Multiple groups look to join legal challenge of N.B. gender identity policy

Click to play video: 'N.B. Court of King’s Bench to hear intervener motions on Policy 713 challenge'
N.B. Court of King’s Bench to hear intervener motions on Policy 713 challenge
Nine groups are seeking to be interveners in a legal challenge of New Brunswick’s revision of its school gender identity policy, known as Policy 713. Silas Brown has more – Mar 5, 2024

Nine groups have filed motions to act as interveners in the Canadian Civil Liberties Association’s legal challenge of revisions to New Brunswick’s school gender identity policy.

At a pre-trial conference on Tuesday, Court of King’s Bench Justice Richard Petrie began to set out the process for deciding which of those nine groups will be granted intervener status, and if so, to what extent they’ll participate.

The provincial government made changes to Policy 713 last spring, requiring parental consent for students under 16 to informally use a different name in the learning environment. The CCLA filed an application for a judicial review in September 2023, arguing that the changes infringe on the Charter rights of children and violate the New Brunswick Education Act and Human Rights Act.

Since then nine groups have come forward looking to participate in the case in some way. Six groups are seeking to be full parties to the case, meaning they will give evidence and be able to cross-examine witnesses. The other three are looking to act as “friends of the court,” meaning they’ll make arguments but won’t add evidence.

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Hearings for the motions of the six seeking full party status will take place on April 18 and 22, and have been asked to submit any evidence they intend to present on the judicial review by March 22 in order to allow lawyers for the province and the CCLA to determine if they’ll oppose any of the motions.

Ben Perryman, co-counsel for the CCLA, says the organization is pleased to see the process moving quickly.

“I think the CCLA’s concern all along has been to see this proceed as quickly and efficiently as possible and I think you heard that from the court today that court also wants to see this move as quickly and efficiently as possible,” he told reporters following the pre-trial conference.

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One of the groups seeking full party status is national LGBTQ2 organization Egale Canada. It’s also representing three local community LGBTQ2 groups, Imprint Youth Association, Chroma NB and Alter Acadie.

Co-counsel for Egale, Ljiljana Stanic, says the group will provide valuable perspective to the proceedings.

“Those organizations work directly with the youth who will be affected by this — gender-diverse youth right here in New Brunswick. So we would bring a lot of value, we’ll bring important information about how the policy affects youth here and as well we’ll be bringing in expert witnesses,” she told reporters.

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Other motions requesting full party status come from unions representing school staff, including the New Brunswick Teachers Federation (NBTF), CUPE Local 2745 and the New Brunswick Union of Public and Private Employees.

Equality NB and the Wabanaki Two-Sprit Alliance have also applied for full party status.

The final motion requesting to be a full party is a joint application from the Gender Dysphoria Alliance and Our Duty Canada, organizations that have advocated against gender-affirming care.

According to its website, Our Duty is an “international support network for parents who wish to protect their children from gender ideology.”

Lawyers representing the province and the CCLA both said that without knowing what evidence each organization intends to provide, it is difficult to say if they would oppose any of the motions.

Stephen Hutchinson, counsel for the attorney general, said that in particular he was concerned that the motions from the three unions suggest they may stray into territory around disciplinary action for failing to follow the policy as currently written, which is currently being grieved by the NBTF.

NBTF lawyer John MacCormick said he believes the threat of discipline for failing to follow the policy is relevant, as Policy 713 is a workplace policy for teachers.

“Our position is that policy contains unjustified limits on teachers’ freedom of expression,” MacCormick told the court.

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Hutchinson also raised concerns about the potential of some interveners to broaden the scope of the judicial review. In the case of Egale Canada, he singled out two paragraphs in one of the motion’s supporting affidavits where school sports and extracurriculars were mentioned.

Hutchinson said that while the changes brought by the government in that area are certainly open to be challenged, it goes beyond the scope of the CCLA request.

But Stanic, who represented Egale in court on Tuesday, said its evidence may deal with students being misgendered while participating in extracurricular activities, but not on the policy governing participation itself.

The three organizations seeking to be friends of the court are the Madhu Verma Migrant Justice Centre, the Women’s Legal Education and Action Fund, and the Association for Reformed Political Action. None of those applications were opposed by either the province or the CCLA and will be settled outside of open court.

The hearing also included discussion about the disclosure of the “record,” or the information consulted by the minister of education that led to the changes to the policy. The CCLA and lawyers for the province have been unable to come to an agreement about what should be released. The province argues that it can’t be sure of what to release until the scope of the judicial review is defined.

Petrie said he didn’t want to see the case get bogged down over the issue and ultimately ordered the province to release the record as it sees it, which would then allow the CCLA to file a motion requesting more if it didn’t feel it was complete.

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“I expect this to be a number of weeks, not months,” Petrie said when giving his direction to the two parties.

“I don’t want seven weeks to go by where nothing happens.”

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