New LGBTQ school policy does not ban informal pronoun changes, experts say
NBTA trying to get clarity from department, child advocate says minister's words don't count, legally
Teachers and school staff are facing a conundrum: the minister of education says it's now forbidden to respect a child under 16's chosen name and pronoun, even informally or verbally, without parental consent.
But the changes he introduced to the policy on gender identity are not as explicit.
So should employees follow the written policy or the minister?
Child and youth advocate Kelly Lamrock said when in doubt, the policy prevails.
"Law doesn't really work like that. If you're serious, you put it in the policy," said Lamrock, a lawyer and former education minister.
"Saying it in an interview, he might as well be hollering into the speaker at a Starbucks drive-thru. It doesn't really have any legal impact."
Lamrock said his office will be preparing a document based on established law to guide teachers. That document can also be used as a defence if any teacher faces repercussions for respecting a child's expression of gender identity.
"There are legal issues as to what you owe children for privacy, or respect for them, in daily interactions."
Gender identity and expression are also protected under the federal and provincial Human Rights Acts.
The province introduced controversial changes to Policy 713, which sets out minimum standards for providing a safe learning environment for LGBTQ students, last week.
Lamrock released a report this week calling for the reversal of all changes as some of them are "inadvertently discriminatory."
The New Brunswick Teachers' Association, the New Brunswick Women's Council, the union representing school psychologists and a human rights expert have all said they don't see a ban in the way the changes are worded in Policy 713.
The policy previously made it mandatory for teachers to respect all students' chosen name and pronoun verbally, even if the parents hadn't been consulted.
That section no longer applies to children under 16, and it has not been replaced by any other rules about what teachers should do when a student 15 years or younger requests to be verbally referred to by a different name or pronoun.
The policy has always required a parent's consent for official name changes for students under 16 — on report cards, class lists and school systems. This section has not changed.
What changed is what happens if a child declines to include the parents in the conversation about official name changes. In the new policy, they now have to be "directed" to a school psychologist or social worker who would work with them to create a plan to inform their parents.
The minister says while this process is ongoing, teachers would have to continue using the child's birth name and pronoun in class. However, the policy, as it is written, does not specify this.
Wait lists for school psychologists are two years long in some schools, and 41 of the 48 psychologist positions in the anglophone school system are vacant.
No 'witch hunt,' but possible repercussions
Bill Hogan has said teachers "don't have a choice" and cannot comply with a child's wishes.
He said this change will give teachers the opportunity to avoid doing something that's against a parent's wishes.
He said he won't go "on a witch hunt" and check every classroom to see if teachers are complying. However, he said if a parent takes a complaint far enough, there will be repercussions for staff.
The New Brunswick Union of Public and Private Employees, which represents school psychologists and social workers, has said its members will not ignore a child's request to be referred to by a different name and pronoun, regardless of what the minister says.
President Susie Proulx-Daigle said the union will grieve any disciplinary action that would result from professionals respecting a child's gender expression.
The Canadian Civil Liberties Association has also said this change violates children's rights and they would support any legal challenge to it.
Minister's version can be challenged in court
Wayne MacKay, professor emeritus of law at Dalhousie University in Halifax, said not having a rule explicitly in writing does not shield it from a court challenge.
He said a legal challenge can be made to the existing policy on the following two bases.
It can be challenged to seek a legal ruling on whether the policy can be read as broadly as the minister says.
Or, any individual or group interested in launching a challenge can wait until the policy is applied, as the minister suggests, and a teacher is sanctioned for respecting a child's expression of gender identity in an unofficial context.
MacKay said when children's rights and parental rights collide, the Supreme Court of Canada has ruled that children's rights take priority.
"If this were to go to court, the court would need to interpret all of this in a way that would, in their view, best serve the interests of the child," he said.
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