The Court of King’s Bench of New Brunswick granted the Canadian Civil Liberties Association (CCLA) a public interest standing to challenge the policy change carried out by the Minister of Education and Early Childhood Development. This case concerns Policy 713, which involves the requirement of parental consent to the formal use of a preferred first name for transgender or non-binary students under the age of 16.
The court held that this case involves a serious justiciable issue, namely whether the Minister’s decision to enact policy change constitutes a breach of procedural fairness and a violation of the Human Rights Act and the Canadian Charter of Rights and Freedom. The court also held that CCLA has a genuine interest involving children’s rights and the rights of the 2SLGBTQIA+ with CCLA’s past experience as a public interest party with respect to matters involving the rights of young people and marginalised groups and CCLA’s publications in blog posts and articles relating to discrimination against gender non-conforming individuals. Lastly, the court held that CCLA has a reasonable and effective means to bring the challenge to court because denying the CCLA’s motion would require the affected children to bring a court challenge, with parental assistance and public scrutiny when gender identity is among the most “intimate and private” matters to deal with, especially for children under the age of 16. The court further held that without CCLA, it is unlikely that any affected citizen could challenge the Minister’s decision with sufficient financial and legal resources and without being deterred by public scrutiny and potential harassment.
Harini Sivalingam, Director of the Equality Program at the CCLA, stated that CCLA would bring this challenge to a hearing as quickly as possible to end the discrimination against vulnerable young people caused by the changes to Policy 713.
Without standing, a party cannot bring suit in court. Canadian courts recognise the notion of public interest standing that “allows individuals or organisations to bring cases of public interest before the court even though they are not directly involved in the matter and even though their own rights are not infringed.” The courts will grant a public interest standing if the courts satisfy that the party, with a genuine interest in the matter, has a reasonable and effective means to bring a serious justiciable issue to court.
Relatedly, the Legislative Assembly of Saskatchewan enacted a similar Parent’s Bill of Rights in October, requiring students under 16 to obtain parental consent before teachers and school staff use their “gender-related” preferred names and pronouns.
