If Saskatchewan Premier Scott Moe used the Constitution’s notwithstanding clause to override a court challenge concerning a policy regarding gender pronouns in schools, its invocation would not be unprecedented, says Marty Moore, a constitutional lawyer. Moore points to a Saskatchewan case in 2017 where the Court of Queen’s Bench ruled that funding non-Catholic students to attend a Catholic school was unconstitutional. However, the provincial government enacted the notwithstanding clause, and the Saskatchewan Court of Appeal reversed the decision, finding that it was not unconstitutional.
The current controversy in Saskatchewan revolves around a policy that requires schools to seek parental permission before changing students’ pronouns and names. Moore argues that this issue also concerns parental and student rights, albeit in a different context. He believes it will spark important conversations in other jurisdictions facing similar legal challenges.
The use of the notwithstanding clause has been considered by Premier Moe. The clause allows governments to overrule certain charter rights for up to five years.
The policy in question was announced on August 22 and requires schools to seek parental permission for changes to child names and pronouns. It also allows parents to decline their child’s participation in sexual health curriculum and pauses third-party sex education while a review is underway. The policy was partly in response to an incident in Lumsden, Saskatchewan, where students were exposed to sexually explicit material introduced by an external sex educator.
UR Pride Centre for Sexuality and Gender Diversity, along with assistance from Egale Canada, has challenged the policy in court. They argue that the policy is dangerous and harms children by not providing them with appropriate inclusive health education. The Saskatchewan Teachers Federation and the Saskatchewan Advocate for Children and Youth have also criticized the policy, citing concerns about discrimination and potential violations of human rights laws.
Despite the opposition, there is significant public support for the government’s position. A poll conducted by Angus Reid showed that the majority of Canadians believe parents should be informed if their child wants to identify differently. New Brunswick and Manitoba have also implemented similar policies or expressed interest in doing so.
Marty Moore emphasizes the seriousness of the fundamental questions at stake in this case. He believes that involving parents in their children’s lives should not be seen as a violation of students’ constitutional rights, and that parents should not feel that their involvement is insignificant.