N.B. judge denies group's request for more information in gender-identity policy lawsuit

A judge has sided with the New Brunswick governmentin one decision, and against it in another in the lawsuit against its school gender-identity policy.

The Canadian Civil Liberties Association has filed a lawsuit alleging that changes to Policy 713 were made after a "flawed and unfair process by a Minister who exhibited a 'closed mind' and a reasonable apprehension of bias."

As a result of the changes, the policy requires parental consent before school staff can use the chosen names and pronouns of students under 16.

In one decision, Justice Richard Petrie dismissed the association's request to force the province to release "a further and better record" of the policy review process.

In another decision, Petrie dismissed the province's request toput Charter issues on pause and only deal with whether the policy goes against the Education Act.

The record is complete, Petrie rules

The lawsuit was filed in September, but it is still going through preliminary stages. Part of the delay is a disagreement about what documents the judge should actually be reviewing to decide whether to strike down the policy.

The association argued that documents showing the decision to begin the review should be included. But the province argued the decision to begin the review was a "political" one, and therefore not up for judicial review.

In a decision released this week, Petrie sided with the province.

Petrie said that the process of judicial review limits him to reviewing only the changes to the policy and does not include why the review started.

The association alleged that some documents released show that the process was biased from the beginning, and changes to the policy were decided even before the review officially started.

The judge said the association did not properly prove that.

"I view the Applicants' allegations to largely remain speculative and unsubstantiated," Petrie wrote.

Harini Sivalingam, director of theassociation's equality program,, saidin an interview the decision was disappointing but there is no plan to appeal.

"This would cause further delays in vindicating the very important constitutional rights of trans and gender-diverse students at stake," she said.

"But we do take some comfort from the court's conclusion that this information is not strictly necessary for the court to complete its work."

The civil liberties groupalso asked the judge to review nine documents that are relevant but are being withheld by the province because they relate to cabinet discussions.

7 documents remain secret

The province later released two of the documents, and the judge said a third was already released to CBC News and cannot be retroactively redacted.

The remaining seven, however, should remain secret, Petrie ruled, because they were prepared to brief the minister before he discussed the possible changes to the policy with the rest of cabinet.

The association argued that it was up to the province to prove that the harm of releasing these documents would outweigh the harm to the public's right for transparency and accountability.

But the judge said he agreed with the province that when it comes to discussions between the minister and cabinet, releasing the documents "could inhibit the proper functioning of government."

Petrie said this couldimpact the politicians' ability to speak with candour andharm the public's right to effective government.

The court decision does not explicitly explain how this concernwould outweigh harm to the public's right to transparency or open governance.

Judge strikes down province's motion

The province had also argued that the judge should split this lawsuit into two parts: First dealing with whether the policy goes against the Education Act, then, if necessary, decide whether the policy goes against the Charter of Rights and Freedoms.

The province argued such a division would make the process faster and more efficient.

The association argued that splitting the case in two would actually duplicate their evidence and take much longer.

In a decision, Petrie dismissed the province's motion.

"It was up to the Province to satisfy me on the merits of their position and the savings, conveniences, fairness and appropriateness of such relief. Respectfully, they have failed to do so," Petrie wrote.

Sivalingam said the association has no more preliminary motions, and barring any from the province, the case would be ready to go to trial.