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
As school gets underway this week, there is still uncertainty about the enforcement of New Brunswick's new gender-identity policy — especially now that district education councils are seeking legal advice on whether they can sue the province.
Students under 16 don't know what the consequences will be for asking a teacher to refer to them by a different name or pronoun. Teachers also don't know exactly how to respond, the New Brunswick Teachers' Association has said.
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."
ABOUT THE AUTHOR
With files from Information Morning Saint John