Gender-neutral washrooms under microscope as N.B. expands school policy review

The controversial review of a New Brunswick school policy that guarantees ba‐ sic protection for LGBTQ students has recently been expanded to include a sec‐ tion on washroom access, an issue also addressed in federal human rights law.

Education Minister Bill Hogan says the review of Poli‐ cy 713 will consider issues such as how to have genderneutral washrooms in schools with infrastructure challenges and whether the policy affects the rights of students who aren't transgender.

"We want to talk about the rights of female students and whether or not they're com‐ fortable going into a wash‐ room with a biological male," Hogan told Information Morning Fredericton.

Hogan's plan to explore these questions comes about six years after the federal Hu‐ man Rights Act made it a vio‐ lation to stop a person from using a gendered washroom, or to limit access to one be‐ cause of a person's perceived anatomy.

WATCH | Why are gen‐ der-neutral washrooms im‐ portant for kids' safety? A former high schooler ex‐ plains:

Going against that legisla‐ tion would require demon‐ strating a real safety threat, said Wayne MacKay, profes‐ sor emeritus at Schulich school of law at Dalhousie University.

Hogan has not said pub‐ licly how he wants to address his concerns, what the possi‐ ble outcomes of the review would be, and what would change, if anything, about the wording within Policy 713. He has said, however, that he does not plan to limit any LGBTQ rights.

The section about wash‐ rooms has two parts. The first says, "all students will have access to washroom facilities that align with their gender identity." The second says every school should have at least one gender-neutral washroom

The first line of the section is almost identical to the New Brunswick Human Rights Commission's guidelines on washroom access.

Those guidelines say schools, stores and other public spaces "cannot prohibit or restrict a trans person from using the washroom or change facility that aligns with their gender identity."

In response to a request for more detail, a spokesper‐ son for the Department fo Ed‐ ucation sent a statement say‐ ing the section "came under review recently to better de‐ fine or clarify terminology."

You can't discriminate based on an unreasonable fear of negative conse‐ quences. You can, based on a reasonable fear of conse‐ quences. - Wayne MacKay, Dalhousie University

The department did not say what terminology is to be better defined or clarified.

Earlier this month, the government said the re‐ view would look at a section that says teachers would need to get a student's con‐ sent before sharing informal name and pronoun changes, and one that says children are allowed to play on the sports team of the gender they iden‐ tify with.

Access can't be limited without evidence

MacKay said that when balancing one right and an‐ other, evidence is important.

He said the only way to have an exception to the right to use facilities, for the sake of female students' right to safe‐ ty, is to have proof there is a real threat.

WATCH | What is Policy 713, and why does it mat‐ ter? The CBC's Raechel Huizinga explains:

"It wouldn't automatically follow from saying that they had some concerns, that [offi‐ cials] would then say, 'Well, we're not going to have a gen‐ der-neutral bathroom,' or 'We're going to have a gender neutral bathroom and that's the only one you can use.'

"You can't discriminate based on an unreasonable fear of negative conse‐ quences. You can, based on a reasonable fear of conse‐ quences."

If a particular person is be‐ ing a threat to a student, and there's enough evidence, that person can be barred from using the washroom regard‐ less of whether they're trans, MacKay said, and that would not be a rights violation.

Some kids would not use the washroom at all

Gail Costello, a retired teacher of 30 years who helped implement the policy, said the safety concerns she's heard come from trans kids.

When there are no genderneutral bathrooms, or access to it is stigmatized, some stu‐ dents would choose to not go to the bathroom at all be‐ cause they worried about a backlash and bullying.

"Or they just can't wait till lunchtime, so they can run to the mall and go to the wash‐ room," she said.

"Or they arrive late to school … because they know if they missed the first period they can make it till the end of the day without using the washroom."

The federal government, in explaining the 2017 amend‐ ment to the Human Rights Act to protect gender identity and expression, said trans‐ gender people pose no threat.

"[Transgender] and other gender-diverse Canadians al‐ ready use gender-appropriate bathrooms and pose no greater threat than anyone else in doing so." the govern‐ ment said. "They simply want to use the washroom or change room that corre‐ sponds with their lived identi‐ ty."

Costello said many schools in New Brunswick have gen‐ der neutral washrooms, and had them even before policy 713 was created in 2020.

WATCH | The CBC's Jacques Poitras explains the political controversy around Policy 713:

These washrooms are typi‐ cally private, one-stall rooms. She said they are often used by all students because they're more private and feel safer.

Former Oromocto High School student Emmanuelle Jackson said that for this rea‐ son alone, there should be gender-neutral bathrooms in every school.

"If you can't feel safe using the bathroom at school, where else are you going to feel safe?" said Jackson, who identified as non-bina‐ ry. "There should be no rea‐ son that people feel unsafe just doing a simple task in school."

The planned review of Poli‐ cy 713 has provoked protests in New Brunswick cities and some dissent among cabinet ministers in the Progressive Conservative government.

Seven PC MLAs have spo‐ ken out in support of Policy 713, some calling for more consultation. Others, like MLA

Jeff Carr, said if any changes are made they should only strengthen the policy to be better at protecting LGBTQ students.