New Brunswick election hangs in the balance as government faces challenge over gender-identity rules

The political fallout from New Brunswick’s changes to self-identification rules in the classroom is ramping up in provincial courtrooms, with legal challenges arguing that the policy harms gender-diverse students and violates their right to equality under the Charter.

Adding to the controversy, at least four district education councils are defying the provincial directive to implement the new rule to restrict youth under 16 from choosing their own pronouns without parental consent.

The moves by the councils have antagonized a beleaguered Progressive Conservative government and prompted it to threaten to disband and fire the councils’ elected officials.

Restricting the age that students may decide their first names and pronouns in schools has also blown up as a cultural, political and legal debate in Alberta, and in Saskatchewan, where Premier Scott Moe has pre-empted a constitutional challenge to a similar policy by using the Charter’s notwithstanding clause.

In New Brunswick, the dispute has emerged as perhaps the key issue in the next election, set to be held on or before Oct. 21.

For the past several weeks, Premier Blaine Higgs and Education Minister Bill Hogan have been doubling down on the changes they made to sexual-orientation and gender-identity rules in schools, otherwise known as Policy 713.

Meanwhile, a third of the PC caucus, some of whom are ministers from strong conservative regions, have either ditched the party or decided not to run again.

St. Thomas University political-science professor Jamie Gillies said the PC brand is clearly broken in New Brunswick. He said Mr. Higgs has alienated a quintessential voting block of moderate Progressive Conservative constituents with “a kind of a petulant anger around Policy 713 – to the detriment of all other policies.” Yet he says it’s still unclear how that will manifest at the voting booth.

“At a certain point, I think a lot of voters will go, ‘Well, at the end of the day it’s just bigotry. It’s nothing more than bigotry,’ ” he said.

“They’re not really Progressive Conservatives running this next election. And the big question out of all of this is: What happens to those Progressive Conservative voters that have been completely turned off by this episode and kind of far-right populist politics?

“Do they stay home? Do they hold their nose and vote for the Liberal Party? Or do they still support their own party? That’s the big X-factor.”

The policy, roiling in the local media for more than a year, spurred parallel lawsuits that are winding through separate Court of King’s Bench of New Brunswick actions that challenge the constitutionality of the provision.

Moncton East District Education Council, led by long-time educator and former Liberal minister Harry Doyle, has emerged as a crusader of sorts for LGBTQ students’ rights. He and the council have openly defied repeated directives from the province to enact the new gender pronoun rules in “a game of chicken with the Education Minister,” said Mr. Gillies.

The district education council adopted its own policy last September that thwarts the changes to Policy 713. The council requires school personnel to use a student’s choice of name and pronouns regardless of parental consent.

Since last fall, Mr. Hogan has repeatedly demanded that the district education council repeal its policy and adopt one that reflects the government’s position. This spring, he threatened to quash the district policy unless it was immediately removed.

Instead, Mr. Doyle and the council filed a court injunction against the province. And in a cheeky move, they repealed their own policy and simply replaced it with a word-for-word replica.

“As expressed a number of times to the minister, we believe that Policy 713 violates the Canadian Charter of Rights and Freedoms and that its application would cause irreparable harm to our students,” wrote council chair Mr. Doyle to Mr. Hogan on April 25.

A few days later, Mr. Doyle and the education council launched a lawsuit against the province. They argue that the changes to Policy 713 are contrary to the Charter, and the provincial Human Rights Act, Education Act and language laws.

In response, Mr. Hogan fired off a letter to Mr. Doyle accusing him and the council of misappropriating public funds. He demanded the council stop spending monies on litigation and return the cash it’s already spent or he will disband the council, effectively firing them all.

“I have made it clear that I believe the leadership of the Anglophone East District Education Council is using funds in an irresponsible manner,” he said in a statement provided to The Globe and Mail earlier this month. He added that the council is diverting nearly $300,000 from classrooms to out of province lawyers to “fight the rights of parents to be informed about their kids under 16.”

“They have left me no options but to commence the process for dissolution of the Anglophone East DEC.”

The dispute returns to court Tuesday where a judge will consider a motion from the province and Education Minister to dismiss the case. The province argues that the school district has no standing and is therefore ineligible to proceed with the lawsuit.

The education councils of New Brunswick’s three francophone districts also received a letter from the Education Minister ordering them to fall in line and remove their own policies that defy the government, said Alain Sirois, spokesman for the District scolaire francophone du Nord-Ouest.

Meanwhile, another lawsuit, filed by the Canadian Civil Liberties Association with seven intervenors in support of LGBTQ rights is slowly proceeding in the Court of King’s Bench in Fredericton. Most recently, CCLA lawyers were in court last week challenging the provincial government’s withholding documents that explain why Mr. Hogan made changes to Policy 713.

The province’s lawyer, Stephen Hutchison, revealed in court that not all documents had been provided, nearly derailing a two-day hearing. The case returns to court in July.