Advocate says N.B.'s gender-identity policy violates children's rights
Kelly Lamrock was ordered to hold consultations on controversial Policy 713 for province's schools
Child and youth advocate Kelly Lamrock says changes to a gender-identity policy for the New Brunswick school system violate the provincial Human Rights Act, the Education Act and children's charter rights.
In June, Education Minister Bill Hogan said he changed Policy 713 on sexual orientation and gender identity to make it mandatory to deny a request from a child under 16 to use a specific name or pronoun unless parents consent.
After a review of the policy, Lamrock said Tuesday that parents do have a right to guide their children.
But the revised policy grants parents an effective "veto" on their child's identity until they're 16, and that violates children's rights to privacy, equality and accommodation, said Lamrock, who is a lawyer and former education minister.
He said children's rights can't be ignored and have to be measured against parental rights.
"The parents do not have the right to a state apparatus to force their child to live by their values," he said in a news conference.
Premier Blaine Higgs said later that he plans to read the report over the coming days.
"I'm sure at the end of it all there's a role for parents in raising their kids in every aspect," he said. "Maybe there's something in [the report] that will help us move along, but my belief in the role of parents is certainly as it has always been."
Lamrock recommended that staff verbally respect all students' pronouns without need for parental consent if they're in Grade 6 or higher.
He suggested that if children under Grade 6 request an informal name or pronoun change, it should be up to the principal to decide if the child has enough capacity to make that decision. The principal could make a plan to help the child connect to their parents, and could consult mental health professionals if in doubt, Lamrock recommends.
Changes to official records, such as report cards, for kids under 16 have always required parental consent, and Lamrock did not recommend changes to that rule.
Lamrock's recommendations are not binding, so there's no guarantee the province will change the policy as he suggested. However, he said his recommendations can provide more certainty for district education councils making their own comprehensive policies.
Hogan previously said provincial policies take precedence, but Lamrock disagrees in this case, saying Hogan's policy is vague and unclear.
"Provincial policies takes precedence where provincial policy is clear," he said. "Where a policy is vague, the districts can fill in the details.
Lamrock wrote that parents do have a right to be able to guide their children in a manner appropriate to the child's age, maturity and development. The current policy, however, in attempting to maintain parental rights, places too many limits on children's rights, he said.
In an emailed statement, Hogan said he is not ready to comment on Lamrock's findings.
"I will be taking the necessary time to review Mr. Lamrock's report and will provide further comments only after my review is complete," he said.
Parents, experts supported parental rights but not Higgs's policy
In the spring, in an opposition motion passed by the legislature, Lamrock was ordered to conduct full consultations and review the changes Hogan made to Policy 713.
Over two months, he spoke with legal, education, mental health and medical experts, as well as parents and students. He released his report Tuesday, making 24 recommendations and suggesting new wording to the policy that he said would not break the law.
Lamrock said he heard lots of support for parental rights. In fact, no one he heard from spoke against parents, he said.
"No one opposed parents playing a large or significant role," he said. "Or to be excluded or deleted in any way."
Higgs and Hogan previously said the goal of the changes was to maintain a parent's right to know what's going on with their children in school. Hogan has previously said the goal is also to give parents power to stop children from using certain pronouns.
"If a parent doesn't want their child to be referred to as 'they,' would prefer for them to be referred to as 'she' or 'he,' that's a parent's right," he said on May 19.
Lamrock said some people who were adamantly in favour of Higgs approach and parental rights paused once they understood what the current 713 actually asks teachers to do. Lamrock gave an example of a doctor who said he's in favour of the current policy, but admitted he would never deny a child's request for a specific pronoun, even if their parents requested that.
"It is not bigoted for a parent to want to know about their child's major decision," Lamrock wrote in his 90-page report. "It is not extreme to want children to have privacy and autonomy when they are mature and old enough to exercise it."
Lamrock also said some parents who didn't want the school to use their child's chosen pronouns said "the state does not own my children."
"That is absolutely true … I must add however that we as parent also don't own our children. No one owns children," Lamrock said.
Policy 'performative,' 'moot'
Hogan's changes made it mandatory to send children under 16 to a school psychologist or social worker if they don't want to include their parents, to come up with a plan to involve those parents.
Lamrock emphasized the response from school psychologist and social workers. Those professionals said if a child was referred to them, the first thing they'd do is respect their request to use a certain name or pronoun. They said denying the child's request would automatically bring their professional competence into question because it causes harm.
Lamrock said Hogan's policy is "somewhat performative," because it can't be followed by the professionals it mentions.
"[Its] only tangible outcome is to inflict further bureaucracy … until it's rendered moot," he said.
In addition to the parental notification changes, Hogan added a minimum requirement for universal change rooms, on top of the already-mandated universal washrooms. And he removed any reference to gender identity in the section that deals with extracurricular activities.
Lamrock's report focused on parental notification, but he did recommend that "gender identity" be added back, maintaining children's right to participate in sports teams that match how they identify.
He also recommended the policy provide guidance on accessibility and quality of private universal washrooms and change rooms.
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