N.B. judge rules against school district in challenge to gender-identity policy

A judge has decided members of the Anglophone East district education council lack standing to argue New Brunswick's Policy 713 violates Charter rights. (Shane Magee/CBC - image credit)
A judge has decided members of the Anglophone East district education council lack standing to argue New Brunswick's Policy 713 violates Charter rights. (Shane Magee/CBC - image credit)

A New Brunswick judge has ruled against a Moncton-area school district in its lawsuit against the provincial government that alleged changes to a gender-identity policy violate the rights of students.

Court of King's Bench Chief Justice Tracey DeWare ruled the Anglophone East district education council lacks standing to argue that Policy 713 violates Charter language rights, life and liberty rights and equity rights.

Standing is a legal term for the ability to bring a case to court.

"This Court has concluded that none of the Plaintiffs' individually nor collectively have standing, either as of right or public interest standing to advance a claim that the adoption and implementation of Policy 713 infringes their Section 16.1 Charter rights," DeWare says in her 67-page decision issued on Friday.

The plaintiffs in the case were the education council, chair Harry Doyle and member Dominic Vautour.

Hours after the decision was issued, the province said it had filed paperwork in court asking a judge to dissolve the education council. CBC News has yet to receive a copy of that paperwork.

Judge says issues can be decided in CCLA case

The judge did not rule on the substance of the education council's allegations, though DeWare wrote she accepts "there exists a serious justiciable issue" regarding the policy's potential impact on gender diverse youth.

The judge ruled that a separate case over Policy 713 filed by the Canadian Civil Liberties Association would instead be a more appropriate means for deciding the questions the council raised.

"In the present matter, there are realistic and alternative means which favour a more efficient and effective use of judicial resources," DeWare wrote.

Hearings in the civil liberties case took place Thursday and Friday in Burton, outside Fredericton.

Council expresses 'shock and disappointment'

In a statement, the education council expressed "shock and disappointment" over the decision. The council did not provide an interview.

The statement did not directly say if the district education council would seek to appeal the decision but said it will "meet to consider its options."

"Despite this setback, the Anglophone East DEC remains committed to advocating for policies and practices that support all students," the statement said.

"The DEC will continue to explore all available avenues to ensure that schools remain places where every student can thrive without fear of discrimination or exclusion."

The province did not provide an interview about the decision.

The judge ruled that an education council member, Dominic Vautour, can still sue over whether the policy violates his freedom of expression. However, Vautour would have to file a new case over that issue.


Education Minister Bill Hogan has said he will seek to dissolve the education council over its spending on the case. (Jacques Poitras / CBC)

The case centred on changes Education Minister Bill Hogan made to Policy 713 last year.

The province updated Policy 713 to require school staff to seek the consent of a parent when a student under 16 wants to use a new name or pronoun informally at school.

The education council has gone to court challenging the policy, arguing it violates the rights of students.

The district alleged the changes to Policy 713 violated the Charter rights of gender diverse students, specifically rights to equity and to life, liberty and security of the person. It also alleged the policy violates the right to freedom of expression for teachers and other school personnel.

The case also alleged the policy violates Section 16.1 linguistic rights.

The judge's ruling calls the education council's interpretation of that section in the case "beyond reason" and "quite novel."

"There is absolutely nothing in Policy 713 that deals with language, impacts the language rights of gender diverse students nor school personnel," DeWare wrote.

"Gender diversity is certainly an element of culture in a general sense; however, it is not, in the circumstances of this policy, connected to language."

The provincial government has begun the process to dissolve the education council, with the minister citing its spending on the case as a misuse of education funds.

It's unclear when a judge will consider and rule on the dissolution request.

Read the judge's full decision here: