DECs, department clash as legal battle heats up over gender-identity policy

The Canadian Civil Liberties Association is asking for an expedited hearing as the New Brunswick Education Department and district education councils continue to clash over a new gender-identity policy.

At issue is the new rule that requires school staff to get parental consent before verbally using the chosen names and pronouns of children under 16 — and whether that is legal.

Education Minister Bill Hogan has defended his June revision of Policy 713, saying 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. 

But as students returned to school last week, the Canadian Civil Liberties Association filed a lawsuit over the changes Hogan made.

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

On Monday, the association said it has also filed a motion for an expedited hearing on whether it has standing to go ahead with the suit.

The group's allegations have not been tested in court.

Earlier, the majority of district education councils in New Brunswick passed their own policies mandating that school staff use a child's chosen name and pronoun regardless of parental consent. Hogan has sent a letter reprimanding those districts and outlining "corrective actions."

Hogan hasn't shared with the public what he meant by "corrective measures."

In advice to districts released Monday, child and youth advocate Kelly Lamrock said that following the province's policy and the minister's demands will make them legally vulnerable.

He said districts have the legal authority, and the legal duty, to "resolve policy conflicts in favour of the interpretations that support the Charter and the Human Rights Act."

He said while his opinion is not legally binding, schools and districts are independent actors, and "following orders may not shield them from legal accountability for those actions.

"If they choose to follow the government's instructions and begin deadnaming children, using their official record name without consent, and asking children if they are trans, they may find themselves as respondents in the legal response," Lamrock said. 

In an emailed statement to Radio-Canada, Hogan said: "I am aware that some school districts and school administrators are directing not to comply with the revised version of Policy 713 ... This type of directive results in staff receiving conflicting information, which causes confusion."