Saskatchewan to invoke notwithstanding clause over school pronoun policy

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Saskatchewan Premier Scott Moe will use the Constitution’s notwithstanding clause to override a judge’s decision to pause his government’s policy that requires parental permission for students under 16 who want to change their names or pronouns at school.

Earlier in the day Thursday, Court of King’s Bench Justice Michael Megaw granted a request from an LGBTQ advocacy group for an injunction to put the policy on hold until a constitutional challenge could be heard in court.

Mr. Moe said in a statement that he was “extremely dismayed by the judicial overreach” concerning a policy that he felt had strong support in the province, including among parents.

He said that his Saskatchewan Party government would recall the legislative assembly on Oct. 10 and use the notwithstanding clause, which would exempt pending legislation on the issue from sections of the Charter of Rights and Freedoms for up to five years.

Explainer: What is the notwithstanding clause, and how controversial is its use?

“The default position should never be to keep a child’s information from their parents,” Mr. Moe said. “It is in the best interest of children to ensure parents are included in their children’s education, in their classrooms and in all important decisions involving their children.”

In a 56-page decision, Justice Megaw wrote that the public interest expressed by the government in introducing the policy “is outweighed by the public interest of not exposing that minority of students to exposure to the potentially irreparable harm and mental health difficulty of being unable to find expression for their gender identity.”

Further, he wrote: “I find this to be one of those clear cases where injunctive relief is necessary to attempt to prevent the irreparable harm referred to pending a full hearing of this matter on its merits.”

Advocates in the LGBTQ community worry that policies by conservative governments requiring parental consent for students to change their names or pronouns could put the lives of children at risk.

“The reality is that some 2SLGBTQI youth might not be safe to be themselves at home, making it even more crucial to ensure that school environments are safe and inclusive places,” said Ariana Giroux, executive director of UR Pride Centre for Sexuality and Gender Diversity at the University of Regina. UR Pride sought the court injunction.

Several provinces, including Quebec, Alberta and Ontario, have used – or threatened to use – the notwithstanding clause. More recently, Ontario invoked the clause to take away an education workers’ union’s constitutional right to strike. The province retracted the piece of legislation after widespread condemnation in the labour movement.

In the United States, Republicans in several states have restricted students using preferred pronouns in schools and challenged school library books on gender identity. These issues are gaining a foothold in Canada.

The policy in Saskatchewan follows changes in New Brunswick this summer, where an updated version of school policy makes it mandatory for schools to get parental consent before using the chosen names and pronouns of students under 16 in the classroom.

In Ontario, Premier Doug Ford recently said parents should be informed about their child’s gender identity and said school boards should not “indoctrinate” students on issues of gender.

Saskatchewan children’s advocate Lisa Broda recently said that she understood the government’s desire to have parents more involved in the education system. But “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,” she said.

The province’s new policy also includes a requirement that parents be informed about sexual-health curriculum and have the option to decline their child’s participation. For students 16 and older, parental or guardian consent to change names or pronouns is not required.

UR Pride, along with Egale Canada, an LGBTQ advocacy organization, called it “unconscionable” for the government to invoke the notwithstanding clause.

“It is frankly shocking that, in the face of the court’s ruling that this policy will inflict irreparable harm on children, the government of Saskatchewan intends to invoke the notwithstanding clause to impose it anyway,” Adam Goldenberg, lawyer for UR Pride, said in a statement on Thursday.