Gender Dysphoria Group, Parents’ Group Granted Intervener Status in Legal Challenge Against Sask. Parental Rights Policy

Premier Scott Moe speaks at the University of Saskatchewan campus in Saskatoon, on June 28, 2022. (The Canadian Press/Liam Richards)

A legal challenge against Saskatchewan’s parental rights policy is underway, with a court granting joint intervener status to both a gender dysphoria support group and a parents’ advocacy group.

The Justice Centre for Constitutional Freedoms (JCCF) announced on Sept. 20 that the Saskatchewan Court of King’s Bench has granted intervenor status to the Gender Dysphoria Alliance (GDA), formed in 2021 by two trans men, and Alberta-based Parents for Choice in Education (PCE).

Both the GDA and PCE are arguing that the best interests of children are protected by their informed parents, JCCF said.

In the court action, the UR Pride Centre for Sexuality Gender Diversity (UR Pride), an organization representing LGBT people in Regina, seeks to halt the province’s policy requiring schools to obtain parents’ consent before changing the name and pronoun of their children under 16.

The request for an injunction was submitted by UR Pride on Aug. 31 in response to the “new parental inclusion and consent policies for Saskatchewan schools” announced by the Saskatchewan government on Aug. 22, which came into force that day.

A full hearing is scheduled for Nov. 20-21, JCCF said. On Sept. 19, the court heard arguments from UR Pride’s lawyers to pause the parental rights policy until its constitutionality can be determined. According to the JCCF, the court had previously declined three requests for an immediate halt to the policy and is now considering a final request.

‘Foundational Principle’

Andre Memauri, JCCF lawyer and counsel for the GDA and PCE, says the joint application by his clients on Sept. 5 for intervenor status is based on the “foundational principle that children’s constitutional rights are protected by the informed involvement of their parents.”

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“The Court is facing the argument that requiring schools to have parents’ consent before changing the name and gender of their children violates the constitutional rights of those children. Such an outcome would be harmful to the parent-child and parent-school relationship, and ultimately would undermine the security of the children in this vulnerable group,” Mr. Memauri said in the Sept. 20 press release.

“Only in rare exceptions can excluding parents be justified.”

One of the points stated in the application is that Canadian law recognizes parents as the “primary decision makers of their children for all significant decisions, including being charged with the responsibility of the education and moral upbringing of their children.”

During the hearing on Sept. 19, lawyers for UR Pride described the province’s policy as discriminatory, saying it could result in teachers misgendering students who are unable to get their parents’ consent. They also argued that the policy will put students at risk if they aren’t accepted at home, while the repercussions violate the Charter of Rights and Freedoms, including equality rights and the right to security of the person.

Adam Goldenberg, one of the lawyers representing UR Pride, said the policy does not account for the “mature minor” doctrine, a common-law rule that gives mature children autonomy. He further argued that there’s “expert evidence” that the parent consent policy could cause “a range of irreparable harm, including extreme irreparable harm” to children.

‘Unnecessarily Inflammatory’

The province opposed the injunction and argued that the policy has been misinterpreted by UR Pride and their lawyers.

“It’s my submission that those submissions are inaccurate and unfair, and they’re unnecessarily inflammatory,” said Mitch McAdam, one of the province’s lawyers. “The court needs to look at what the policy actually says and make a ruling based on what the policy says.”

Mr. McAdam said students who are concerned they won’t receive parental consent are to be provided with professional counselling at school until they are ready to seek consent. He also argued that the issue is about “drawing distinctions based on age.”

“Is it 16, as determined by the Ministry of Education? Or is it somewhere else? Is it 13, 14? Because, surely, it won’t be 12,” he said.

Justice Michael Megaw, who heard the injunction application, reserved his decision. He granted intervenor status to the GDA and PCE, along with three other organizations, namely the Canadian Civil Liberties Association, John Howard Society, and Women’s Legal Education.

“There is nothing in the materials or submissions to suggest that any of the intervenors will prejudice either of the parties,” the judge wrote in his ruling on Sept. 19. “All of the intervenors have provided their assurances that they do not intend to transform the Court into a political arena. Rather, they seek to advance specific arguments from their unique perspective and experience.”

‘Irreplaceable Role’

In a statement on Sept. 20, GDA executive director Aaron Kimberly said departures from sound evidence about gender dysphoria have led to missteps in policy and health care in ways that are harmful to persons with gender dysphoria and to society in general.

“The social transition of children without clinical or parental oversight is one such misstep,” said the director in a release.

“Parents have an irreplaceable role in understanding possible underlying causes of gender dysphoria and/or transgender identity in their children. Their involvement, and the oversight of competent clinicians, is crucial to protecting the child’s best interests.”

PCE executive director John Hilton O’Brian, in his statement on Sept. 20, said his organization believes that “the greatest allies and protectors of children are their own parents.”

”We are aware that harm to children—particularly those with existing mental and emotional challenges—has resulted from school staff addressing issues of gender and sexuality without proper parental involvement.”

Saskatchewan Premier Scott Moe has said he stands by his policy and that the province will do everything in its power to protect parental rights. He added he would consider using the notwithstanding clause, a provision that allows governments to override certain charter rights for up to five years.

The Canadian Press contributed to this report.