Saskatchewan Premier Scott Moe during a news conference, in Whistler, B.C., on June 27.DARRYL DYCK/The Canadian Press
A Saskatchewan judge has imposed an injunction that Premier Scott Moe considers so wrong-headed he feels he has no choice but to bring the legislature into special session to overturn that injunction using the Constitution’s notwithstanding clause.
What could be so urgent? Is freedom of religion involved, or speech? Has a language law been struck down?
No. A judge temporarily suspended a new policy that would require parental consent before children under 16 could change their pronoun at school. For that, the legislature is being recalled early. For that, the notwithstanding clause is being brandished, for policies that put youths at risk of psychological or even physical harm, that could force them out of school, out of their homes and onto the street.
Only a tiny fraction of Canadians identify as transgender or non-binary, according to Statistics Canada, which means the number of transgender students under the age of 16 is similarly small. The percentage of those students who want to come out at school, but fear coming out at home, is a fraction of that fraction.
Yet Mr. Moe’s Saskatchewan Party government, mimicking regulations imposed in New Brunswick, saw that handful of vulnerable students as such a great problem that it slapped together new regulations in August in five short days. They went into effect at the beginning of the school year.
UR Pride Centre for Sexual and Gender Diversity, citing the harm that can come to transgender youth who are not supported and alleging the policy violates their Charter rights, launched a lawsuit against the province and sought an injunction to prevent the rules from going into effect.
In granting that injunction, Justice Michael Megaw noted that the province had assembled the regulations in only five days; had presented no evidence of problems created by previous policies; had evidently not consulted teachers, parents or students; and had apparently not considered whether the policy violated the Charter of Rights and Freedoms.
Counsel for the government maintained that, without the new policy, a six-year-old could ask that their pronoun be changed. Justice Megaw considered the concept of a six-year-old making such a request so nonsensical that he wondered “why it has been raised in an evidentiary vacuum.”
The judge accepted the abundant evidence that gender-dysphoric children are at high risk of hurting themselves, of being hurt by others, of eventually quitting school, of ending up on the streets. The more support they can receive – in school, if not at home – the better their chances.
Justice Megaw ruled that the government’s interests were outweighed, at least temporarily, “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.”
He noted that the court’s chief justice was expediting the case, to be heard well before the end of the first semester. But that wasn’t fast enough for Mr. Moe. Citing “judicial overreach,” he is summoning the legislature to an early return from its summer recess, with the new rules to be replaced by legislation that would incorporate the notwithstanding clause to protect them from being struck down by the courts.
A legislature might, after much discussion and with great reluctance, feel bound to invoke the notwithstanding clause. But this slapdash and pre-emptive move by the Moe government is the very opposite of careful consideration.
Polls show a majority of Canadians support policies requiring schools to inform parents if a child wants to change their gender identity. This makes perfect sense for most parents, whose overriding concern is their child’s well-being.
Sadly, that is not universally true; a minority of parents may be intolerant or even abusive. Few children are at risk, but those few “may be irreparably detrimentally affected by this policy,” Justice Megaw wrote.
That is the very purpose of the Charter: To protect minorities at risk of having their rights stripped away – in this case, vulnerable trans youth. Proponents of “parental rights” spare little thought for a young person struggling to understand who they are and afraid of what awaits them at home. The same is true of Mr. Moe’s judicial-overreach rhetoric.
Ultimately, this issue is about a youth needing protection, not slogans. That is the person whom Mr. Moe ignores. If the Premier ever found himself talking to a trans youth forced onto the streets by his policies, what would he say to them?