Scott Moe, Premier of Saskatchewan, arrives at the Canadian premiers and National Indigenous Organizations meeting in Winnipeg, Monday, July 10, 2023. The Saskatchewan government is prepared to use the notwithstanding clause to keep its new rule requiring schools to get parental permission before calling transgender or nonbinary students by their chosen names or pronouns. THE CANADIAN PRESS/John Woods

By The Canadian Press

notwithstanding clause

Saskatchewan considers notwithstanding clause to keep school pronoun policy change

Sep 14, 2023 | 10:59 AM

Saskatchewan Premier Scott Moe is ready to use the notwithstanding clause to protect a new rule requiring parental permission for transgender and nonbinary students to use different names or pronouns at school.

In the face of a court challenge brought against the new education policy, Moe announced late last week that his provincial government would seek to enshrine the changes in legislation to be introduced this fall.

He recently told reporters that his Saskatchewan Party government was prepared to use different “tools” to ensure that the policy remains in place.

“If necessary, that would be one of the tools that would be under consideration — yes,” Moe said in an interview Wednesday when asked whether the notwithstanding clause was an option on the table.

“The notwithstanding clause is present for a reason — so that duly elected governments can represent their constituents when necessary.”

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READ MORE: ‘Still fighting’: Opponents of Sask. pronoun policy make their voices heard

The notwithstanding clause is a provision in the Charter of Rights and Freedoms that allows federal, provincial and territorial governments to pass laws that override certain Charter rights for up to five years.

Debate around its use has heated up in recent years as provincial governments in Ontario and Quebec have invoked it pre-emptively, effectively preventing anyone from launching a legal challenge.

Moe is not at this point pledging to use the notwithstanding clause, calling it “but one of the tools” his government is eyeing to keep the new naming and pronoun policy for children under 16 announced this summer.

“We most certainly are looking at all the tools that we have available, understanding that the policy is in place and effective today and so it would be premature to say that we are using this tool or that tool,” he said.

“But you can have the assurance that the government will utilize any and all tools available, up to and including the notwithstanding clause, should it be necessary to ensure this policy is in place for the foreseeable future in Saskatchewan.”

The UR Pride Centre for Sexuality and Gender Diversity at the University of Regina, which offers services to gender-diverse individuals around the provincial capital, is challenging Saskatchewan’s policy in court.

Egale Canada, a national organization that advocates for LGBTQ+ rights, is co-counsel in the case filed with the Saskatchewan Court of King’s Bench. A judge recently granted the government’s request for more time to prepare to argue the constitutionality of the policy but said an injunction hearing will proceed next week as scheduled.

Bennett Jensen, the legal director at Egale, has said he hopes no province invokes the notwithstanding clause for such a policy, which is similar to one New Brunswick announced this spring.

“That would require a government saying that they are using the notwithstanding clause in order to intentionally, knowingly violate the Charter rights of children, which strikes me as wholly unconscionable for a government to do,” Jensen said in a recent interview, before Moe confirmed the notwithstanding clause is being considered.

Jensen said Egale Canada may seek intervener status in the case against the similar policy brought in by New Brunswick Progressive Conservative Premier Blaine Higgs. The Canadian Civil Liberties Association is spearheading that legal challenge.

Jensen argues that the Saskatchewan government is violating the Charter rights to equality as well as the “right to life, liberty and security of the person.”

Furthermore, he said, the main reason the organization got involved is due to the degree of harm a young student could face if they were “outed” to their parents, “no matter the consequences.”

A landmark 2018 study published in the Journal of Adolescent Health found transgender youth who are able to use their preferred names and pronouns reported a 34 per cent drop in suicidal thoughts and a 65 per cent decrease in suicide attempts.

“It’s really important that we get clear court direction about how the rights of gender-diverse students operate in this context, and my hope is that this guidance can then be brought to premiers of other provinces … who are seeking to pursue similar policies,” Jensen said.

Moe has said the change was made at the request of parents in the province and the government is leaving it up to its 27 school divisions to develop implementation plans. He also said he believes that will address the concerns that some students may not feel safe having their parents informed of their gender identity.

Manitoba Progressive Conservative Leader Heather Stefanson has vowed that if re-elected, her government would enhance “parental rights” when it comes to the curriculum and presentations by outside groups at schools.

Ontario has stopped short of introducing any policy changes but Premier Doug Ford told a crowd last week that school boards and teachers should not be “indoctrinating” students, language that has been used by anti-LGBTQ+ groups.

University of New Brunswick law professor Kerri Froc said discrimination against trans people is well-documented and she believes that courts dealing with these cases will have to decide whether limiting someone’s equality rights is justified by the intent behind the policies.

“The court likes to see some safeguards built in, a carefully tailored policy that is cognizant of the various rights that are at issue and make some allowances,” she said.

She said Moe’s decision to legislate the policy, which lays the groundwork for skirting around any potential Charter breaches, as part of a “sea change” the country has seen in recent years. Provincial leaders have been using the notwithstanding clause more frequently, even though it was designed to be a measure of last resort.

“There seems to be a real — by populist governments — a real kind of hostility to the Charter in terms of setting up courts as the bad guys that are appointed, not elected.”

The last time Saskatchewan invoked the notwithstanding clause was in 2017 in response to a court ruling that said it was unconstitutional for the province to keep paying for non-Catholic students to attend Catholic schools.