Notwithstanding clause looms over preferred pronoun legal action

The policy “clearly discriminates against transgender children who are unable or unwilling to seek parental consent for the use of their preferred name and pronouns,” the advocate concluded in her report.

“We agree with the government’s desire to place a high importance on the involvement of parents and guardians in education,” Lisa Broda, provincial advocate for children and youth, said in a media release that accompanied her 41-page report released late Friday afternoon.

“However, this objective can be achieved without imposing such strict rules around consent, which could result in a violation of a young person’s rights under provincial, constitutional, and international human rights laws.”

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Broda added in her report the policy “clearly discriminates against transgender children who are unable or unwilling to seek parental consent for the use of their preferred name and pronouns.”

Children have rights, same as anyone else in Canada, the advocate noted, using the example that Saskatchewan currently prevents parents from accessing their children’s eHealth records without consent once the child is 14.

In light of that, Saskatchewan’s children’s advocate quoted her New Brunswick counterpart: “(the) fact that the state has a duty to minimally interfere with the family is not the same as saying that the parent has unlimited rights to interfere with the child.”

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“The Sask. Party’s outing policy violates the rights of children. This policy should be scrapped,” Opposition education critic Matt Love said in a brief statement Friday in response to the report.

“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 last time the province invoked Section 33 of the Charter of Rights and Freedoms was under Premier Brad Wall in 2017 in response to a, then, Court of Queen’s Bench decision that ruled governments should not be allowed to give funding to Catholic schools for non-Catholic students.

Wall was the second premier in Saskatchewan’s history to invoke the notwithstanding clause.

Speaking before the release of the Advocate’s report, Sarah Burningham, assistant professor at the College of Law at the University of Saskatchewan, said a tool like the notwithstanding clause allows for policy and laws to be brought into action which “immunizes those rights from judicial scrutiny to see whether they violate the Charter.”

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Burningham did not comment on the policy and did not offer an opinion on using the notwithstanding clause in this instance, instead offering background on the section of the constitution.

“Essentially it lets the government legislate notwithstanding certain rights,” said Burningham. “It allows the government to pass laws that violate certain rights in our Charter.”

She said on the one hand the decision can be seen as drastic.

“We have a charter that protects our rights and then we have this law that is an act, of notwithstanding those rights, the government can run roughshod over those rights and we lack the usual protections where I can go to court and a judge can evaluate to make sure it complies with our with our Charter,” she said.

But at the same time, Section 33 is legal and within the Charter. “It’s as legitimate as the rest of the charter. That’s what was agreed to and it’s in the Constitution,” said Burningham.

— with files from The Canadian Press

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