Civil liberties group files court challenge of 'harmful' N.B. gender policy

FREDERICTON — The Canadian Civil Liberties Association has filed a court action seeking to overturn a key section of New Brunswick's new policy on sexual orientation and gender identity in schools.

The province's Policy 713 says students under 16 must get parental consent before changing their preferred first names or pronouns at school.

Education Minister Bill Hogan says guidance counsellors, psychologists, and social workers can use preferred names, but teachers don't have that option for students under 16 unless parents have agreed.

The document filed in the New Brunswick Court of King’s Bench Wednesday says the change in the policy -- previously parental consent was not required -- makes schools less safe and welcoming for LGBTQ students.

It alleges the policy change creates "restrictive and harmful" rules that apply only to transgender and gender-diverse students.

The civil liberties group is asking for the court to overturn the changes to Policy 713 related to self-identification and to declare that parts of the policy are contrary to both the Canadian Charter of Rights and Freedoms and provincial legislation.

None of the allegations have been proven in court, and the Education Department said in a statement that it does not comment on matters before the courts.

The court document alleges that 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." It goes on to say the minister's statements reveal "a decision-making process that was capricious, arbitrary, and insufficiently justified."

The province's child and youth advocate Kelly Lamrock has said forcing nonbinary and transgender students to use a name they don't identify with is a violation of their Charter rights.

The Canadian Civil Liberties Association also alleges the changes to Policy 713 violate the Charter rights of LGBTQ students, specifically the right to equality and non-discrimination, the right to liberty and security of the person, and the right to freedom of expression.

"These changes cannot be justified in a free and democratic society that is committed to protecting the best interests of children and should be quashed or declared of no force and effect," the court document says.

It says the original Policy 713 was consistent with pediatric and education guidelines, and a failure to affirm an LGBTQ student's identity can lead to negative educational and health outcomes, including increased risk of depression, anxiety, eating disorders, self-harm, and suicide.

"The minister’s changes to Policy 713 are not proportionate. Harming and disadvantaging children in the name of parental interests is antithetical to any notion of (proportionality)," it says.

This report by The Canadian Press was first published Sept. 8, 2023.

The Canadian Press