identical version.

The Education Act says that a corrective action can be subject to judicial review, which Bennett argued would be the way the district should have proceeded. 

Perri Ravon, a lawyer representing the district, told DeWare that wasn't an option when the initial filing in the case was made at the start of April because the corrective action had yet to happen. 

"The scope of the case goes far beyond any corrective action," she said, saying the district's overall case is a challenge of Policy 713. 

Bennett also argued the Proceedings Against the Crown Act prevents the court from granting the injunctions the district is seeking. 

Ravon pointed the judge toward other cases that say otherwise. 

"You can seek injunctive relief in any constitutional challenge," Ravon said. 

Bennett also argued the case is flawed because the plaintiffs, the school district and education chair Harry Doyle aren't students and don't have a personal stake. 

"It has to be your own Charter rights at play," Bennett said. He said the district could have sought to get public interest standing in the civil liberties association case, but didn't.

The judge, as Ravon spoke, turned to points the province raised and asked several times whether the courts were the appropriate place.

"That's my concern — we're taking it into the court when the minister is still in his lane, if I can put it that way," DeWare said.

Ravon said the district wants injunctions to prevent any change in the status quo and potential harm to students, while the broader constitutional issue is addressed by the court.