New Brunswick’s Changes To 2SLGBTQ+ Policy Limits Children’s Rights, Violates Human Rights Act: Report

Hazel Woodrow
Canadian Anti-Hate Network

Source: Wikicommons

A new report by New Brunswick's Youth Advocate has found that the changes made in June to Policy 713 are not in the best interests of children, and violate numerous pieces of legislation. 

“On Balance, Choose Kindness: The Advocate’s Review of Changes to Policy 713 and Recommendations for a Fair and Compassionate Policy” reviews the legality and ethics of the recent changes made to the sexual orientation and gender identity policy and makes a series of recommendations for how the province can bring the policy into compliance with the law. 

The changes to Policy 713 would allow school staff to knowingly misgender a student, or refuse to use their preferred name, if that student hasn’t gone through a process to get parental consent to use a new name and pronouns. The changes state that students who do not have parental consent need to be referred to the school psychologist or social worker to discuss involving their parents. 

The policy also removes a privacy protection for students, effectively allowing schools to "out" children to their parents when they are exploring a new gender or identity without the student's consent. Outing children to their caregivers against their will can put them at risk of harm, according to numerous experts who have been testifying as such in response to a wave of anti-transgender legislation in the United States.

Other changes to the policy include replacing gender affirming language regarding extracurricular activities with “safe and welcoming.” In addition, a private, universal change room will be available in all schools in New Brunswick. 

According to the CBC, Education Minister Bill Hogan “said it's now forbidden to respect the chosen name and pronoun of a student under 16, even informally or verbally, without parental consent. He said teachers should wait until the referral process plays out.”

The move galvanized support among those who want to see education about gender stricken from the classroom. Action4Canada, a Christian nationalist political organization, sees the policy change as a “test case” to roll back rights of 2SLGBTQ+ students and remove gender inclusive education policy in schools. Groups with a history of anti-trans organizing submitted their position jointly, encouraging the changes. 

At the same time, several professional associations immediately came out strongly against the changes as requiring them to violate professional codes of ethics and human rights. 

Prepared by New Brunswick Child and Youth Advocate Kelly A. Lamrock, the report follows a review of 400 public submissions and approximately 50 interviews with stakeholders.

Lamrock recommends a policy that balances numerous factors “in a way that may not be a dramatic rallying cry but is a nuanced document for governing a school system with diverse needs and diverse people.” 

Involving interviews with 2SLGBTQ+ students and their parents, follow up questions to parents who had submitted feedback, briefs from stakeholder groups, and invitations for input from experts, the advocate’s report outlines the complex interplay of rights and responsibilities as they pertain to children, parents, teachers, and the state. 

The report connects the child’s “right to the parent’s love and support,” to the “evidence that when parents support a child’s exploration of their gender identity it can provide more positive outcomes.” 

The report relies on case law, research (including student wellness surveys and consultations with trans youth and supportive adults), and statements provided by organizations such as the New Brunswick Association of School Psychologists and the New Brunswick Association of Social Workers. It concludes that the policy changes treat students who choose to be referred to by a different name because of their gender identity differently than those who choose a different name for any other reason. 

"That is discrimination," according to Lamrock.

Lamrock explains how the Minister cannot create policy that contradicts the Right to Information and Protection of Privacy Act passed by the Legislative Assembly, and raises concerns that there could be legal consequences to ignoring a student’s “informed and written revocation of consent to release the name and/or in the official record” to their parents.

He also adds that the “ability to confide in other trusted adults, even if those trusted adults are not their parents, is an important bulwark against the feelings of isolation and alienation that put many trans children at risk.”

Lamrock disagrees with submissions alleging that not requiring parental consent for student self-identification fosters secretive relationships and negatively impacts child safeguarding.

“A professional respecting the privacy rights of someone to whom they have a professional responsibility is not keeping secrets from others.”

He concludes that “the changes to Policy 713 are inconsistent with privacy law,” and that by “offering no definition of a child’s reasonable expectation of privacy, are incompatible with the best interests of children.”

Professionals who work with children, including school psychologists and social workers, have ethical codes that are legally binding. In their submissions to the Office of the Advocate, these professionals recommend respecting the child's name and autonomy when they have the capacity to do so.

“The school must provide that accommodation or immediately be in violation of the Charter,” the report reads. 

Lamrock encourages the province to consider certain criteria in order to justify reasonable limits placed on children’s rights that are in line with the Supreme Court’s framework for determining whether a discriminatory policy is permissible. These criteria include examining the efficacy of the policy changes, whether less intrusive means to achieve the same outcome were considered, and whether harm to children outweighs the benefits of parental involvement. 

However, he illustrates how the policy fails on all three criteria. Lamrock finds experts tasked with steering the government’s direction on education policy have stated the policy changes won’t work. He adds that “Ignoring the law of mature minors and withholding respect for the child’s process of determining their identity is not” a minimally invasive way to address the concerns of parents,” and that a child’s right to self-identification does not limit or diminish parental rights or the rights of other students, nor does it detract from the quality of education other students receive.  

“I cannot see any negative impact or undue hardship that would be proportionate to what experts agree will be the negative impact upon children,” Lamrock writes. 

Throughout his review, Lamrock balances the legitimacy of a number of factors, including that “Children do best when shown respect and kindness. Teenagers cannot be disrespected into submission. Parents matter and their connection with their child should be encouraged. Educators can be a source of trust and guidance to children. Professionals do have codes of ethics which reflect the interests of children. Laws and human rights codes exist.” 

He concludes his review by calling on “the grownups in a position to govern” to go “beyond slogans and symbolism” and to approach the work with care and kindness. He recommends that the Department of Education and Early Childhood Development make twenty changes to the current iteration of Policy 713, including that the policy incorporate statutory provisions and existing professional codes of ethics “to avoid conflicts with existing legal obligations.” 

Lamrock recommends that if the government does not bring Policy 713 in compliance with the law by September 1 that District Education Councils (elected bodies similar to school boards) adopt a set of guidelines in order to not break the law. One of the guidelines is that school personnel respect all students’ self-identification in daily and informal interactions, which would contravene Education Minister Hogan’s current directive. 

Read the full report here.