Gender-identity policy lawsuit contends with missing documents, scheduling concerns

Seven months after the Canadian Civil Liberties Association sued New Brunswick over its gender identity policy, the province finally handed over the documents required to start the court process in earnest.

That delay, chronic scheduling concerns inthe province's courts and an unusual number of organizations asking to intervene in the case, mean the outcome of the lawsuit is likely far in the future.

Last year, Education Minister Bill Hogan changed education Policy 713, adding a requirement for parental consent before school staff can use a child's chosen name and pronoun. The rule applies to students under 16andto all uses of students' pronouns, whether verbal or official.The previous policy only required parental consent for changes to official records,such asreport cards.

The civil liberties association sued the province in September, claiming the policy is illegal and unconstitutional. The association says this policy takes away students' "autonomy over decisions of fundamental personal importance."It alleges the policy is againstthe Education Act, the New BrunswickHuman Rights Act and unreasonably limits a child's right to self expression and safety.

But before lawyers can argue these issues, the province hasto hand over everything Hogan relied on when creating the new policy. The two boxes of documents exchanged hands Thursday afternoon in Fredericton, but not before theirmonths-long absence caused concern in court.

Justice Richard Petrieheardthree ofthe nine intervener applications filed by different advocacy organizations and2SLGBTQ+service providers on Thursday.

The issue of the missing records was often referred to by the judge, the association'slawyer and the interveners.

Petriesaid it's difficult to decide whichinterveners actually have something to addand which don't, when he doesn't know what evidence is coming from the provinceor what the civil liberties associationhas in reply.

The province did not say why the document release was delayed.

Sheree Conlon, the lawyer representing the civil liberties association, said in an interview Thursday that the long wait for documents is not typical in her experience. She said everyone has to see those documents first, before decidingwhat kinds of arguments and evidence they need to present.

"It informs the backdrop for why the government made the decision that it did," she said. "And that informs the response of all,not just the [Canadian Civil Liberties Association], but the other interveners who want to lead evidence as well."

Conlonsaid the association will need twoweeks to review the documents and decide whether it believes the record is fully complete or if it needs to ask for more information. Once that issue is settled, lawyers would be closer to arguing whether Hogan made the correct decision by creating the controversial policy.

The judge heard from the lawyer representinglocal front-line 2SLGBTQ+organizations. Ontario-based Egale Canada and local advocacy groups Alter Acadie, Chroma N.B.and Imprint Youth want to be added to the case to represent the people directly affected by the policy.

The court also heard from alawyer representing two advocacy organizations he described as "peer support groups"for parents who believe their children'stransitionhas made their mental health worse. Our Duty Canada and the Gender Dysphoria Alliance provide a perspective of parents whobelieve not requiring consent is harmful, the lawyer said.

A lawyer representing the Wabanaki Two Spirit Alliance and Equality N.B. made arguments about how the policy affects Indigenous people specifically and how the "parental rights" movement is tied to the religious right in the United States.

Petrie is scheduled to hear arguments from the three unionsrepresenting teachers, school psychologists and student support workerson Monday. He said he will be reserving his decision about whether to allow any of these groups to interveneuntil a later date.

At the end of the hearing,he emphasized the challengeNew Brunswick courts have been experiencing, saying he and the administrativestaff will do their best to schedule other hearings as quickly as possible.