Sask. court rules that legal challenge of province's pronoun policy can move forward

CTV News

6 days ago

People hold signs while attending a rally against the Saskatchewan government's proposed legislation on pronoun policy in front of Saskatchewan legislature in Regina, on Tuesday, October 10, 2023. (THE CANADIAN PRESS/Heywood Yu)
Saskatchewan's Court of Appeal has ruled that invoking the notwithstanding clause cannot stop a court from ruling whether a law violates the Charter.
In a Monday decision on an appeal that saw a host of groups join as intervenors, the province's highest court determined a judge can hear the Charter case against Saskatchewan's controversial pronoun law — even if a King's Bench judge is barred from striking it down.
Known as Bill 137 or the Parents' Bill of Rights, the legislation requires students under the age of 16 to have parental permission before they can change their pronouns or names in school.
The court's decision will allow the UR Pride Centre for Sexuality and Gender Diversity to pursue whether the amendments to the province's education act violates two sections of the Charter, mainly the right to life, liberty, security of the person (Section 7) and equality rights (Section 15).
The Government of Saskatchewan first introduced a pronoun policy in August of 2023 – which was legally challenged by UR Pride.
The University of Regina-based centre requested and was granted a court injunction which halted the use of the policy.
In response, the Government of Saskatchewan recalled the legislature in October of 2023 to enshrine the policy into law and stop the court challenge.
In response, the Government of Saskatchewan recalled the legislature to enshrine the policy into law and stop the court challenge.
Utilizing Section 33 of the Charter, otherwise known as the 'notwithstanding clause,' the government passed Bill 137 amid heavy criticism from advocacy groups and the Opposition NDP.
UR Pride amended its legal challenge to say the law violated Section 12 of the Charter, which protects Canadians from cruel and unusual treatment or punishment.
In February of 2024, a Court of King's Bench judge ruled that UR Pride's amended challenge should be heard.
The province appealed that decision, arguing that since the original policy was no longer in place, and the law was protected by the notwithstanding clause, the question of whether the law violates the Charter rights of children was essentially irrelevant.
Since the provincial government's constitutional maneuver to sidestep the ability of a court to strike the pronoun law down, the government's lawyers have argued it would be an abuse of process for a court to even hear the case or make a judgment on the potential Charter issues.
During the two days of arguments, the Court of Appeal panel heard from nine interveners that supported a decision to continue the legal challenge against the bill – ranging from the Canadian Civil Liberties Association to the John Howard Society.
The Governments of Alberta and New Brunswick served as intervenors on behalf of the provincial government.
Monday's verdict will allow UR Pride's challenge to be heard at the Court of King's Bench at a later date — even though the law will remain in place regardless of what the court rules due to the protections of the notwithstanding clause.
Reaction
Egale Canada, which launched the legal challenge alongside UR Pride, shared its enthusiasm over the court's decision Monday.
'At the base of this case is a government policy that the Court of King's Bench found – on the basis of expert evidence – would cause irreparable harm to vulnerable young people in Saskatchewan," the organization shared.
'Rather than reverse course, the Government of Saskatchewan has doubled down at every turn, using the notwithstanding clause to intentionally limit the constitutional rights of youth, and implement a law that will cause them harm.'
Egale ended off by urging the government to end its defence of 'harmful legislation' and to prioritize creating safe and welcome school environments.
Organizations from across the province shared similar sentiments following the decision.
'Today sends a clear message: rights matter, children matter, and the Sask. Party government cannot simply legislate away accountability,' CUPE Sask. president Kent Peterson said in a statement.
'Instead of a serious response to tariffs, wildfires, or understaffed hospitals, the Sask. Party keeps fighting students and educators in court. Wasting hundreds of thousands - if not millions - of taxpayer dollars on this fight is bizarre,' SLF president Lori Johb said in her own news release.