Judge denies unions' request to join gender-identity lawsuit, allows all others

All organizations that asked to provide evidence in the lawsuit challenging New Brunswick's gender-identity policy have been approved, except the three unions representing school psychologists, teachers and school support staff.

The lawsuit was filed by the Canadian Civil Liberties Association to challenge the legality and constitutionality of changes to Policy 713.

The changes in question require parental consent before school staff can use a child's chosen name and pronoun, if they're under 16.

In a decision made Wednesday, Justice Richard Petrie allowed the following organizations to join the suit as interveners and add evidence, with conditions:

• Local LGBTQ-support organizations Chroma NB, Alter Acadie, Imprint Youth and national group Egale Canada.

• Our Duty Canada and the Gender Dysphoria Alliance, which are advocacy groups that represent parents whose children are "captured by gender ideation," and support the parental consent rule.

• The Wabanaki Two-Spirit Alliance and Equality New Brunswick, organizations that represent the interests of Indigenous two-spirit people.

The judge heard from these three unions last week and denied their request to join the suit:

• New Brunswick Union of Public and Private Employees representing school psychologists and social workers

• The New Brunswick Teachers' Federation

• The Canadian Union of Public Employees, Local 2745 representing school support staff.

Joël Michaud, the lawyer for the New Brunswick Teachers' Federation and the New Brunswick Union, says they have six days to appeal this decision. (CBC)

In his decision, Petrie said he is denying the unions' request to join the lawsuit partly because for staff, this is a "workplace issue."

The unions said they want to argue whether the policy "forces" their members to violate the students' Charter rights, and also make arguments about how the policy affects staff's freedom of expression.

Petrie said this case is about children's rights and freedom of expression, so adding the union perspective would be "a significant and unwarranted expansion of the proceeding."

There's also a principle called "exclusive jurisdiction," in labour law, which dictates that workplace issues should be resolved by labour adjudication with few exceptions.

The teacher and school psychologist unions have already filed policy grievances against the changes, but they argued that the adjudicator would probably be guided by whatever decision the court makes about the policy, so they want to be part of the process.

Petrie said the union didn't give enough evidence to warrant an exception to a well-established rule.

Because they're a private interest group, with only a personal interest in the case and intending to advocate for their own members, Petrie also denied them "friend of the court" status. That status would have allowed them to provide limited arguments.

The province did not take a position against any of the interveners, except to challenge the unions. Petrie said the province's arguments made a difference to him.

"The province's objections are valid and have influenced my exercise of discretion," he said.

Joël Michaud, the lawyer for the New Brunswick Teachers' Federation and the New Brunswick Union, said his clients haven't instructed him on whether they want to appeal the decision. He said they have six days to decide.

Three other organizations have asked to intervene as friends of the court, and only make arguments without submitting any more evidence. Petrie said he will decide on those at a later date.