The latest hearing in a legal challenge of Saskatchewan’s school pronoun policy wrapped up on Sept. 24, with the provincial Court of Appeal reserving its decision to a future unspecified date.
The Saskatchewan government had announced the policy back in August 2023 requiring schools to have parental consent before students under age 16 can change their names or pronouns.
UR Pride, a peer-to-peer support group for LGBT individuals, challenged the policy’s constitutionality, saying it’s a discriminatory policy that violates the Canadian Charter of Rights and Freedoms and puts gender-diverse students at risk. The group succeeded in obtaining a court injunction to stop its implementation until the Saskatchewan Court of King’s Bench could make a ruling.
In response to the injunction, granted on Sept. 28, 2023, Premier Scott Moe said his government would invoke the notwithstanding clause within the charter to pass legislation in order to protect parental rights. “The default position should never be to keep a child’s information from their parents,” he said, noting that the policy “has the strong support of a majority of Saskatchewan residents.”
Saskatchewan went on to move the policy forward as a bill, called the Parents’ Bill of Rights, using the notwithstanding clause. The bill passed into law in October 2023.
In February this year, the Saskatchewan Court of King’s Bench ruled that UR Pride’s lawsuit filed in August 2023 could proceed despite the Saskatchewan government’s use of the notwithstanding clause. Saskatchewan responded by launching an appeal.
UR Pride’s legal representatives said at the time that it wanted to challenge the legislation based on Section 12 of the charter, which prohibits “any cruel and unusual treatment or punishment.” They also said the legislation “continues to cause irreparable harm to gender diverse young people” in the province.
Saskatchewan’s Court of Appeal heard arguments on Sept. 23 and 24 and said it will issue its decision at a later date.
Other Provinces
The Court of Appeal granted intervenor status in the case to 11 groups in July, including the governments of Alberta and New Brunswick, both of which have introduced similar policies for schools.When announcing Alberta’s intention to seek intervenor status in April, the province’s Attorney General Mickey Amery said the case “has the potential to impact not only parental rights across Canada, but also the application of the Parliamentary Supremacy Clause,” referring to the notwithstanding clause with the charter and Canada’s Constitution.
Alberta Premier Danielle Smith announced a policy in January this year requiring schools in the province to seek parental consent if a student under 16 wants to use a different name or pronoun. Under the policy, students 16 or 17 years old don’t need parental consent, but parents must be informed of their child’s decision.
Saskatchewan’s pronoun policy announcement came about a month after New Brunswick Premier Blaine Higgs implemented a change to Policy 713, its sexual orientation and gender identity policy, on July 1, 2023, requiring schools to obtain parental consent when students under 16 want to change their names or pronouns.
In August 2023, Policy 713 was amended to explicitly state that it applies to teachers but not to mental health staff, such as guidance counsellors, psychologists, and social workers, who can use preferred names when supporting students under 16.
Policy 713 previously said that if parental consent could not be obtained, then “a plan will be put in place to support the student in managing the use of the preferred name in the learning environment.”
Legal Challenge
“Saskatchewan has put gender diverse young people in a lose-lose situation: either be forced to come out by the government, or be misgendered and misnamed at school,” Adam Goldenberg, lead counsel for UR Pride, said in a Sept. 20 statement.Upon passing Saskatchewan’s Parents’ Bill of Rights into law in October 2023, Premier Moe said that the legislation ensures “parents and guardians will be involved in all important decisions about their children’s education.”
Moe’s government has also argued that the legal challenge is no longer relevant as the policy has been replaced by the bill that is protected by the notwithstanding clause.
