The head of the Saskatchewan Teachers’ Federation is optimistic that the Supreme Court will provide clarification on the province’s pronoun law, as the highest court in the country has agreed to review appeals related to it. This law prohibits children under 16 from altering their names or pronouns at school without parental approval, a situation that Samantha Becotte believes places educators in a challenging position. “We are urging the Saskatchewan government to revoke Bill 137 and ensure that teachers possess the necessary professional autonomy,” she stated.
Becotte emphasized that teachers should be empowered to exercise their professional discretion in establishing safe learning environments for all students in Saskatchewan. The court has not scheduled a date yet to hear the opposing appeals from the provincial government and UR Pride, a 2SLGBTQ+ organization based in Regina. Premier Scott Moe’s Saskatchewan Party administration implemented the policy in 2023, asserting that parents should be engaged in their children’s educational decisions.
UR Pride’s legal representatives contested the rule in court, contending that it breaches Charter rights and has detrimental effects on gender diverse youth. Following a temporary injunction granted by a judge, the province enshrined the policy into law a month later, utilizing the notwithstanding clause to override specific Charter rights for a five-year period. While the province contended that the challenge should be dismissed due to the invocation of the notwithstanding clause, the Saskatchewan Court of Appeal ruled earlier this year that the case can proceed.
The Court of Appeal specified that it cannot invalidate the legislation because of the notwithstanding clause but can issue a declaratory judgment on whether the law infringes on constitutional rights. It also affirmed that UR Pride can argue for the law’s annulment since the clause was not applied to Section 12 of the Charter, which guarantees freedom from cruel and unusual treatment. The province referenced other sections when invoking the notwithstanding clause.
Both UR Pride and the province lodged appeals and urged the Supreme Court of Canada to expedite the hearing alongside a challenge to a Quebec law that prohibits public sector workers from wearing religious symbols. Quebec also invoked the notwithstanding clause in its legislation. Adam Goldenberg, a Toronto lawyer representing UR Pride, underscored that the law violates Charter rights and has harmful effects on gender diverse youth, emphasizing the importance of compelling the government to defend the law with evidence.
Louis-Philippe Lampron, a constitutional law professor at Université Laval in Quebec, noted that the Supreme Court’s decision to hear the case reflects the evolution of Canadian law and highlights certain provinces’ appeal to populist sentiments. He emphasized that while populist movements may leverage the notwithstanding clause to garner support, the court challenge could exert pressure on legislatures to exercise caution in using the clause.
In Alberta, a similar legal dispute is brewing, with Premier Danielle Smith’s government invoking the notwithstanding clause to end a provincewide teachers’ strike and shield a back-to-work bill from legal challenges. The government in Alberta also intends to use the notwithstanding clause in three pieces of legislation pertaining to school pronouns, female sports, and gender-affirming health care. Although these laws have been passed, they are facing legal challenges.
One aspect of the law prohibiting doctors from providing gender-affirming health care to individuals under 16 is currently on hold, with Alberta contesting a judge’s interim injunction, arguing it was premature. Another bill mandates parental consent for youth to use different names or pronouns at school, while a third prohibits transgender girls from participating in amateur female sports. Premier Smith has indicated that no decision has been made yet on invoking the notwithstanding clause but suggested it might be necessary due to potential lengthy court proceedings.