Saskatchewan Premier Scott Moe is prepared to use the notwithstanding clause to protect a new rule requiring parental permission for transgender and non-binary students to use different names or pronouns in school.
Facing a legal challenge filed against the new education policy, Moe announced late last week that his provincial government would seek to enshrine the legislative changes that will be introduced this fall.
He recently told reporters that his government, the Saskatchewan Party, was prepared to use different “tools” to ensure the policy remained in place.
“If necessary, that would be one of the tools that would be looked at — yes,” Moe said in an interview Wednesday when asked if the escape clause was an option on the table.
“The notwithstanding clause is there for a reason: so that duly elected governments can represent their constituents when necessary. »
The notwithstanding clause is a provision of the Canadian Charter of Rights and Freedoms that allows federal, provincial and territorial governments to pa*s laws that override certain rights guaranteed by the Charter for a period of up to five years.
Debate over its use has intensified in recent years as the provincial governments of Ontario and Quebec have invoked it preemptively, preventing anyone from launching a legal challenge.
Moe is not committing at this stage to using the notwithstanding clause, calling it “but one of the tools” his government is considering to maintain the new naming and pronouns policy for children under 16 announced this summer.
“We are most certainly looking at all the tools that we have, knowing that the policy is in place and effective today and therefore it would be premature to say that we are using this or that tool,” he said on Wednesday.
“But you can be a*sured that the government will use all available tools, including the notwithstanding clause, should it be necessary to ensure that this policy is in place for the foreseeable future in Saskatchewan.”
In fashion now
The University of Regina’s UR Pride Center for Sexuality and Gender Diversity, which provides services to gender-diverse people in the provincial capital, is challenging Saskatchewan’s policy in court.
Egale Canada, a national organization that advocates for LGBTQ+ rights, is co-counsel in the case filed in the Saskatchewan Court of King’s Bench.
Bennett Jensen, Egale’s legal director, said he hopes no province will invoke the notwithstanding clause for such a policy, which is similar to the one New Brunswick announced this spring.
Jensen was speaking before Moe told the Canadian Press the escape clause was under review.
“This would require a government to say that it is using the notwithstanding clause to intentionally and knowingly violate children’s Charter rights, which seems to me to be completely unacceptable for a government to do,” said Jensen in a recent interview.
Jensen said Egale Canada is considering seeking intervener status in the lawsuit against the similar policy introduced by New Brunswick’s Progressive Conservative Premier Blaine Higgs. The Canadian Civil Liberties Association is leading this legal challenge.
Jensen argues that the Saskatchewan government is violating Charter rights regarding equality rights, as well as the “right to life, liberty and security of the person.”
Moe said the move was removed at the request of parents in the province.
A landmark 2018 study published in the Journal of Adolescent Health found that transgender youth able to use their preferred names and pronouns reported a 34% decrease in suicidal thoughts and a 65% decrease in suicide attempts.
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