N.B. child advocate says LGBTQ policy in schools violates Charter rights of kids

FREDERICTON -

Changes to New Brunswick's policy on sexual orientation and gender identity in schools violate the Charter rights of children, the province's child and youth advocate said Tuesday.

Kelly Lamrock released his findings in a report of nearly 100 pages, concluding that the Education Department did not seriously consider the legal consequences of its changes to Policy 713.

New Brunswick's government made several revisions in June, one of which requires children under 16 to have parental consent before they can officially change their preferred first names or pronouns at school.

Lamrock said forcing any non-binary and transgender students to use a name they don't identify with "is a violation of their protected rights under the Human Rights Act and the Charter of Rights and Freedoms."

Parents have an important role to play in their child's development, but the government's changes were vague and created confusion, he said. "The parent has a right to teach their values to a child," Lamrock told reporters after he released his report. "The parent does not have the right to a state apparatus to force the child to live by their values."

Premier Blaine Higgs has defended the changes to the LGBTQ school policy, arguing that parents have the right to know whether their children are questioning their gender identity. But Higgs's government has faced strong backlash, including within his own cabinet and from Prime Minister Justin Trudeau.

Dissenting members of Higgs's Progressive Conservatives voted with the opposition in mid-June to pass a motion asking Lamrock's office to review the changes to Policy 713.

The result was Tuesday's report, in which Lamrock says the policy changes effectively veto a child's decision on what pronouns or names they can use in school until they are 16. The revisions, he says, have left the Department of Education, teachers and administrators legally vulnerable.

Higgs did not return a response for a comment on Tuesday.

Education Minister Bill Hogan, meanwhile, said he had no immediate comment. "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 in an emailed statement.

In his report, Lamrock says that it's not bigoted for a parent to want to know about major decisions taken by their children, including name or pronoun changes. "Equally so, it is not extreme to want children to have privacy and autonomy when they are old and mature enough to exercise it."

Lamrock says that over the past two months he reviewed more than 400 submissions from parents, students, teachers and government officials. He proposes 24 recommendations to revise the policy so that it is in line with the Charter and other laws, including that the government "restore language explicitly restricting school personnel from outing students without their permission."

Higgs's government revised the policy so that only students 16 and older could have their preferred names or pronouns changed on official school records, such as class lists. Lamrock says that change should remain.

However, Lamrock says that younger students should be able to choose how they are informally addressed by teachers and school staff. School principals, he adds, should be responsible for developing plans in consultation with psychologists and teachers for primary school students who want to informally change their names and pronouns.

"Any concept of parental rights which starts and stops with asserting that parents should have unlimited control over the child is an analysis too limited to stand," the report says.

"In fact, much of what we call 'parental rights' stem from the child's rights. The parent does not have an absolute right to control a child."

He also recommends that Policy 713 be restored with language protecting students' right to participate in activities consistent with their gender identity.

Liberal Leader Susan Holt said Tuesday her party would like to see the government commit to immediately adopting the recommendations.

"We believe that teachers and parents and students deserve clarity prior to starting school in September, and so we are looking for an urgent response from the government," she said.

David Coon, Green leader, said it was helpful to have a legal framework for the recommendations made by Lamrock. "It provides tremendously clear guidance," he said.

Gail Costello, with New Brunswick LGBTQ advocacy group Pride in Education, also applauded the report.

"I think it's time for the premier to take a step back, trust his own employees, trust Kelly Lamrock, trust the professionals, and this is a chance to back away from this and do what's best for kids," she said.

This report by The Canadian Press was first published Aug. 15, 2023.

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