Hogan had Policy 713 changes ready before consultations: documents

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Education Minister Bill Hogan had the wording of proposed changes to the province’s gender-identity policy in front of him before he began consultations with stakeholders, according to documents contained in a new court filing.

Exactly who prepared the document for Hogan is unknown at this point in time, but the version of events that unfolded tracks with what Saint John parent Nicole Paquet told Brunswick News last May.

Paquet, who is the mother of a trans child, sounded the alarm about what she said was a fixed public engagement process based on a phone call she had with the minister. She claimed that on May 24, 2023, Hogan and Deputy Education Minister Ryan Donaghy called her to ask for her help to rework the self-identification section of Policy 713 before other stakeholders were consulted. She refused to do so.

That section is now the subject of two legal battles after the Higgs government reworked it to require trans and non-binary students under the age of 16 to have parental consent before their chosen names and pronouns can be used in certain school settings.

That policy change – along with stripping a reference to all students participating in extracurriculars “consistent with their gender identity” and a reference to washroom access that aligns with students’ gender identity – are contained in a document outlining the “path forward as of May 17.”

The Higgs government didn’t move forward with that washroom change – it instead added that private universal changing areas would be made available – but it did adopt the two other policy changes laid out in the document.

On Tuesday, Hogan wouldn’t answer questions about the document when asked by Brunswick News, citing the ongoing legal action.

Liberal Leader Susan Holt said she wasn’t surprised to hear Hogan had the proposed policy changes in hand before the consultations.

“Clearly this government had an idea of something they wanted to do that wasn’t dependent on emails from parents, advice from civil servants or lawyers or otherwise, so it’s disappointing but not surprising to learn they had their plan in place before their fake consultations,” she said Tuesday.

In the “scoping” document prepared for the policy review, Hogan was told the proposed changes would be the subject of consultations with “proposed” groups like Pride in Education, the New Brunswick Interscholastic Athletic Association (NBIAA) and “gay or trans students who may have reached out to you directly.” Those groups were also referenced in a May 23 email sent by Donaghy along with a chart of the proposed changes.

“The engagement will start the week of May 22 and end by the end of May,” the scoping document states. “The final amended policy will be reviewed with (the Office of the Attorney General) for adoption week of May 29.”

On June 8, the Higgs government announced its first batch of Policy 713 changes. By that point, it had consulted with NBIAA and some students, but it never did with Pride in Education (PIE), a group of educators who learned of the policy review through an April 21 letter from Donaghy. In that letter, Donaghy cancelled government funding and a Policy 713 presentation planned for PIE’s May 5 professional learning event at Hanwell Park Academy.

In an April 20 email to officials with the Executive Council Office, Donaghy advised of the plan to cancel the presentation to allow for the policy review.

“We will bring forward potential (policy) amendments to ECO/PO (Premier’s Office) before anything leaves this building to ensure we move in an intended direction,” he wrote. “Let me know if I have captured the direction appropriately, at which point we will action accordingly.”

That email was forwarded to Higgs who responded that it was “a reasonable request and path forward.”

No ‘removing anything that goes counter to the Charter’: memo

The Canadian Civil Liberties Association (CCLA) is now asking the court to order the Province of New Brunswick to identify the author or authors of the scoping memo, as well as provide what have been deemed as privileged briefing notes and legal opinions on the revised policy.

That matter could be heard as early as next week.

In addition to providing proposed policy changes, the scoping document also lists “out of scope” items. Those include “rolling back to reducing human rights protections afforded to marginalized groups; removing anything that goes counter to the Charter and human rights legislation; and removing anything that could be perceived as making the environment less inclusive, safe, secure to marginalized groups.”

In its lawsuit, the CCLA is arguing the policy’s revised self-identification section now violates the Canadian Charter of Rights and Freedoms, as well as provincial human rights and education legislation. It also argues Hogan made this policy change following a “flawed and unfair” public consultation process.

In a statement last week, Higgs said his government continues to stand behind its changes to Policy 713.

“We are providing a safe and welcoming learning environment for all students while respecting the role of parents,” he said.

Last May, former Tory Education Minister Dominic Cardy called the then ongoing policy review “a joke,” describing his former government’s attempt to use Paquet to rewrite a policy section as “a shiny coat of icing on this rather gross cake.”

“The way that this has happened has been a joke from start to finish,” the independent Fredericton West-Hanwell MLA said at the time.

Cardy signed Policy 713 into effect in 2020 when he was then education minister. He has maintained that Higgs has tried to quash the policy “multiple times” over the years.

Shortly after the review was publicly revealed last spring, Higgs told reporters he knew his government had passed the policy in 2020 following years of development by experts, but he didn’t know all the details, nor the implications, at the time.

An Oct. 22, 2019, briefing note prepared by the education department for the premier gave a synopsis of the development of Policy 713, according to a copy contained in the court filing. That synopsis outlined key areas of the policy, the stakeholders the department had consulted in its preparation and the policy’s alignment with human rights legislation.