Students face uncertainty as legal battle brews over N.B.'s gender-identity policy

Province says mandatory to get parental consent before staff can use chosen names, pronouns for kids under 16

As school gets underway this week, there is still uncertainty about the enforcement of New Brunswick's new gender-identity policy — especially now that district education councils are seeking legal advice on whether they can sue the province.

Students under 16 don't know what the consequences will be for asking a teacher to refer to them by a different name or pronoun. Teachers also don't know exactly how to respond, the New Brunswick Teachers' Association has said.

This summer, Education Minister Bill Hogan changed Policy 713 to make it mandatory to get parental consent before verbally using the chosen names and pronouns of students under 16. Official name and pronoun changes for that age group have always required parental consent, and that hasn't changed. 

If those younger students aren't ready to speak to their parents, they are to be encouraged to see an "appropriate professional," the policy says, to help them come up with a plan to speak to their parents.

"If it is not in the best interest of the student, or could cause harm to them (physically or mentally), to talk with their parents, they will be encouraged to communicate with professionals for support," the policy says.

WATCH | Bill Hogan explains how new a policy only applies to name changes related to gender identity: 

The policy does not say what should happen in the meantime — whether staff should continue to use a name and pronoun against the child's wishes, or honour the child's wishes while they work on connecting with their parents.

Hogan said staff must keep using the child's birth name and pronoun regardless of what the child says, unless parents consent.

He said if staff use a child's self-chosen name and a parent complains, they could be disciplined.

Peter Legacy, president of the teachers' association, previously said the policy "places teachers in an ethical dilemma: either they uphold a policy that dictates that they ignore advice of all professionals, or they risk sanctions from their employer."

On Tuesday, he said "teachers will always find a way to do what's right for their students, respects parents as partners and continue to make sure that our schools are welcoming and safe, inclusive spaces for everyone."

Anglophone South superintendent Derek O'Brien said "all of our learners will be respected."

"Our district certainly wants to make sure that we stay consistent with the policy. We'll stay consistent with the Education Act and the New Brunswick Human Rights Act and Canadian Charter of Rights and Freedoms," he said.

"We will follow the policy, but provide support in the creation of plans for students in our schools."

There are already children under 16 using a different name and pronoun in some schools, according to Kelly Lamrock, the province's child and youth advocate, and it's not clear if those children will have to revert to their birth names until their parents consent.

Additionally, Hogan said the policy does not apply to nicknames. He said if teachers aren't sure if the child is asking for a nickname or changing their gender, they "can always ask."

School psychiatrists and medical experts have said these changes could increase the risk of self harm. The New Brunswick Medical Society said not honouring a child's request for a specific name and pronoun may be harmful for normal exploration, could delay a child's development and get in the way of the child finding a clear identity.

"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.

Three groups now planning to sue

Joe Petersen, chair of Anglophone North education council, said the four anglophone councils have retained a lawyer to find out how they can sue the province over its changes to Policy 713. 

Hogan and Premier Blaine Higgs said this change is to protect "parental rights" to be involved in their children's lives. 

Hogan previously said it's a parent's right to force teachers and staff to use the pronoun the parent prefers.

"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.

ABOUT THE AUTHOR

Hadeel Ibrahim

Hadeel Ibrahim is a reporter with CBC New Brunswick based in Saint John. She reports in English and Arabic. Email: hadeel.ibrahim@cbc.ca.