A Regina judge has ruled that the Saskatchewan government’s naming and pronoun policy should be paused for the time being, but Saskatchewan’s premier says he’ll use the notwithstanding clause to override it.
Judge says policy cannot be implemented, enforced until court rules on its legitimacy
Jason Warick · CBC News
A Regina judge has ruled that the Saskatchewan government’s naming and pronoun policy should be paused for the time being, but Premier Scott Moe says he’ll use the notwithstanding clause to override it.
Moe, responding to today’s injunction issued by a Regina Court of King’s Bench Justice Michael Megaw, said he intends to recall the legislature Oct. 10 to “pass legislation to protect parents’ rights.”
“Our government is extremely dismayed by the judicial overreach of the court blocking implementation of the Parental Inclusion and Consent policy – a policy which has the strong support of a majority of Saskatchewan residents, in particular, Saskatchewan parents,” Moe said in a written statement Thursday afternoon. “The default position should never be to keep a child’s information from their parents.”
Last month, the province announced that all students under 16 needed parental consent to change their names or pronouns.
Moe previously said he stands by the policy and that the province will do everything in its power to protect parental rights. The notwithstanding clause is a provision that allows governments to override certain Charter rights for up to five years when passing legislation. The clause can only override certain sections of the charter which deal with fundamental freedoms, legal rights and equality rights — but can’t be used to override democratic rights. Once invoked, the notwithstanding clause prevents any judicial review of the legislation in question.
LISTEN | The notwithstanding clause explained:
Blue Sky49:11The notwithstanding clause explained
A Court in Regina is hearing an application for an injunction to stop the province from implementing a policy effecting students who choose to use different names or pronouns in school. The Policy says parents must be informed. Meanwhile the children’s advocate has released a report critical of the policy. The reaction from the Saskatchewan Party government has been a promise to enshrine the policy in law using the Charter’s notwithstanding clause. That would render any court order moot and allows governments to override sections of the Charter of Rights and Freedoms. Today on Blue Sky we were joined by constitutional law expert Eric Adams for a closer look at the notwithstanding clause – why it was included in the constitution, what rights can be overridden and what safeguards are in place.
Judge grants injunction to halt policy
Earlier Thursday, Megaw issued his 56-page ruling ordering the policy be put on hold until a full hearing can take place.
“I determine the protection of these youth surpasses that interest expressed by the government, pending a full and complete hearing,” Megaw wrote.
UR Pride filed a lawsuit calling for the policy to be struck down. Their position was that it could cause teachers to out or misgender children and that policy violates the Charter of Rights and Freedoms.
Last week, lawyers for UR Pride argued for an injunction, pending a ruling in the lawsuit.
The province’s lawyers say the policy has been misinterpreted. They say parents should be involved when their children decide to change their names or pronouns.
The decision by Megaw stops the policy for now.
Megaw wrote that until there can be a full hearing, “the importance of the governmental policy is outweighed by the public interest of not exposing that minority of students to exposure to the potentially irreparable harm and mental health difficulty of being unable to find expression for their gender identity.”
Megaw ruled the policy cannot be implemented or enforced until its legitimacy has been decided by the court.
Arguments for and against the policy are slated to be heard in court in November. Megaw said that should provide a timely resolution for all parties, so it’s best to pause the policy until then.
“This matter will be heard quickly and well before the first semester at school is completed. This necessarily means that the injunction should have a limited duration,” he wrote.
Megaw also said the government “does not appear to advance an argument that such treatment of the younger students is in their best interests or will, necessarily, lead to better outcomes for them from a mental health perspective. Nothing in the policy recognizes… the need for professional assistance for those students with gender dysphoria.”
NDP Opposition education critic Matt Love said it’s clear the pronoun policy should be “scrapped” immediately.
“The government should not come forward with legislation in the fall sitting to put this policy into law, and they certainly shouldn’t do so relying on the notwithstanding clause to push this policy forward,” Love said in a written statement.
“The Children’s Advocate has already determined that this policy violates the rights of vulnerable children.”
Read the injunction ruling here:
ABOUT THE AUTHOR
Jason Warick is a reporter with CBC Saskatoon.
with files from The Canadian Press