Lawsuit against N.B. gender policy coming 'soon,' emboldened CCLA says
Modifications to gender policy don't stop it from being 'harmful' to children and their rights, lawyer says
New clarifications to New Brunswick's controversial school gender-identity policy have strengthened legal arguments against it, according to the Canadian Civil Liberties Association, which believes Policy 713 violates children's rights.
Earlier this summer, Education Minister Bill Hogan said he's making it mandatory for school staff to get parental consent before using a child's chosen name and pronoun, if the child is under 16 and is changing their name for gender-identity reasons.
On Wednesday, Hogan said the written policy will now apply even to verbal communication between students and staff in the classroom and during extracurricular activities.
He also added an exemption, so staff who are privately supporting a child in making a plan to speak to their parents can use their chosen pronoun without parental consent. He said these changes address "all" legal concerns raised by an advocate's report.
Harini Sivalingam of the Canadian Civil Liberties Association said that's not what her lawyers are thinking.
"I think the clarification … has actually increased the risks and the harms for students," she said.
She said making it clear that the policy could prevent staff from using a child's chosen name and pronoun, even verbally, makes this policy even more harmful and discriminatory.
She said this strengthens their argument that the policy violates children's human and Charter rights.
"I don't want to speculate on … how a court would see them. But we still feel that there are strong arguments to be made that this policy violates the rights of young people and students."
The association has previously said it will sue if the province doesn't change or revoke its stance. Sivalingam said lawyers are reviewing the newest changes to look at what legal options there are. She said they expect to file something "soon."
Hogan previously said he made the changes to preserve the rights of parents to be involved in their children's education. He said it's a parental right to prevent a child from using a certain name and pronoun, and it's also a parental right to able to prevent teachers from using that pronoun as well.
"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 on May 19.
Kelly Lamrock, New Brunswick's child and youth advocate, released a 90-page report last week detailing the legal pitfalls that come with the policy.
He said the province, in trying to maintain parental rights, will be violating children's rights.
He also said the policy ignores advice from medical experts and psychologists, and is discriminatory because it does not apply to name changes that don't involve gender identity.
'Doesn't address the core issue'
Hogan previously said his clarifications about verbal and official pronoun use, as well as allowing private use of the chosen pronoun, have addressed "all" of Lamrock's concerns
Wayne MacKay, professor emeritus at Dalhousie University specializing in human rights and education law, disagrees with that assessment.
He told CBC News the legal risks of violating children's freedom of expression and rights to equality and accommodation remain.
"It really doesn't address the core issue, I think, of where to start in terms of recognizing the autonomous rights of the student to make their own choices in these things," he said.
Hogan says children should have a say at the age of 16, but Lamrock said there are several Supreme Court decisions and existing provincial laws that recognize that kids under 16 are able to make decisions that may be against their parents' wishes.
MacKay also said if anyone is thinking of suing the province, the advocate's report will likely be "exhibit A."
Sivalingam said the child and youth advocate's report confirmed the association's initial analysis of the policy.
Lamrock declined to comment this week, as he's still reviewing the most recent changes.
"At first reading, the advocate considers his recommendations to stand," a spokesperson said in a statement to CBC News.
The New Brunswick Medical Society previously said the province's changes go against national and international guidelines for children's wellbeing, and they could "increase the risk for psychological and physical harm to vulnerable children."
"Developmental experts stress the importance that any exploration of gender identity or sexual orientation are an integral part of healthy development, and that each child's rhythm should be respected," the society said in a statement.
The society said the policy may be harmful for normal exploration, could delay a child's development and get in the way of the child finding a clear identity, whether that's cisgender or transgender.
"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.
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