N.B. gender-identity lawsuit attracts 'unusual' number of interveners
Organizations represent teachers, refugees, Indigenous people, parents who want to be notified
Fourteen organizations are seeking to be heard in a lawsuit against New Brunswick over its gender-identity policy, a number that one constitutional expert says is unusual outside appeal and Supreme Court hearings.
At issue is Policy 713, revised this summer to require parental consent before teachers can use a chosen pronoun requested by a child under 16. The Canadian Civil Liberties Association is asking a judge to quash it and argues the policy is unconstitutional.
The association's suit alleges the rule violates children's charter rights to liberty, equality and freedom of expression because it takes away children's power to choose pronouns fundamental to their identity, discriminates against them and limits gender expression.
The province has not yet filed a statement of defence.
Two organizations have applied to intervene in support of the province. They argue affirming children's gender identities could be harmful.
One group says on its website that being transgender is not real, and it supports parents in how to "create an environment" for their children to stop transitioning.
Because he expected high interest in the case, Justice Robert Dysart had set a deadline of Nov. 30 for all intervener applications. Eight applications were submitted by the deadline, representing unions, two-spirit Indigenous representatives, migrant and refugee advocates and LGBTQ advocacy groups.
Kerri Froc, a constitutional law professor at the University of New Brunswick, said it's "unusual" for this many organizations to want to be heard in a lower-court case, but the interest makes sense because of the issues.
"It could be that organizations are seeing this isn't going to stop here, that this is maybe something that could be destined for the Supreme court, so they want to get their place in early," Froc said.
Interveners are organizations or people who believe they have an interest in the outcome of the lawsuit and want to make arguments to be considered by the judge. An intervener can ask to be a party to the case, and submit evidence, or a friend of the court to help interpret the legal issues but not present new evidence, Froc said.
In this case, all but one organization are applying to become party to the case and want to be directly involved.
Not a 'popularity contest'
Only one application, co-filed by Gender Dysphoria Alliance and Vancouver-based Our Duty Canada, asks to present evidence in support of the revised policy.
Froc said the number of interveners supporting each side is not in itself that important, as "it's not a popularity contest." She said the impact of an intervener would depend on the strength of its arguments and whether they're unique and persuasive.
Our Duty Canada bills itself as "a support network for parents of children and adolescents captured by gender ideation."
The group is the Canadian chapter of United-Kingdom-based Our Duty, which says being transgender is not real.
"We know, as parents, that our children aren't actually the opposite sex," the group says on its website. "We know 'transgender' is just a label and we hope they 'grow out of it' before any real harm is done. Adopting an identity that is rooted in what we shall call 'gender ideology' is neither natural nor healthy."
Gender identity is recognized by all Canadian medical and psychiatric organizations. Gender identity and expression are protected under the federal and provincial human rights acts.
In an affidavit submitted to court, Karin Litzcke of Our Duty Canada said the organization represents parents who believe using their children's chosen pronouns is not right, and blame gender affirmation for a decline in their children's well-being.
Litzcke says the group, started in 2022, has more than 80 members. Thirty per cent of them are estranged from their adult children, she said, and "the remaining 70 per cent often have tense, conflicted relationships, often made conditional on the parent affirming the child's chosen identity."
She says in her affidavit that 90 per cent of members with children who transitioned at school were not told about their child's transition. She does not say what the total number of members in that situation is and if any of them are from New Brunswick.
Our Duty Canada "would be adversely affected if Policy 713 were struck down in this case because parents who would otherwise seek out ODC's resources, support, and assistance, may be left uninformed," the application says.
The New Brunswick Medical Society has previously said requiring parental consent or denying a child's request for a pronoun until a parent consents "directly contradicts international medical recommendations."
The Gender Dysphoria Alliance has also applied to intervene in a Saskatchewan lawsuit against a similar parental notification rule, and was successful.
The group says in its application that its primary goal is "to promote evidence-based discussion about gender dysphoria."
It believes using a child's chosen pronoun is a "serious intervention," so parents should be involved before it starts.
According to the College of Psychologists of New Brunswick, the medical society and the Canadian Paediatric Society, the potential harm to children comes from refusing to affirm their pronoun choices.
3 school staff unions want to give evidence
The New Brunswick Teachers' Federation's application says the requirement for parental consent could violate teachers' freedom of speech. The union has separately filed a policy grievance.
The New Brunswick Union representing school psychologists has also filed an application and is also grieving the policy.
The Canadian Union of Public and Private Employees representing educational assistants and student attendants has also asked to intervene.
Theresa McAllister, president of CUPE Local 2745, filed an affidavit saying she has been approached by union members "who have expressed concerns regarding Policy 713 because it conflicts with their personal beliefs and views."
"They fear being disciplined if they do not comply with the directives in Policy 713."
The application by Egale Canada and three New Brunswick LGBTQ groups says they want to provide evidence of how the new policy "unreasonably or unjustifiably limits gender diverse young people's Charter rights."
Refugee, Indigenous, feminist representation
The Madhu Verma Migrant Justice Centre and the New Brunswick Refugee Clinic, in a joint application, said they work with gender-diverse refugees, some of whom are children who would go to school, or are parents of those children. Their application says their clients are sometimes from countries where sexual and gender minorities are criminalized and persecuted.
"This compounds the risk of harm to transgender and gender-diverse migrant youth who might be further victimized in New Brunswick as a result of the amended Policy 713," the application says.
Equality New Brunswick, a social justice non-profit, and the Wabanaki Two Spirit Alliance co-filed an application. The groups want to present evidence about how it is unconstitutional to "impose the beliefs and values of the religious majority regarding sex, gender and sexuality" on Indigenous people whose treaty rights are protected.
The Women's Legal Education and Action Fund, a legal advocacy group that has expanded to include gender-diverse advocacy, says it will argue "the Court must consider the best interests of the child," when deciding whether the policy is unconstitutional, while also considering the potential for family violence.
Before hearing the applications, the judge will first have to decide whether the civil liberties group has standing to bring the lawsuit. The province has already said it's not arguing against this.
If the judge grants standing, the lawsuit and intervener applications will go ahead. If the judge denies standing, the case would end there.
Froc said it's impossible to be sure yet, but it's unlikely the judge would deny standing since it's not contested and the civil liberties association has previously been granted standing in the province for another lawsuit against the government.
ABOUT THE AUTHOR
