CCLA lawsuit asks court to quash parental consent rule in N.B.'s gender-identity policy

The Canadian Civil Liberties Association has filed the first lawsuit against New Brunswick's changes to school gender-identity policy.

The suit follows Education Minister Bill Hogan's decision in June to change Policy 713 to make it mandatory for staff to get parental consent before using the chosen names and pronouns of children under 16.

Hogan said parents have a right to decide what pronoun is best for their children and should be able to control what name and pronoun teachers and staff use in verbal communication, regardless of the child's wishes. 

He said if teachers grant a child's request for a specific name and pronoun, and the parents complain, then the teacher could face disciplinary action.

In court filings this week, the civil liberties group asks that a judge review and quash these specific changes and declare they violate LGBTQ children's charter and human rights.

The association also asks that a judge order the province to rewrite the policy and declare that it can't forbid the use of a child's chosen name or pronoun without parental consent.

"The rules require that teachers and school staff participate in the misgendering or deadnaming of students for indeterminate periods of time, even when this approach is against the advice of school social workers and psychologists," the lawsuit says. 

"The changes to Policy 713 were made following a flawed and unfair process by a Minister who exhibited a 'closed mind' and a reasonable apprehension of bias."

The lawsuit says the policy violates children's charter rights to equality and non-discrimination because it requires their informal name changes to be denied until parents consent but doesn't have any requirements for kids who ask for a nickname to be used. 

The suit says the policy also violates children's charter right of liberty and security.

"The revised policy removes decision-making power for mature minors and exposes them to a vague and convoluted process to have their personhood recognized," the suit alleges.

"The revised Policy 713 does not require teachers to use a 2SLGBTQIA+ student's preferred name or pronouns while they are engaging with a social worker or psychologist, even if that professional were to state that such use was clinically indicated and in the student's best interest."

It also alleges a violation of children's freedom of expression by making it less likely that they participate in class, or confide in a teacher who could sometimes be "the only trusted adult in a child or youth's life."

The association also asked the province to release the records that led to the development of the original policy in 2020, to the amendments in June 2023 and to the further amendments made by Hogan in late August.

A spokesperson for the Department of Education said it does not comment on current legal issues.

The civil liberties group said it wouldn't comment Friday but has scheduled a news conference in Fredericton for  Monday.

The allegations have not been tested in court, and the province hasn't filed a statement of defence.

The filing made on Wednesday is the first step in a lengthy legal process. The association, as a group that's not directly affected, also has to prove that it has "public interest standing," on top of proving the main allegations.

More groups seek legal opinion

No date has been set yet for a hearing, according to the Fredericton Court of King's Bench.

Francophone and Anglophone district education councils have hired two different lawyers for a legal opinion on how they can sue the province over the changes. 

Since New Brunswick raised the topic of self-identification in school, Saskatchewan has brought in a similar policy, and it's also being sued for it.