New Brunswick's new school policy on gender identity has not applied uniformly across the province.

In fact, the majority of school districts still have their own policies, despite letters of warning from the minister. 

Education Minister Bill Hogan's mandate for parental consent before staff can use certain children's pronouns got pushback from school psychologists, child advocates and district education councils.

Months later, the battle continues. Hogan recently threatened to remove Anglophone East's policy from its own website. 

Opponents of the review of Policy 713 demonstrated outside the New Brunswick legislature last summer. (Radio-Canada)

Last June, Hogan changed Policy 713 to make it mandatory to get parental consent before school staff use a child's chosen name and pronoun, if the child is under 16.

This new policy was called potentially discriminatory and dangerous by medical professionals, school psychologists, children's rights advocates and civil liberty groups. It is currently the subject of a lawsuit filed by the Canadian Civil Liberties Association, and grievances from the unions representing school psychologists and teachers.

Hogan and Premier Blaine Higgs said this policy is meant to protect the parents' right to be involved in their children's lives. 

District education councils, made up of elected members of the community who are usually parents, have the power to make policies that are "consistent with, or more comprehensive than" Policy 713, according to the policy itself.

All councils created their own policies, or amended an existing policy, at the beginning of this school year to emphasize the Human Rights Act and support for diversity. All but Anglophone North added some operational language that allowed teachers to use a child's chosen pronoun verbally in the classroom if parental involvement is in the works or not possible

Outside a Progressive Conservative fundraising event last September, Premier Blaine Higgs met with people protesting against his government's changes to the gender identification policy for schools. (Ed Hunter/CBC)

In October, Hogan sent strongly worded letters to all councils but North, saying their policies contravened the Education Act because they were inconsistent with his policy. He asked they remove their policies and gave them a deadline.

Anglophone South and West changed their policies by Hogan's deadline. Anglophone East refused.

All three francophone districts worked together to create a uniform policy they all follow. Their policy is modelled after the one suggested by child and youth advocate Kelly Lamrock, where teachers are to respect all students' pronouns from Grade 6 and up. For students younger than Grade 6, the decision is made on a case-by-case basis.

Anglophone East's policy says staff must respect students' chosen names and pronouns in "daily interactions."

"This respect for the student's wishes will be extended while efforts to 'obtain consent to talk to the parent' are being made," the policy says. "School personnel may not withhold use of the student's preferred name and/or pronouns as a means of 'obtaining consent to talk to the parent.'"

'I will, as Minister, take the corrective actions'

In letters to Hogan, the Anglophone East council said its policy is, in fact, not breaking any rules, because Policy 713 never explicitly says what should happen while the child is attempting to speak to their parents. The council said its policy can also be considered "more comprehensive" than the provincial policy.

Hogan's letters to Anglophone East became more insistent in February. In that letter, he maintained that the district is contravening the Education Act and gave a deadline of March 28 to make changes.

"If the DEC fails to comply with these requests in the time specified, I will, as Minister, take the corrective actions of repealing the district policy and having all copies removed from DEC website," Hogan wrote.

In reply, Anglophone East said it will not be changing their policy. The council asked for a meeting with Hogan instead.

According to the Education Department, officials did meet with the Anglophone East council on March 27. 

"To respect the process, details of the discussions between the two parties will not be disclosed," the department said.

Kristin Cavoukian, a member of the Anglophone East council said the meeting was "polite," but she could not say anything more on the record.

The department did not answer questions about other districts that have "inconsistent" policies, and what action the minister plans to take.

Anglophone East's policy is still on its website on Tuesday.

West, South rework policies

To appease Hogan's demands in September, Anglophone South and West made changes that brought their policies closer to North's.

South rescinded a motion that said staff should respect all students' pronouns. Instead, the district's policy reads: "The district shall ensure all staff respect the Canadian Charter of Rights and Freedoms, New Brunswick Human Rights Act, Right to Information and Protection of Privacy Act and the Positive Learning Environment Policy."

Anglophone West removed parts of its policy that said staff should respect students' pronouns while parental consent is being sought.

The current policy emphasizes the Charter, the Human Rights Act and the section of Policy 713 that says "All members of the school environment have the right to self-identify and express themselves without fear of consequences and with an expectation of dignity, privacy, and confidentiality."

The Anglophone East district education council is asking a judge to step in after the minister of education allegedly threatened to dissolve the council if it didn't fall in line behind New Brunswick's revised gender-identity policy.

In its filing Tuesday, the Anglophone East council said it intends to argue that mandatory parental consent requirements for certain pronoun changes go against the Charter of Rights and Freedoms, the Constitution, the provincial Human Rights Act and the Education Act.

Until these issues are resolved, it is asking a judge to prevent the minister from removing the council's own gender-identity policy from its website, dissolving the council based on that policy, and enforcing the current Policy 713.

In June, Education Minister Bill Hogan changed Policy 713 on gender-identity to make it mandatory to get parental consent before school staff can use a child's chosen name and pronoun — if the child is under 16.

Education Minister Bill Hogan has sent several letters demanding the Anglophone East district education council remove its current policy on gender identity, which he believes is inconsistent with the provincial policy. (Roger Cosman/CBC)

Parental consent was previously only mandatory for official name and pronoun changes on school documents. The new provincial policy now requires consent for any pronoun use in school, including verbally and in extracurricular activities.

The changes were called potentially dangerous and discriminatory by school psychologists, medical experts and child welfare advocates. Hogan and Premier Blaine Higgs said the changes were meant to protect parents' right to be involved.

This marks the second legal challenge to the policy. The Canadian Civil Liberties Association is already suing the New Brunswick government for the mandatory consent rule, and making similar arguments about children's rights to liberty, equality and freedom of expression.

The union representing school psychologists and social workers, and the teachers' union are both grieving the policy. 

Some districts fell in line

District education councils are made up of elected members of the community who are usually parents. They have the power to make policies that are "consistent with, or more comprehensive than" Policy 713, according to the policy itself and the Education Act.

At the beginning of the current school year, many people still had questions about how such a policy would be enforced, and what would happen if a parent refused to give consent. 

Three of the four anglophone district education councils created their own policies in response, providing some leeway for teachers to verbally use a child's chosen name while parental consent is sought.

Francophone councils created a unified policy that follows recommendations from the child and youth advocate and does not require parental consent for kids in Grade 6 and older.

Hogan took issue with those policies, saying they are not consistent with his own. He sent letters asking for "corrective action," to the three anglophone and all three francophone councils.

Anglophone South and West changed their policies, but Anglophone East refused. It's not clear what kind of conversations were had with the Francophone districts, but their own policies are still up on their websites.

In February, Hogan sent a letter to Anglophone East and said if the council doesn't change their policy by March 29, he will remove it from the website himself. The council responded that he does not have the power to do that and asked for a meeting.

The council's lawsuit also says that in a meeting between the ministers and council chairs, Hogan said he would be moving forward with the dissolution of councils not respecting his Policy 713.

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

According to an Education Department spokesperson, officials met with the council on March 27. When asked, neither side provided any detail of what was discussed. Councillor Kristin Cavoukian said the tone was "polite" but she cannot provide any more detail.

Just six days later, the Anglophone East suit was filed.

No date has been set to hear this case.