Saskatchewan’s use of the Charter’s notwithstanding clause (NWC) is the ideal situation for its application, says a new policy paper by a political science professor.
Dave Snow, associate professor in the department of political science at the University of Guelph, outlined his argument in the paper entitled When Rights Clash, published on Oct. 10.
“The conflict over parental consent and children’s pronouns is precisely the type of issue for which the NWC was envisioned,” Mr. Snow wrote. “In this case, the core dispute—whether parents should be informed and, if so, provide consent when students change their names or gender pronouns at school—implicates foundational questions of parenthood, identity, privacy, and consent.”
Mr. Snow said the clause was created to deal with situations where there was “reasonable disagreement with a judicial decision, in an area of provincial jurisdiction, over a ‘clash of rights’ not directly enumerated in the text of the Charter.”
“The NWC was included in the Charter for situations like the gender pronouns issue: to protect rights beyond those enumerated in Charter case law and to disagree with judicial interpretations of those rights, especially in areas of provincial jurisdiction,” he said. “Far from undermining the Charter, the NWC is a crucial part of it.”
Saskatchewan’s Education Minister Jeremy Cockrill introduced the Parents’ Bill of Rights (Bill 137) to the provincial legislature on Oct. 12.
“Our goal is and has been to support students together with parents. Again, this policy, this legislation, brings parents into the lives of children,” he said during the sitting. “That’s whose best enabled to support children through difficult conversations and difficult decisions.”
The legislation will solidify some parental rights when it comes to children in schools, including the need for parental consent to change a student’s name, pronouns, or gender identity for children under 16 years, according to a Saskatchewan government news release. The bill also grants parents the right to be informed two weeks in advance if sexual health content will be presented in their child’s classroom. Parents can also opt to withdraw their child from that class by writing to the principal.
Critics of the bill say it violates the rights of children and may cause harm to those vulnerable members of society.
The policy was first announced in August, and a legal challenge to it was mounted led by the UR Pride Center for Sexuality and Gender Diversity, an LGBT peer support group.
The Kings Bench for Saskatchewan court granted the group an injunction to prevent the policy from being enacted in schools. However, Mr. Moe said his government would use the NWC to move the bill forward.
While the Official Opposition criticized the government’s decision to invoke the NWC, Mr. Snow said the clause was designed for situations just as this.
“Children’s rights to privacy are important, as are the rights of parents to be informed of their children’s choices. Whatever policy a government decides in this area, it will involve a limitation on someone’s rights,” he wrote in the paper.
Mr. Snow also said that use of the NWC does not mean the policy will be in place indefinitely.
“The clause’s five-year expiry ensures that governments that invoke it must face voters before doing so again,” he wrote.
Since 2017, the clause has been invoked in seven bills and four provinces, five of which have now become law, he said in his paper.
Saskatchewan previously used the NWC in 2017 to allow non-Catholic students to attend Catholic schools.
A Leger poll released on Oct. 12 found that 63 percent of Canadians surveyed think schools should inform parents if a child wants to change pronouns or gender. Forty-five percent said schools should inform parents even if the child does not feel safe telling their parents.
Of those polled, 46 percent said they support the notwithstanding clause “to ensure that schools inform parents if their child wishes to be identified by a different gender or pronoun.”
When it comes to using the clause to prohibit sexual orientation and gender discussions, 37 percent of Canadians agreed.
The survey, done between Oct. 6 and Oct. 9, included 1,518 Canadians randomly selected in an online panel.
