Saskatchewan threatens notwithstanding clause over school pronoun debate

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.”

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 Wednesday.

"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.

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

Jensen was speaking before Moe told The Canadian Press the notwithstanding clause is being considered.

"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.

Jensen said Egale Canada is considering seeking 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 Charter rights regarding equality rights, as well as the "right to life, liberty and security of the person."

Moe said it was brought down at the request of parents in the province.

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.

This report by The Canadian Press was first published Sept. 14, 2023.