Challenge of Sask. school pronoun law can proceed despite notwithstanding clause, judge rules

A judge has ruled a court challenge can proceed over the Saskatchewan government’s law requiring parental consent for children under 16 who want to change their names or pronouns at school.

Justice Michael Megaw says the applicant, UR Pride, a 2SLGBTQ+ group in Regina, should still be allowed to make its case surrounding the Charter of Rights and Freedoms even if the Charter’s notwithstanding clause has been invoked.

“UR Pride has recognized the claim here is in somewhat uncharted territory,” Megaw wrote.

“However, that UR Pride has a steep hill to climb in this regard does not mean it should not be given the opportunity to engage in the climb in an effort to illustrate that the incline can be conquered.”

Megaw’s decision allows UR Pride and the government to provide all their evidence and arguments before court. The judge can then decide his next steps.

“We’re relieved that the court has agreed that we need to be able to argue on behalf of gender-diverse students in the province and that the government’s use of the notwithstanding clause doesn’t limit our fight,” said Bennett Jensen, the legal director at Egale Canada and co-counsel for UR Pride.

Lawyers for UR Pride urged Megaw last month to allow the challenge, arguing the law passed by Premier Scott Moe’s government limits the rights of gender-diverse youth who are entitled to a safe educational environment.

Lawyers for the government urged the judge to dismiss the challenge on the grounds the law doesn’t breach the Charter and is in the best interest of gender-diverse children.

The province has said the Charter wasn’t breached because the government used the notwithstanding clause to enact the law.

The notwithstanding clause is a rarely used measure that lets governments override certain Charter rights for five years.

Megaw said he’s declining at this stage to consider the government’s bid to have case deemed moot.

“A difficult claim, a novel claim, or even a steep climb claim, is not analogous to a doomed claim,” Megaw wrote.

“There is no basis here to deny the applicant the opportunity to establish their claim.”

‘Committed to using all tools necessary’: Eyre

The issue is set to head to court in late April or early May, Egale’s Jensen said.

Jensen said they will bring forward evidence to argue the policy is harmful and they are fighting for school safety.

“This decision also stands for the principle that a government can’t escape review from the courts about the constitutionality of their actions,” Jensen said.

Part of the argument relies on Section 12 of the Canadian Charter of Rights and Freedoms, which protects people from cruel and unusual treatment or punishment, often used in regards to the penal system.

Jensen said denying trans kids the right to be who they are, or outing them their parents without their consent, could fall under the “cruel and unusual treatment” aspect of Section 12.

WATCH | Saskatchewan government passes Parents’ Bill of Rights in October 2023:

Sask. government passes Parents’ Bill of Rights

The Saskatchewan government passed Bill 137 Friday, which makes parental consent required before a child under 16 can use a different gender-related name or pronoun at school. The marathon debate over the government’s new legislation began Monday night. The final vote took place less than 40 minutes after debate time expired at 11 a.m. CST Friday, and passed easily, despite the absence of several government members.

In a statement on Friday, Justice Minister Bronwyn Eyre said she’s disappointed with Justice Megaw’s decision. Her Sask. Party government “will not hesitate” to use the notwithstanding clause against the Section 12 argument, she said.

Eyre also said she is “concerned about the potential precedent that it may set on the use of the notwithstanding clause.”

She plans to write to other attorneys general across Canada about the “historic decision,” she said, stating that no superior court in Canada has ever issued a decision on “an alleged Charter breach in the face of a validly invoked notwithstanding clause.”

“We remain committed to using all tools necessary to protect parental rights, including requesting a stay of this decision and an appeal all the way to the Supreme Court of Canada if necessary,” Eyre’s statement said.

Policy changes in New Brunswick, Alberta

Saskatchewan is not the only province remaking policy in this area.

Last year, New Brunswick enacted policies for young people questioning their gender, bringing in rules that require students 16 and younger to have parental permission to change their names or pronouns at school.

Alberta has taken the issue even further and promised to enact changes this fall.

Alberta Premier Danielle Smith has said parental consent would be required for students 15 and under who want to change their names or pronouns at school. Students who are 16 and 17 would not need consent, but their parents would have to be notified.

Alberta also plans to ban gender reassignment surgery for those 17 and under. There are to be no puberty blockers or hormone therapies for the purposes of such surgery for anyone 15 and under, unless they’ve already begun such procedures.

And there are planned restrictions around transgender women participating in female-only sports.

Smith said the changes are to protect children from the consequences of choices they may later regret and to preserve the role of parents in their lives. She has not ruled out using the notwithstanding clause to make the changes.

Like Saskatchewan, Alberta’s changes have prompted protest rallies and concerns from legal scholars and medical professionals.

This week, 36 law professors and legal researchers from Alberta’s two largest universities urged the province reconsider its decision, saying the changes violate multiple sections of the Charter and may constitute cruel and unusual treatment.