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 the 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.
Child and youth advocate Kelly Lamrock says his advice to school districts ist that no one can know for sure what a judge will decide, but when in doubt, it's best to rely on the charter, the Human Rights Act and the Education Act, instead of a provincial policy. (Radio-Canada)
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.
Some DECs will go their own way
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."
He said he sent letters setting out "corrective actions" to two school districts last week, and a third will be sent this week.
"I am confident that school districts will promptly comply with these requests for corrective action."
Kristin Cavoukian of the Anglophone East District Education Council says the legal opinion the council got is that its policy requiring school staff to respect all students' pronouns, regardless of parental consent or age, is on solid legal ground. (Maeve McFadden/CBC)
It's not clear if Hogan's confidence is misplaced, and what happens if schools don't comply.
Kristin Cavoukian, who sits on Anglophone East District Education Council, said the council has spoken to a lawyer, who said they're on solid legal ground.
"We've gotten a legal opinion on our way forward and we know that it is legally sound. So what the minister chooses to do after that is up to the minister," Cavoukian said.
"District policies come from directly elected district education councils. Directly elected, I might add, by parents in their respective district."
Child and youth advocate Kelly Lamrock previously conducted a two-month consultation with parents, experts and students about the new rules. He said his opinion is the new policy violates children's rights and the provincial Education Act, and recommended a new policy that lowers the age for parental consent requirement to 12.
In response, Hogan made a few changes, including allowing psychologists and social workers to use the child's chosen name and pronoun in private. Hogan said those changes and others address "all" of Lamrock's concerns.
In a documents released Tuesday, Lamrock disagreed. He said there are still privacy and legal issues that are not addressed.
"What is clear is that, with this change, the Department has accepted the clear evidence that it is unethical and ineffective for professionals working with children to call them names they do not wish to be called," he said.
"Why the Department accepts this but still insists upon teachers and principals calling children names they do not wish to be called is an explanation they have not chosen to offer."