This case was about discrimination against trans, non-binary, and gender-diverse students. LEAF was granted leave to intervene before the Court of King’s Bench of New Brunswick.
FACTS
In June and then August 2023, the New Brunswick government changed its policy on sexual orientation and gender identity (Policy 713). The updated policy required parental consent before the chosen name or pronouns of a trans or non-binary student who is under 16 can be used by school personnel in the context of classroom, extracurricular, and co-curricular activities.
The new Policy 713 increased risks of harm for trans youth. The New Brunswick Association of School Psychologists stated this clearly: “[m]isgendering transgender and gender diverse people increases risk of self harm, suicidal ideation, and other mental health concerns. As such, it is imperative that students’ names and pronouns be respected and used in the school environment regardless of their age.” In addition, repeatedly using the wrong name when addressing someone, especially publicly and in front of their peers, is a profoundly distressing experience for that person that can cause lasting harm to their mental health. New Brunswick doctors have stated that the “loss of autonomy and control” associated with being called the wrong name will increase student dropouts, victimization, and suicidality.
The Canadian Civil Liberties Association (CCLA) brought an application to the Court of King’s Bench of New Brunswick, arguing that the process leading to the changes to Policy 713 was flawed and procedurally unfair. They also argue that the changes are contrary to the legislated rights of 2SLGBTQIA+ students to inclusion and a “positive learning and working environment” protected by New Brunswick’s Education Act, and that the changes treat 2SLGBTQIA+ students differently in the provision of educational services, based on their gender identity or gender expression, which is prohibited by New Brunswick’s Human Rights Act. Finally, they argue that Policy 713 infringes the Charter rights to equality (section 15), the right to liberty and security of the person (section 7), and the right to freedom of expression (section 2(b)).
ARGUMENTS
LEAF planned to argue that applying substantive equality to the equality rights (section 15) analysis in this case requires the Court to consider the specific impact of the Policy on trans and non-binary students. The students who would be disproportionately and harmfully impacted by the Policy were trans, non-binary, and gender-diverse youth under the age of 16 who were not safe, were anxious and/or afraid of seeking, or were unable to obtain parental consent for the use of their chosen names or pronouns.
We also planned to argue that the Court must consider the best interests of the child as guaranteed under Canadian and international law and the prospect of family violence or other forms of abuse. Policy 713 could have, at least in some instances, required a teacher (who has a duty not to harm their students) to expose a student to family violence or other forms of abuse.
OUTCOME
On December 19, 2024, the Province of New Brunswick advised the Court that Policy 713 had officially been replaced. The new Policy is a compromise between the original version and the 2023 revised version. It does, however, restore trans and non-binary youth rights to a significant degree.
The CCLA and the Province signed a Notice of Discontinuance in early January 2025.
Download LEAF’s brief on our motion for leave to intervene.
LEAF is grateful to Mélanie Power, Morgan Camley, Kay Scorer, Kathryn Gullason, and Nicole Tzannidakis of Dentons Canada LLP, counsel to LEAF in this case. LEAF is also grateful to Lauren Ogden (McInnes Cooper) local counsel for LEAF in this case.
LEAF’s interventions are guided, informed and supported by a case committee with expertise in the relevant issues. We are very grateful to the CCLA v. NB case committee members (in alphabetical order): Gillian Calder, Jennifer Koshan, Samuel Singer, and Adriel Weaver.
