Saskatchewan Premier Contemplates Using Notwithstanding Clause in Gender Pronoun Policy Legal Challenge

Saskatchewan Premier Scott Moe speaks at a press conference at the Legislative Building in Regina on March 25, 2021. Michael Bell/The Canadian Press

If Saskatchewan Premier Scott Moe used the Constitution’s notwithstanding clause to override a court challenge concerning a policy regarding gender pronouns in schools, its invocation would not be unprecedented, says a constitutional lawyer.

“In Saskatchewan, uniquely enough, this actually wouldn’t be unprecedented,” said Marty Moore, litigation director with Charter Advocates Canada.

He pointed to a Saskatchewan case involving two school divisions, where the Court of Queen’s Bench ruled in 2017 that it was unconstitutional to fund non-Catholic students to attend a catholic school.

“At that point, the provincial government enacted the notwithstanding clause on the basis that they were going to protect student and parents’ rights,” Mr. Moore told The Epoch Times. “And the Saskatchewan Court of Appeal reversed the lower court’s decision, and found that, in fact, it wasn’t unconstitutional for the Saskatchewan government to be funding non-Catholic students who chose to attend a Catholic school.”

He said the current controversy, where the government has implemented a policy that requires schools to seek the permission of parents or guardians before changing students’ pronouns and names, is also about parental and student rights, but in a different context.

“I think this is a very important question. I would be interested to see what kinds of conversations this sparks in other jurisdictions, including New Brunswick, which, of course, is also facing a legal challenge to its policy regarding the notification of parents and the requirement of parental consent,” said Mr. Moore.

Legal and Social Implications

On Sept. 13, Mr. Moe told reporters that using the notwithstanding clause was “one of the tools” under consideration, although he did not say if the government would definitely use it. The notwithstanding clause allows governments to overrule certain charter rights for up to five years.

In an announcement on Aug. 22, the provincial government said schools must seek parental permission to change names and pronouns for students under 16. The announcement also said parents must be informed about the sexual health curriculum, with the option to decline their child’s participation. In addition, the government said school divisions must pause any third-party sex education while a review is underway.

The policy was partly the result of an incident at a school in Lumsden, Saskatchewan, where students were exposed to sexually explicit material introduced by an external sex educator.

The Aug. 22 announcement has provoked a legal challenge by UR Pride Centre for Sexuality and Gender Diversity, a peer-to-peer support group, along with assistance from Egale Canada, a gender advocacy organization.

“These policies are dangerous and can harm children by outing them and not providing them appropriate inclusive health education,” UR Pride said about the policy on its website.

The group is seeking an injunction to stop the government policy. The court hearing is set for Sept. 19 in Regina.

UR Pride is not the only group expressing concern. The Saskatchewan Teachers Federation has also criticized the new policy. On Sept. 15, the Saskatchewan Advocate for Children and Youth released a review critical of the policy.

“Gender identity is a prohibited ground of discrimination under provincial human rights legislation, and the education system has a duty to accommodate the needs of transgender and gender diverse students,” said advocate Lisa Broda in a news release.

“We agree with the government’s desire to place a high importance on the involvement of parents and guardians in education. However, this objective can be achieved without imposing such strict rules around consent, which could result in a violation of a young person’s rights under provincial, constitutional, and international human rights laws,” Ms. Broda added.

However, there appears to be a lot of public support for the government’s position. An Angus Reid poll released Aug. 28 showed 78 percent of people across Canada believe parents should be informed if their child wants to identify differently. In Saskatchewan, that number is 86 percent.

New Brunswick announced a similar policy in June, and Manitoba’s Premier Heather Stefanson said her government will look at a similar policy if re-elected in October.

Mr. Moore said the fundamental questions at stake are serious.

“One might consider the essence of the case being brought against this policy is that, somehow, involving parents in their own children’s lives is a violation of the constitutional rights of students,” he said. “And so, I don’t think one could consider this to be an insignificant case.”

And he said it’s equally important for parents.

“Especially for parents … thinking that somehow their involvement in their children’s lives violates the constitutional rights of their children, I don’t think they’d find this issue to be insignificant whatsoever,” he said.