A constitutional expert says the minor tweaks to Policy 713 announced on Wednesday don’t address the ways in which the policy could violate the Charter rights of children.
Kerri Froc, a constitutional lawyer and associate professor at the University of New Brunswick, says the changes do nothing to respond to various legal issues raised in a report by the child and youth advocate.
“This seems like just trying to formally look like they’re trying to respond to the report without responding to the report,” she said.
Education Minister Bill Hogan announced the changes Wednesday, which included added definitions of formal and informal uses of names at school as well as affirming that professionals like counsellors can use a child’s preferred name when speaking one-on-one in an official capacity.
The use of names in all classroom and extracurricular interactions is now considered “formal,” meaning children under 16 will need permission from their parents to use a different name or pronoun if it’s for the purposes of aligning with their gender identity. Shortened forms of names not related to gender identity, like Robert wanting to be called Rob, do not require parental permission.
Froc said the change doesn’t address the potential legal complications raised by child and youth advocate Kelly Lamrock in a lengthy report on the policy issued last week. While she says she doesn’t agree with all of Lamrock’s constitutional analysis, she says there are potential issues that the tweaks have failed to address.
“The question is whether denying someone the basic courtesy of calling someone what they want to be called in the classroom, whether or not that is a violation of a child’s rights,” she said.
“In some cases of mature minors, where they have very good reasons for not wanting to tell their parents, maybe not now, maybe later, I think that there might be a good case. In other cases, it might be beneficial to involve the parents, even if the child is reluctant.
“What this policy does is doesn’t allow for that case-by-case determination by some of the best people that can do that: social workers, school psychologists, school teachers.”
When asked if he believed the changes would survive a legal challenge, Hogan told reporters that it wasn’t for him to say.
“In any act that we bring forward, there’s always the possibility that parts can be challenged,” he said. “It would be not appropriate for me to presuppose what the courts will judge.”
Lamrock said in his report that the revisions to the policy announced in June allow parents to have an effective veto over their children’s gender expression until they are aged 16, which could be a Charter violation. He has also said that forcing students through a different process if they want to change their name for reasons related to their gender identity is inherently discriminatory.
The report made a number of recommendations, including that children over 12 be considered mature enough to make decisions based on their preferred name and that a process be put in place for principals to determine if younger children have the capacity to make the decision on a case-by-case basis.
A spokesperson for the advocate’s office said Lamrock is on vacation and is taking time to review the tweaks, but after first reading he “considers his recommendations to stand.”
The Canadian Civil Liberties Association (CCLA) is also criticizing the tweaks to the policy.
“CCLA has serious concerns about the constitutionality of the changes to Policy 713 in New Brunswick and the deeply flawed process that led to these changes,” Harini Sivalingam, the director of the equality program for the CCLA, said in a statement.
“The Minister of Education and Early Childhood Development’s most recent revisions to the policy do not address these concerns. They do not fix the problems identified by the New Brunswick child and youth advocate in his expert report.
“The changes to Policy 713 are discriminatory. They will harm young people when school resumes in the fall.”
Froc said the policy could be found to violate Section 15 of the Charter, which deals with equality rights, but doesn’t consider it “a slam dunk” as Lamrock does in his report. Since the policy creates a separate requirement for trans and non-binary kids to go by a different name in school, the policy could be found to be discriminatory, Froc says, but it remains to be seen whether the courts would see the inclusion of parents as a reasonable limit on those equality rights.
But as the courts consider whether the infringement on equality rights is reasonable, they will also consider the process by which the decision to limit those rights was made. Froc says the chaotic review of the policy could hurt the government’s case in a legal challenge.
“The court wants to see this as a careful, thoughtful, tailored response and that limitations to rights are thoughtful and proportionate,” she said.
“So the way that this was rolled out might cause them some problems as well.”
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