Sask. Premier Scott Moe Stands Behind Decision to Use Notwithstanding Clause for Pronoun Policy

Saskatchewan Premier Scott Moe looks on during a tour at Lakewood Civic Centre in Saskatoon, Sask., on Sept. 29, 2023. (The Canadian Press/Heywood Yu)

Saskatchewan Premier Scott Moe says his government is committed to putting into law a policy that would require schools to seek parents’ permission if their child wants to change identities at school.

On Aug. 22, Mr. Moe’s government announced a policy that would require schools to get the permission of parents for students expressing a desire to change pronouns if they are under the age of 16.

A legal challenge brought by an LGBT peer support group based in Regina has resulted in the Saskatchewan Court of King’s Bench approving an injunction until the court can make a decision.

However, Mr. Moe said his government will use the notwithstanding clause in the Canadian Charter to bring the policy into effect. He reiterated his position on Friday when reporters questioned him.

“We feel there’s paramount importance to provide clarity to parents, to families, and ultimately to school divisions and educators that are in our classrooms across the province,” Mr. Moe said with regard to his decision to recall the MLAs back to work early.

“We’ve said for a number of weeks now that there are tools available to the government to ensure that this policy is in place moving forward to the next number of months and years, and that is going to be the case.”

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Mr. Moe also told reporters his goal was to pass the legislation as quickly as possible, so it “really lines up with what we have been saying for a number of weeks.”

Support for Students

Mr. Moe said his government has been looking at supports that could be useful for children and their families on these issues.

“We’re looking at some of the rapid access counseling services that we have expanded. I think we have them available to adults and 30 communities, now expanding 13 of those communities to youth,” he told reporters.

“A year or two ago we had made a commitment to work with school divisions to ensure that at least one individual in each school has some mental health training to identify some of the challenges that our children might be facing,” Mr. Moe added. “I think this is a very good time for the next few weeks for the government to be looking at what services we have in place to support children, to support our students, in addition to supporting the inclusiveness of our families in our education system.”

Court Challenge

The UR Pride Centre for Sexuality and Gender Diversity filed a court challenge shortly after Mr. Moe announced his policy. The group sought an injunction, and it was granted on Sept. 28.

In the written decision published by CBC News, Justice M.T. Megaw said he believed the policy needed to be paused until a court could determine the issue.

“On the whole of the evidence, I am satisfied that those individuals affected by this Policy, youth under the age of 16 who are unable to have their name, pronouns, gender diversity, or gender identity, observed in the school will suffer irreparable harm,” Justice Megaw wrote in the decision.

He added that the Saskatchewan government is not entitled to a “free pass at this stage of the inquiry.”

The Saskatchewan Teachers Federation (STF) has called the policy dangerous and harmful to students.

“This policy raises questions of human rights and is in opposition to the United Nations Convention on the Rights of the Child,” the STF said in a news release on the day Mr. Moe announced the policy.

“Parents and guardians must always play a role in the educational lives of children,” STF President Samantha Becotte said.

“However, to suggest this is the motivation for these announcements stretches the Minister’s credibility considerably. Government states that they believe in safe and caring schools, and yet student safety and quality of education are being sacrificed to meet this government’s political needs.”

Saskatchewan’s Advocate for Children and Youth Lisa Broda also expressed concern over the policy.

“We agree with the government’s desire to place a high importance on the involvement of parents and guardians in education,” said Ms. Broda in a news release.

“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.”

An Angus Reid poll conducted in August found that 78 percent of people across Canada believe parents should be informed if their children want to change their identity. That number was 86 percent in Saskatchewan.

Notwithstanding Clause

Following the court decision, Mr. Moe announced on X that he was recalling the legislature and his government would use the notwithstanding clause in the Canadian Constitution to put its policy into effect.

He told reporters that the clause had been developed for situations when rights collide.

“When those rights collide, the notwithstanding clause was provided to ensure that the elected government of the day would be able to make the decision on as to which of those rights would be in effect for the people that they ultimately represented. In this case, that’s the rights of a parent to ensure they’re involved in their children’s decision.”

According to researchers, Saskatchewan has used the clause before in the middle of a court challenge.

In 1980, the province used it to protect back-to-work legislation after a Saskatchewan court of appeal found the legislation interfered with the Charter’s freedom of association.

At the time, the government was appealing the appeal court decision. The Supreme Court of Canada upheld the province’s position that the legislation did not violate the Charter right.