Unions make case to join Policy 713 fight

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Three unions have made their case to join the legal fight against the province over its controversial changes to Policy 713, which sets gender rules in public schools.

In the Court of King’s Bench in Fredericton on Monday, lawyers for the New Brunswick Teachers’ Federation (NBTF), New Brunswick Union (NBU), and CUPE Local 2745 argued that they should be allowed to intervene in the case launched last year by the Canadian Civil Liberties Association (CCLA).

All three, at least in part, represent different groups of school workers.

CCLA wants the court to quash the self-identification section of Policy 713, which requires trans and non-binary students under the age of 16 to have parental consent for their chosen names and pronouns to be used in classroom, extracurricular and co-curricular settings. CCLA alleges the changes violate the Education Act, the Human Rights Act, and the Charter of Rights and Freedoms.

The unions’ central argument was similar: that the court has to consider how the policy changes affect school staff, including their right to freedom of expression, and not just how it impacts students.

And there’s no assurance that CCLA’s arguments will include workers, they argued.

“The question is whether you exercise your discretion to hear the unions on the constitutionality and reasonableness of a policy that their members are required to comply with, and are required to apply to students,” said lawyer John MacCormick, part of a team representing NBTF and NBU.

The province, meanwhile, argued that CCLA’s case is focused on students, not staff, and barely mentions them.

Clarence Bennett, a lawyer for the province, argued that the unions should be excluded from the case because they have another way to challenge the Policy 713 changes – namely, via workplace grievances.

Allowing them to participate as interveners would represent a big “expansion” of the scope of the case, Bennett said. That was a point Justice Richard Petrie repeatedly questioned the union lawyers about too, noting that the CCLA’s case largely focuses on how the policy changes impact students – not teachers or parents.

MacCormick, however, noted that several passages in CCLA’s submission reference school staff, and the impact of the Policy 713 changes.

Bennett wasn’t buying it, which led Petrie to ask him why the province thinks the policy changes won’t impact school staff.

“If (the unions) have an interest, and of course they do have an interest in their members, they go to grievance arbitration for that. There’s nothing stopping them from filing their own constitutional or Charter challenge with respect to how (the policy changes) impact teachers, or whatever,” Bennett replied.

The NBTF confirmed a grievance over the Policy 713 changes has been filed; Gallant said CUPE hasn’t filed a grievance, and he didn’t know why.

The appearance by the three unions came a few days after three other groups also applied to intervene in the case. The first of the other three groups is Egale Canada, Alter Acadie, Chroma NB, and Imprint Youth. The second is the Gender Dysphoria Alliance and Our Duty Canada, and the third is Equality New Brunswick and the Wabanaki Two Spirit Alliance.

Benjamin Perryman, the lawyer for the CCLA, was present at Monday’s hearing, and argued that hearing the perspectives of school staff could be helpful for the court. CCLA isn’t opposing any of the intervener applications.

Petrie reserved his decision on the six groups’ intervener applications until at least May 6, warning it may take longer.