Judge denies unions' request to join gender-identity lawsuit, allows all others
Unions have other avenues to resolve this 'workplace issue,' Justice Richard Petrie says
All organizations that asked to provide evidence in the lawsuit challenging New Brunswick's gender-identity policy have been approved, except the three unions representing school psychologists, teachers and school support staff.
The lawsuit was filed by the Canadian Civil Liberties Association to challenge the legality and constitutionality of changes to Policy 713.
The changes in question require parental consent before school staff can use a child's chosen name and pronoun, if they're under 16.
In a decision made Wednesday, Justice Richard Petrie allowed the following organizations to join the suit as interveners and add evidence, with conditions:
- Local LGBTQ-support organizations Chroma NB, Alter Acadie, Imprint Youth and national group Egale Canada.
- Our Duty Canada and the Gender Dysphoria Alliance, which are advocacy groups that represent parents whose children are "captured by gender ideation," and support the parental consent rule.
- The Wabanaki Two-Spirit Alliance and Equality New Brunswick, organizations that represent the interests of Indigenous two-spirit people.
The judge heard from these three unions last week and denied their request to join the suit:
- The New Brunswick Union of Public and Private Employees representing school psychologists and social workers.
- The New Brunswick Teachers' Federation.
- The Canadian Union of Public Employees, Local 2745 representing school support staff.
In his decision, Petrie said he is denying the unions' request to join the lawsuit partly because for staff, this is a "workplace issue."
The unions said they want to argue whether the policy "forces" their members to violate the students' Charter rights, and also make arguments about how the policy affects staff's freedom of expression.
Petrie said this case is about children's rights and freedom of expression, so adding the union perspective would be "a significant and unwarranted expansion of the proceeding."
There's also a principle called "exclusive jurisdiction," in labour law, which dictates that workplace issues should be resolved by labour adjudication with few exceptions.
The unions representing teachers and school psychologists have already filed policy grievances against the changes, but they argued that the adjudicator would probably be guided by whatever decision the court makes about the policy, so they want to be part of the process.
Petrie said the union didn't give enough evidence to warrant an exception to a well-established rule.
Because they're a private interest group, with only a personal interest in the case and intending to advocate for their own members, Petrie also denied them "friend of the court" status. That status would have allowed them to provide limited arguments.
The province did not take a position against any of the interveners, except to challenge the unions.
Petrie said the province's arguments made a difference to him.
"The province's objections are valid and have influenced my exercise of discretion," he said.
Joël Michaud, the lawyer for the New Brunswick Teachers' Federation and the New Brunswick Union, said his clients haven't instructed him on whether they want to appeal the decision. He said they have six days to decide.
Conditions on interveners
Petrie imposed nine conditions on the organizations that were allowed to join the suit.
Each group will have to keep acting jointly. This means Imprint Youth and Egale, for example, wouldn't be able to file anything separately.
They are not allowed to bring up new issues to the case, duplicate the submissions, or seek costs.
They have to ask for permission before filing any motions or cross-examining any witnesses, and lawyers have to communicate with each other and co-operate so the case can be resolved as soon as possible.
In a statement, the four 2SLGBTQ-support organizations said their priority in this case is to defend young people who are impacted by this policy, "and to fight for their right to feel safe and accepted at school."
Hatim Kheir, the lawyer representing Our Duty Canada and the Gender Dysphoria Alliance, said their goal is to represent "the rights of both children and their parents."
Petrie said in his decision that it was not a "mathematical equation," but he approved Our Duty and Gender Dysphoria Alliance, in part, to provide balance against the organizations supporting 2SLGBTQ youth.
"Perhaps it amounts to some equal treatment on both sides of the expected debate on children's rights and parental interests," he said.
Our Duty Canada describes itself as an advocacy and support network for parents of children and adolescents "captured by gender ideology." The group is the Canadian chapter of United-Kingdom-based Our Duty, which provides advice for parents to "create an environment" for their children to de-transition or stop seeking gender-affirming care.
"A child who believes they are transgender knows, deep down, that they are not," the group says on its website.
"We know, as parents, that our children aren't actually the opposite sex . … We know 'transgender' is just a label and we hope they 'grow out of it' before any real harm is done."
Gender Dysphoria Alliance advocates non-medical approaches to treating gender dysphoria, and alleges the current medical agreement on gender-affirming care for minors by endocrinologist societies, pediatric medicine societies and other medical communities is "ideologically driven."
Three other organizations have asked to intervene as friends of the court and only make arguments without submitting any more evidence. Petrie said he will decide on those at a later date.
ABOUT THE AUTHOR
