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People attend a rally against the Saskatchewan government's proposed legislation on school pronoun policy, in Regina, on Oct. 10, 2023.Heywood Yu/The Canadian Press

A Saskatchewan judge has begun hearing a legal challenge over a law that requires parental consent when children under 16 want to change their names or pronouns at school.

Lawyers for UR Pride, an LGBTQ organization in Regina, told court Wednesday the challenge should proceed.

Adam Goldenberg said the law unjustifiably limits the rights of gender-diverse youth to equality and security, adding those youth should be entitled to a free society and safe educational environment.

The province’s lawyers have asked the court to dismiss the case, arguing it is moot because the Saskatchewan government invoked the notwithstanding clause.

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

Last September, Justice Michael Megaw granted an injunction to pause the policy until court could hear the challenge.

Premier Scott Moe then recalled the legislature for an emergency sitting to pass the law with the notwithstanding clause in an effort to prevent the challenge from proceeding.

Mr. Goldenberg said even though the notwithstanding clause was used, there are inconsistencies within the Charter.

Ljiljana Stanic, also representing UR Pride, told court the province did not apply the notwithstanding clause to Section 12 of the Charter, which covers the right not to be subjected to any cruel and unusual treatment.

She said because Section 12 wasn’t applied, lawyers can argue how young people’s rights are violated based on that section.

Ms. Stanic told court that teachers are employed by the government and their actions are considered treatment. Potentially outing students or misgendering them at school can be viewed as mistreatment, she said.

In the law, the province applied the notwithstanding clause to sections 2, 7 and 15 of the Charter. These sections deal with freedom of expression, liberty and equal protection.

Mr. Goldenberg said court could offer a remedy by making a declaration the law is of “no force and effect.”

Ms. Stanic said a declaration would matter.

“It matters more than most for marginalized people who don’t have a lot of access to the courts, whose rights are trampled, to know what their rights are now, even if things last notwithstanding,” she said.

She said if court decides it doesn’t have jurisdiction to grant a declaration, gender-diverse students would be left without recourse.

Justice Megaw told court a declaration is not “the end result” but that such pronouncements are “real.”

Mr. Moe has said Saskatchewan implemented the law after hearing from parents who wanted it.

The hearing is scheduled to resume Thursday with government lawyers making their arguments.

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