The president of the Saskatchewan Teachers’ Federation expressed her optimism about the Supreme Court providing clarity on the province’s pronoun law as the court has agreed to hear appeals on the matter. This law currently prohibits children under 16 from changing their names or pronouns at school without parental consent, creating challenges for educators, according to Samantha Becotte.
Becotte emphasized the importance of repealing Bill 137 to grant teachers the professional autonomy necessary to establish inclusive learning environments for all students in Saskatchewan. She stressed that teachers should be able to exercise their professional judgment in creating safe spaces for students.
No specific date has been scheduled for the court to address the cross appeals from the provincial government and UR Pride, a 2SLGBTQ+ group in Regina. The rule, introduced as a policy by Premier Scott Moe’s Saskatchewan Party government in 2023, argues for parental involvement in school decisions affecting children.
Legal representatives for UR Pride contested the rule in court, arguing that it infringes on Charter rights and causes harm to gender diverse youth. Despite a temporary injunction granted by a judge to halt the policy, the province later enshrined it into law using the notwithstanding clause to override certain Charter rights for five years.
The Saskatchewan Court of Appeal ruled that while the legislation cannot be struck down due to the notwithstanding clause, the court can issue a declaratory judgment on its compliance with constitutional rights. UR Pride can still argue for the law to be invalidated, particularly as the notwithstanding clause did not extend to Section 12 of the Charter concerning cruel and unusual treatment.
Both UR Pride and the province have filed appeals and requested an expedited hearing at the Supreme Court of Canada, aligning with a similar challenge in Quebec regarding a law prohibiting public sector workers from wearing religious symbols, which also invoked the notwithstanding clause.
Toronto lawyer Adam Goldenberg, representing UR Pride, reiterated that the law violates Charter rights and harms gender diverse youth, calling for the government to substantiate its defense of the law with evidence. Emphasizing the importance of hearing from gender diverse youth, Goldenberg highlighted the significance of the Supreme Court’s involvement in the case.
Louis-Philippe Lampron, a constitutional law professor at Université Laval in Quebec, noted that the case’s consideration by the Supreme Court underscores the evolution of Canadian law and the tendency of some provinces to appeal to populist sentiments. He suggested that while the notwithstanding clause may cater to populist movements, legal challenges could deter legislatures from invoking it lightly.
Meanwhile, in Alberta, a similar legal dispute is unfolding, where Premier Danielle Smith’s government recently utilized the notwithstanding clause to halt a provincewide teachers strike and safeguard its back-to-work legislation from legal challenges. The government’s plans to employ the notwithstanding clause in legislation concerning school pronouns, female sports, and gender-affirming health care have sparked controversy and are facing legal opposition.
As laws in Alberta restricting gender-affirming health care and transgender participation in sports face challenges, Premier Smith has indicated the possibility of invoking the notwithstanding clause to expedite the resolution of these contentious issues, which could otherwise take years to settle through the courts.
