Policy 713 back on agenda during raucous first question period of the fall

The Policy 713 debate that divided the Higgs government in June was back at the top of the agenda in the first regular sitting day of the new session of the New Brunswick Legislature.

The opposition Liberals pushed Premier Blaine Higgs to apologize for comments he made about teachers, demanded he rule out using the Constitution's notwithstanding clause and dared him to call an election.

The Green Party chimed in, introducing a motion demanding Higgs apologize for his Sept. 20 comment that "in the education system, children are being taught to lie to their parents."

Higgs defended his position, repeating his stance that parents must be told if children under 16 want to change their name, pronouns and gender identity in school.

Six PC MLAs who rebelled against him in June on the issue listened glumly to the exchanges in question period.

Higgs made the comments about students "being taught to lie" at a Fredericton event that was part of a nationwide "1 Million March 4 Children," protesting LGBTQ-inclusive education policies in the classroom and in extracurricular settings under the banner of parental rights.

In June, the province changed Policy 713 to require parental consent before teachers can verbally use a student's chosen name and pronoun, if the student is under 16. The old policy required parental consent only for official name changes on school records for that age group.

Opposition Liberal Leader Susan Holt accused Higgs of not supporting teachers when he accused them of advising children to mislead their parents.

"Can you confirm today that this is what you believe of our teachers, or will you apologize for that statement?" she asked.

Coon said teachers "have never felt so disrespected in their entire teaching careers" as they did after the premier's comments.

"It's an important apology he needs to make, and it's the least he can do to take back the hurt he caused among the entire teaching profession in this province," Coon told reporters after introducing his motion. It will be voted on at a later date. 

Higgs didn't repeat the phrase about children being taught to lie on Wednesday, but defended his decision to require parental consent.

"It's interesting we even have a debate on this topic because parents have always been key to their children's future and key to helping their children make their decisions," he said.

He claimed the earlier version of Policy 713 — which said school staff had to adopt a plan to accommodate a child's decision without notifying their parents — was too sweeping because it applied to "all homes."

In fact, the policy was designed only for the small number of families in which a child's sexual orientation or gender identity might put them at risk of abuse or other mistreatment. 

Holt also demanded Higgs and Education Minister Bill Hogan commit to not using the Constitution's notwithstanding clause to override any legal ruling that their changes to Policy 713 are unconstitutional.

Child and youth advocate Kelly Lamrock said in a report in August that he believes the changes violate the rights of children under the Charter of Rights and Freedoms, the New Brunswick Human Rights Act and the Education Act.

Section 33 of the Charter allows a government to exempt legislation from some of the protections in the Charter, including equality rights.

The section is rarely used, but the Saskatchewan government has introduced legislation to invoke it to shield its policy on gender identity in schools from a legal challenge now before the courts.

It made that move after a judge issued an interim injunction blocking the new policy from taking effect pending an eventual court hearing.

The Canadian Civil Liberties Association has filed a charter challenge to New Brunswick's Policy 713, but has not asked for an interim injunction. 

Hogan suggested Wednesday that the Higgs government will let that case play out before making a decision about the notwithstanding clause.

"It would be inappropriate to look into the future and presuppose what the court's going to decide on the current challenge that's before it and speculate on what may happen in the future," he said.

"I personally believe that we're in the right, we're on the right side of this question, we're on the right side of the issue, and the court will rule in our favour."

But he and Higgs would not rule out using the clause eventually. 

"We don't deal with hypothetical situations in this house," Higgs said.

Holt also goaded Higgs about his threat to call an early election, calling him "indecisive" and accusing him of getting "cold feet" after putting preparations in motion.

The premier has said several times in recent weeks he might have to go to the polls to resolve "instability" in his caucus created by six Progressive Conservative MLAs who voted with the Liberals on Policy 713 in June. 

Higgs responded to Holt on Wednesday by warning her to "stay ready for an election."

That prompted several Liberal MLAs to yell, "Call it! Call it!"

Once of the six PC MLAs, Daniel Allain, appeared to reconcile with Higgs on Tuesday but the premier says the other five may still be "waiting for the right moment" to disrupt his agenda.

"I don't want to impose an election on the people of the province if there's any other mechanism here, but I can't be in a position that we have ongoing instability within government," Higgs said.

One of those five MLAs, Ross Wetmore, dismissed that possibility.

He told reporters he has "no problem" supporting Higgs's throne speech or the legislation scheduled for the fall session.

"Unless there's something that comes out of left field that nobody's discussed … I can't see any reason why this government wouldn't roll all the way" to October 2024, he said.

Wetmore avoided saying, however, how he'll vote on Coon's motion calling on Higgs to apologize to teachers for his comments on Sept. 20.

"Let's see if it comes to the floor of the legislature," he said.

"I've been in opposition and I brought forward all forms of nutty motions, and I'm not saying this is a nutty motion. But let's see if it even comes to the floor of the legislature."