Liberal government’s proposed revisions to Policy 713 prioritize cisgender comfort over transgender rights

In July and August 2023, the PCNB government issued revisions to the Department of Education’s Policy 713 considerably restricting rights for trans and gender non-conforming youth that had been affirmed in the original policy. The July revision introduced the requirement for parental consent for all name change requests, formal or informal, for students under 16, and removed mention of students’ right to participate in extracurriculars consistent with their gender identity. In a somewhat surprising move considering the other major changes, the revision also added a requirement for all schools to have at least one private universal changing area. The August revision to the policy, issued in response to the New Brunswick Child and Youth Advocate (CYA)’s scathing review of the July 2023 changes, introduced additional “clarifications” that the CYA called “more overtly discriminatory” in a follow-up addendum.

On October 23rd, 2024, two days after the New Brunswick Liberal Party achieved a 31-seat majority, CBC news featured an article describing Premier-designate Susan Holt’s plans to revise Policy 713 immediately upon assuming office. Holt indicates that her government will follow the recommendations of the CYA, which include (but are not limited to): capacity assessments for children in years K-5 requesting informal name and pronoun changes, a clause related to “insincere and improper” requests, and a new list of “don’ts” for school personnel.

I offer here a critical perspective on the proposed changes as a trans person with a background in the development and analysis of 2SLGBTQ+ policy, and as someone with direct experience working with trans youth and their families to have their rights acknowledged and respected in New Brunswick public schools through my past leadership roles with Fredericton Gender Minorities and Imprint Youth Association. While many are celebrating Holt’s announcement as a “win” for trans rights, I see a number of issues with these proposed changes, with the major theme being that they prioritize cisgender (dis)comfort over the rights of trans and gender non-conforming children and the school system’s practical ability to support them.

1. First, these changes continue to single out a protected class of individuals and pathologize the issue of choosing a new name or pronoun related to one’s gender identity. No cisgender student (of any age) is currently required to go through a “capacity assessment” to request an informal name change at school. Unless the Liberal’s new policy is written to apply to all children making informal name change requests, it will continue to mandate discriminatory treatment towards trans and gender non-conforming youth in elementary schools.
2. Capacity assessments are used in situations where a practitioner needs to ensure a child is capable of understanding the potential risks of an intervention or procedure well enough to provide informed consent (e.g., for medical treatments). It is unclear, then, why capacity assessments are being recommended at all for informal name or pronoun changes, which are not harmful or risky and have no negative long-term consequences. It’s also not clear why Grade 6 has been identified as the age at which a student’s capacity should be presumed, particularly given the Office of the Ombud’s assertion that arbitrary age-based rules should generally be avoided in policy-making (18). No specific justification is given in the CYA report for this age cutoff except that it is what is used by other provinces with similar policies. The recommended policy also fails to identify who exactly should be assigned to conduct capacity assessments. Given the major existing shortages of school psychologists and teachers, it is not clear how this policy can be responsibly implemented in a way that provides timely access for affected students.
3. The CYA recommends adding to the policy that “Nothing in this Policy requires school personnel to grant an informal name change which is insincere or done for an improper purpose.” Without a clear framework to define what an “improper” or “insincere” request looks like (which the recommended policy does not provide), this leaves trans students in K-5 vulnerable to the whims of individual school personnel’s interpretations of these terms and provides opportunity for those in positions of power with transphobic (or simply misinformed) views to use this clause to deny requests by trans students in K-5 by arguing that the requests are “improper” or “insincere.” The framing of this clause in particular also does little to assert the rights of trans youth; rather than focusing on cisgender adults’ right to decline requests, a trans rights-affirming policy would include a statement that students have the right to have all proper and sincere requests for informal name and pronouns changes respected by school personnel.
4. Many of the CYA’s proposed policy changes, as outlined in the CBC article and evident in the report, respond to conspiracy theories that New Brunswick public schools are “pushing transgenderism [sic]” on children. For example, the new recommended list of “don’ts” includes an instruction prohibiting school personnel from “promoting or encouraging medical intervention, including gender-affirming care,” despite the complete lack of evidence that teachers were ever encouraging medical intervention to begin with. In absence of a real problem, adding clauses like these is counterproductive in attempting to educate the public on transgender identities; this addition in particular seems to signal that some teachers were encouraging medical intervention (otherwise why would they need to be told not to?) and also reinforces the idea that medical intervention, which is literally life-saving for many trans people, is an inherently negative practice that should never be encouraged. This clause also raises a host of new questions, e.g.: how does this affect the work of school psychologists, counsellors, and social workers? Could this prevent teachers from mentioning that medical intervention exists or explaining what it is for? And, perhaps most importantly, does the CYA understand that “gender-affirming care” is a broad term that encompasses non-medical interventions including name and pronoun changes?
5. Finally, It is important to reiterate how completely uncontroversial the original Policy 713 was to the people actually affected by it. The PCNB government could only produce 3 emails expressing concern about 2SLGBTQIA+ topics in schools prior to July 2023. All of these emails were riddled with transphobic content, but none of them even mentioned Policy 713. In the CYA’s review of the PCNB’s Policy 713 revisions, he points out:

“The harm [the PCNB government] seek[s] to avoid, which is parents being excluded from impactful decisions by children without the capacity or maturity to make them, does not seem to have been demonstrated or documented in any significant way. Yet the restrictions are significant.”

Arguably, this statement applies just as readily to many of the changes proposed in the CYA’s own version of the policy. The additions of capacity assessments and clauses that respond to unsubstantiated rumours about public schools “facilitating sexual transition” attempt to address a broader sociopolitical problem (public misunderstanding of how trans rights are accommodated in public schools) using an inappropriate mechanism. In doing so, the resulting policy prioritizes assuaging cisgender people’s discomfort with the idea of transgender people asserting agency over their own identities over actually affirming trans and gender non-conforming youths’ right to that agency.

Reid Lodge is a 2SLGBTQIA+ rights advocate based in Fredericton, New Brunswick.