Teachers' union files grievance, asks to join lawsuit against gender identity policy

The union representing teachers in New Brunswick wants to intervene in a lawsuit against a new gender-identity policy and has filed an internal policy grievance with the province.

This summer the province changed Policy 713 to require parental consent before teachers can verbally use a child's chosen name and pronoun if they're under 16. Official name changes for that age group, on report cards for example, have always required parental consent.

The Canadian Civil Liberties Association filed a legal challenge against this section of the policy, saying it violates children's Charter rights to equality, liberty and security.

In court documents, the New Brunswick Teachers' Federation said teachers have a stake in the suit because of the policy's possible impact on their freedom of speech. 

Joël Michaud, the lawyer for the teachers' federation, said if the application is approved, they would be arguing for a clear policy that does not potentially breach children's rights.

"The arguments would be in favour of a legal policy that is reasonable," he said. 

"The interest of the federation in this context is to ensure that teachers are not forced to take part in the breach of Charter rights, or of human rights, of these individuals."

4 LGBTQ groups also want to be heard

In a news release, Ontario-based Egale Canada said it filed the motion to intervene in the case alongside local groups Alter Acadie, Chroma N.B., and Imprint Youth.

"These organizations have a direct interest in the case because they serve and advocate for gender diverse youth in New Brunswick and across Canada," the news release said.

"All young people deserve to be safe and free from discrimination at school. In fact, this is protected by sections 7 and 15 of the Charter. The changes to Policy 713 violate these constitutional protections for gender diverse students in New Brunswick."

The organization said it wants to represent the interests of gender diverse people under the age of 16 who are directly affected by the outcome, to introduce evidence about the effects of the changes to Policy 713 on them and to make legal arguments on how the changes "unreasonably or unjustifiably limit gender-diverse young people's Charter rights."

Clarity needed

The teachers' federation represents about 8,000 teachers in both the anglophone and francophone sectors.

Michaud said the internal policy grievance filed with the province alleges Policy 713 is "unreasonable" and not clear. He also said with different education councils passing different policies, there is a lot of confusion about what could potentially get a teacher in trouble.

"We need clarity for teachers," he said. "I understand the minister has hinted at the fact that individuals or teachers could face discipline if they didn't follow 713. Well, some of the other district policies are arguably inconsistent with 713.

"So from the perspective of teacher, you're damned if you do and damned if you don't."

The union representing school psychologists and social workers has filed a similar grievance against the changes to Policy 713.

Harini Sivalingam, the director of the equality program at the civil liberties association, said the lawsuit's outcome would affect teachers directly.

"The ability of educators to fulfil their professional obligation towards students in a safe, inclusive, welcoming environment ... is at stake," she said. "They definitely have an interest in the legal challenge."

In order for the lawsuit to go ahead, the civil liberties group must first get a judge to rule that it has standing to sue the province. A hearing about the issue is scheduled for Oct. 25 at the Burton courthouse.

The case has not yet been heard in court and the province has not filed a statement of defence.

Some districts stand firm 

The original 2020 version of Policy 713, as well as the updated version, allow district education councils to "develop policies and procedures that are consistent with, or more comprehensive than, this provincial policy."

Since the changes were announced in June, almost all district education councils have passed their own policies. Some, such as Anglophone South, added a line that says teachers will respect all students' chosen names and pronouns — with no mention of parental consent.

Anglophone East and all three francophone districts passed multi-page policies that function as implementation guides, based on recommendations from child and youth advocate Kelly Lamrock. They allow teachers to respect all students' pronouns if the student is 12 and over.

Minister of Education Bill Hogan has previously spoken out against those policies.

In a statement, a department spokesperson said district education councils of the Anglophone East, South and West, as well as Francophone Northeast, Northwest and South received "corrective action" letters about their policies.

"The corrective action letters outline that the districts must comply with Policy 713," the statement said.

Anglophone South changed its policy and Hogan approved, the spokesperson said.

Kristin Cavoukian, a district education councillor with Anglophone East, said the council passed a motion Tuesday to tell the minister that they're making no changes to their policy.

"We simply disagree factually with the allegation that our motion contravenes the provincial policy," Cavoukin said. 

Cavoukian said she's not sure what the minister can do to force them to change the policy, but said he may be able to dismantle the council. She said her council is not worried about that.

"None of us are concerned that that might happen to us, because ... the alternative is putting a situation into place that is dangerous to children," she said.

The spokesperson said the department will wait for an official response from Anglophone East before responding.