New Brunswick: Shame on you and your policy 713 | Marvin Zuker

By Marvin Zuker

Law360 Canada (August 3, 2023, 9:59 AM EDT) --
Marvin Zuker
Marvin Zuker
New Brunswick’s Department of Education and Early Childhood Development recently released a new version of its policy on sexual orientation and gender identity. Policy 713, which has been in place since August 2020, “sets minimum requirements for school districts and public schools to create a Safe and affirming school environment” for all who identify as (or may be perceived to be) LGBTQ+.

Changes relate to the ability of trans students to specify what name and pronouns should be used for them if they are under 16. The province’s education minister, Bill Hogan, told the CBC that school staff “don’t have a choice to comply with [student] wishes, they have to have parental consent” to honour requests around names and pronouns if they under 16.

The policy previously mandated that a plan be put into place in the classroom to support a gender non-comforting in “managing the use of the preferred name in the learning environment.”

The new policy mandates that the student seek counselling with the goal of coming out to their parents.

The policy reads: “If it is not possible to obtain consent to talk to the parents, the student will be directed to the appropriate professional (i.e., school social worker, school psychologist) to work with them in the development of a plan to speak with their parents if and when they are ready to do so.”

This new policy removes reference to gender identity, opening the possibility that trans kids will be barred from playing on the school sports team of their choice. Children must have the opportunity to develop their own sense of sex, gender, gender identity and gender expression, and the autonomy to determine what if any surgical procedures they want or need to help them achieve embodied coherence.

The motivation for these procedures often relates to the “social emergency” of immediate indeterminacy of the infant’s sex/gender. There has been recently and now tragically, a major rise in hate crimes, particularly those targeting the 2SLGBTQI+ community, certain religious groups and racialized or ethnic communities in Canada.

According to data by Statistics Canada (2023), hate crimes motivated by sexual orientation rose 64 per cent from the previous year to a record high of 423 incidents. Hate crimes targeting a given religion rose 67 per cent (884 incidents) and those targeting race or ethnicity rose six per cent (1,723 incidents).

It is time the government effectively implements the UN Convention of the Rights of the Child (UNCRC). In June 2022 the Canadian government received the Concluding Observations of the UN Committee on Canada’s Fifth and Sixth Reports on the UNCRC.

Canada was one of the first states to sign and ratify the UNCRC, one of the most universally ratified UN treaties. The Concluding Observations expressed serious criticisms of Canada’s failure to more fully implement the convention and provided detailed and general recommendations for areas of significant improvement including recommendations that it described as needing urgent measures. More specifically, the UN committee expressed to Canada its concerns with the lack of national implementing legislation for the UNCRC.

Under the UNCRC, all children under the age of 18 are full rights bearers, entitling them to have those rights advanced and protected in court proceedings, including cases where there are allegations of family violence and/or resisting-refusing contact.

Children’s rights are found in Canadian domestic laws, including the Charter, and in Canada’s international obligations, particularly the UN Convention and the UN Committee on the Rights of the Child’s General Comments. Let’s say you have a 10-year-old, fearful about what will happen to her if she cannot get the support she needs from her school?

Starting around the age of 2 years old, she began telling everyone who she is. When she was 3-and-a-half years old, with her parents’ support and after researching gender dysphoria and consulting with both her therapist and pediatrician, she socially transitioned. That means you started using she/her pronouns and letting her dress as a girl.

That was seven years ago, and she hasn’t wavered at all in knowing who she is. As parents, you would think the most important thing is that she knows that you love her, you trust her, and you will do whatever it takes to ensure that she has every opportunity to grow and develop as her true self regardless of her gender identity.”

Policy 713 clearly takes that opportunity away from her. 

According to The Trevor Project, the leading U.S. suicide prevention organization for lesbian, gay, bisexual, transgender, queer and questioning (LGBTQ) youth. A poll released Jan. 19, 2023, found, in part, that schools have increasingly become a battleground for debates around respecting students’ identities and pronouns, censoring LGBTQ-inclusive curriculums, and banning books. New policies that will ban doctors from providing gender-affirming medical care to transgender and nonbinary youth make 74 per cent of transgender and nonbinary youth feel angry, 59 per cent feel stressed, 56 per cent feel sad, 48 per cent feel hopeless, 47 per cent feel scared, 46 per cent feel helpless and 45 per cent feel nervous.

New policies that will ban transgender girls from playing on girls’ sports teams and transgender boys from playing on boys’ sports teams make 64 per cent of transgender and nonbinary youth feel angry, 44 per cent feel sad, 39 per cent feel stressed and 30 per cent feel hopeless.

New policies that require schools to tell a student’s parent or guardian if they request to use a different name/pronoun, or if they identify as LGBTQ at school make 67 per cent of transgender and nonbinary youth feel angry, 54 per cent feel stressed, 51 per cent feel scared, 46 per cent feel nervous and 43 per cent feel sad. Fifty-eight per cent of LGBTQ youth, including 71 per cent of transgender and nonbinary youth, feel angry about new policies that ban teachers from discussing LGBTQ topics in the classroom.

Among trans youth, 59 per cent feel sad and 41 per cent feel stressed. Sixty-six per cent of LGBTQ youth, including 80 per cent of transgender and nonbinary youth, feel angry about policies that will ban books in school libraries that discuss LGBTQ topics. Nearly half of LGBTQ youth, including 54 per cent of trans youth, also felt sad about these book bans.

The Trevor Project tracked a record number (more than 220) of anti-LGBTQ bills that were introduced across the country in 2022, most of which specifically targeted transgender people.

As a result of anti-LGBTQ policies and debates in the last year, transgender and nonbinary youth reported that they have had a range of harmful experiences, including cyberbullying or online harassment (45 per cent); stopped speaking to a family member or relative (42 per cent); didn’t feel safe going to the doctor or hospital when I was sick or injured (29 per cent); a friend stopped speaking to them (29 per cent); bullying at school (24 per cent); their school removed Pride flags or other LGBTQ-friendly symbols (15 per cent); and physical assault (10 per cent). Among all LGBTQ youth, one in three reported cyberbullying or online harassment, one in four reported that they stopped speaking to a family member or relative, and one in five reported bullying.

Children must believe in themselves and start doing something. Young people have to look for people that might support them. All we need is a tribe, a small tribe where someone or two people care. The Department of Education and Early Childhood Development is truly a misnomer. The minister is sadly wrong. Public schools have as their mission providing opportunity for all students. Public schools are more than physical structures. The ideal is that education is important for individuals and for society. Education is the road to equality and citizenship. Policy 713 is an attack on public education.

To get to universal school choice, you really need to operate from a premise of universal public school distrust. Is this the aim of the minister? Erode trust by stoking fear and division, including attempting to pit parents against teachers? Teachers should have the freedom to teach. And students should have the freedom to learn.

This is the first instalment of an eight-part series.  

Marvin Zuker was a judge of the Ontario Court of Justice, where he presided over the small claims, family and criminal courts from 1978 until his retirement in 2016. He is a professor at Ontario Institute for Studies in Education/University of Toronto, where he has been teaching education law for 42 years. Zuker is the author and co-author of many books and publications, including The Law is Not for Women and The Law is (Not) for Kids.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author's firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.


Interested in writing for us? To learn more about how you can add your voice to Law360 Canada contact Analysis Editor Peter Carter at Peter.Carter@lexisnexis.ca or call 647-776-6740.