Recent changes to a New Brunswick Department of Education policy actually violate the provincial Human Rights Act, the Education Act and children’s charter rights, says the province’s Child and Youth Advocate, Kelly Lamrock.

The advocate released his report into recent changes to Policy 713 on Tuesday, and it includes 20 recommendations to reform the policy, including that it, “affirm the universal right of all students, consistent with their capacity and whether for the purposes of gender identity or not, to choose how they wish to be addressed.”

The original Policy 713 required teachers to use students’ preferred names and pronouns, and required informed consent before teachers would contact a students’ parents about their gender identity. The revisions implemented by education minister Bill Hogan this summer put an age limit on that protection, requiring them only for students aged 16 and up.

Lamrock’s recommendations also include a call for “language advising school personnel not to misinform or mislead parents, but instead affirmatively advise parents of the limits of school disclosure and the tools parents have for talking with their children about issues of gender identity.”

The 97-page report is entitled, “On Balance, Choose Kindness”, and summarizes feedback and interactions with experts, student and parents. It also provides legal analysis, and lays out an “advocate’s version” of the beleaguered policy.

“It’s good to have a lawyer actually go through and lay this out,” said Memramcook-Tantramar MLA Megan Mitton about the report on Tuesday afternoon. “I think that there are some key recommendations there, such as needing to respect the right of children to be called what they want… It also advises to restore language that was providing protection that was removed.”

Memramcook-Tantramar MLA Megan Mitton visited Sackville parent Patricia Kelly Spurles outside the New Brunswick legislature during a silent protest over changes to Policy 713 this summer. Photo: contributed

Mitton notes that many of the recommendations call for guidance and resources about how teachers can handle a variety of situations, such as determining the capacity of kids to decide their preferred name for themselves (the rule of thumb should be grade 6 and up, says Lamrock), respecting kids’ privacy while not misleading parents, and providing “tools to the students in talking with their parents as an important and recommended accommodation.”

Lamrock’s review was requested by a Liberal opposition motion in the provincial legislature, and approved in a controversial vote where eight PC MLAs broke ranks and voted with the Liberals and Greens in calling for Lamrock’s review.

“While we were exceptionally disappointed with the work of government, driven by the minister and the premier, to amend this policy, we are satisfied with the work of the advocate,” said Liberal leader Susan Holt on Tuesday afternoon. “We believe that it is the right thing to respect and identify and strengthen and provide clarity to this important policy as soon as possible before the school year starts.”

Another key recommendation in Lamrock’s report is not directed at the government, but at District Education Councils (DECs). Many DECs, including the Anglophone East DEC, almost immediately passed resolutions restoring the full protections of the original policy 713, shortly after the province’s revised regulation come into effect in July. Recently, education minister Bill Hogan told reporters those policies might be out of order.

Lamrock’s report provides a model DEC policy which elaborates on the revised Policy 713 in keeping with “their statutory capacity to make policy not inconsistent with Departmental policy.” That includes instructions for school staff not to disclose a student’s request for informal use of preferred names without a request from the student, but also a directive for staff not to mislead parents. Instead, teachers are asked to “advise parents of the student’s rights under the Right to Information and Protection of Privacy Act.”

In several places in his report, Lamrock references the idea that the divide in opinion on the issues surrounding Policy 713 is not actually as great as it seems. “There may be more common ground in the discussion among people of good faith than the public debate reveals,” writes Lamrock. But he also noted that the review garnered interest beyond the borders of New Brunswick, with a number of submissions coming from groups outside the province.

Both Premier Blaine Higgs and Education Minister Bill Hogan have told reporters they will take time to read the extensive report before weighing in. MLA Megan Mitton is not optimistic that they will heed Lamrock’s advice, and thinks the conflict over the policy might eventually involve court battles.

“Unfortunately, I think that the Higgs government is not afraid to go to court and just sort of draw things out waste people’s time, waste people’s money,” said Mitton. “And we know that some people were wanting this to be a test case, to see if they can do this type of thing in other provinces. And so I’m concerned that might be part of the game plan for the Higgs government.”