With New Brunswick’s revised version of its school gender identity policy already facing one legal challenge, Premier Blaine Higgs has not ruled out using the notwithstanding clause to shield it from the courts.
“There’s lots of debate to be held on that, but at this point, I believe it’s necessary to look at whatever it takes to have parents involved,” he said.
The revised version of Policy 713 now requires parental consent for a student under 16 to use a name or pronoun that isn’t consistent with the gender they were assigned at birth. The Canadian Civil Liberties Association has already launched a legal challenge, arguing it violates three sections of the Charter of Rights and Freedoms as well as the New Brunswick Human Rights Act.
Following an injunction putting the brakes on similar changes to Saskatchewan’s policy, Premier Scott Moe has signalled he intends to use the notwithstanding clause to allow the changes in that province to stand.
Should Higgs wish to follow suit, the government would need to pass amendments to the Education Act, according to constitutional lawyer Lyle Skinner.
“What would have to happen is that there would be an amendment in the Education Act saying a certain section of it would operate notwithstanding the Charter of Rights and Freedoms,” he said.
“In this case, my assumption would be notwithstanding equality rights under Section 15.”
Basically, the government could change the act to allow the policymaking power of the minister to violate the Charter, which would protect the changes from the courts for the next five years. But Skinner says the government should ensure that the use of the notwithstanding clause is as narrow as possible to avoid future unintended consequences.
“It’s important to have it narrowly confined to avoid accidentally giving the minister the unilateral power to develop other policies that may violate Section 15 Charter rights,” he said.
But since use of the clause would require legislative changes, it remains to be seen if the government would be able to successfully stickhandle them through the assembly. Six government MLAs have raised concerns about the revisions to the policy and voted with the opposition in June to call on the province’s child and youth advocate to conduct further consultations on the changes.
The premier is also rumoured to be considering a snap election, which would push back the timeline for legislative changes to work their way through the house to late November at the earliest.
Former local government minister Daniel Allain was turfed from cabinet after voting for the opposition motion on Policy 713. He wouldn’t entertain questions from reporters earlier this week on if he would support legislation that used the notwithstanding clause to protect the current iteration of the policy.
“I never talk about hypothetical questions, I never answer hypothetical questions,” he said.
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