The Saskatchewan government will use the notwithstanding clause of the Constitution and pass legislation this fall to ensure the province's pronoun policy remains in place, Premier Scott Moe said Thursday. 

Moe made the comment shortly after a judge granted an injunction to pause the policy that requires parental consent when children under 16 want to go by different names and pronouns at school.

Moe said in a statement he’s extremely dismayed by the injunction, calling it judicial overreach.

He said the policy has strong support from the majority of Saskatchewan residents and parents.

"The default position should never be to keep a child's information from their parents," Moe said. 

He said he will recall the legislative assembly on Oct. 10 and use the notwithstanding clause, a provision that allows governments to override certain Charter rights for up to five years.

Earlier Thursday, Court of King's Bench Justice Michael Megaw ordered the injunction until a constitutional challenge can be heard in court. The challenge is set to be heard in November.

"The protection of these youth surpasses that interest expressed by the government, pending a full and complete hearing into the constitutionality of this policy," Megaw wrote in his 56-page decision. 

"I find this to be one of those clear cases where injunctive relief is necessary to attempt to prevent the irreparable harm referred to pending a full hearing of this matter on its merits."

Lawyers for UR Pride sought the injunction, arguing the policy could cause teachers to out or misgender children and that it violates the Charter of Rights and Freedoms. 

Saskatchewan's child advocate Lisa Broda has also said it violates rights to gender identity and expression.

Adam Goldenberg, the lead counsel for UR Pride, said in an emailed statement Moe's plans to use the notwithstanding clause "is frankly shocking."

Bennett Jensen, co-counsel for UR Pride and director of legal at Egale Canada, urged the government to conduct robust consultation. Egale is a national organization advocating for LGBTQ rights. 

"Together, we can ensure that parents’ roles are fully respected without putting the most vulnerable young people in harm’s way," Jensen said.

Opposition NDP education critic Matt Love told reporters the province should not use the notwithstanding clause to implement the policy. Instead, the province should rely on the court's decision, he said.

"They're going with a sledgehammer approach to a problem," Love said. 

In his decision, Megaw cited evidence from health professionals who said children experience psychological harm when their identities are invalidated. 

The professionals, who submitted affidavits in support of UR Pride's application, also said parents and peers who support and recognize children's pronouns will see an improvement in the child's mental health. 

"I am satisfied that those individuals affected by this policy, youth under age 16 who are unable to have their name, pronouns, gender diversity, or gender identity, observed in school will suffer irreparable harm," Megaw wrote.

The government supplied evidence from Erica Anderson, a clinical psychologist from the United States, who said youth who "socially transition" are making an important decision and that reversing it can be "psychologically hard."

Megaw noted Anderson did not provide a comment on the severe mental health and physical abuse gender-diverse youth could suffer if they don't have supportive parents. 

He also said the government's argument that a six-year-old would ask to be identified by a different name, pronoun or gender "lacks persuasiveness" and is "without foundation or basis on the materials that are before the court."

The Ministry of Education took nine days in August to finalize a draft of the policy, releasing it four days later to the public and school divisions.

It also received 18 letters, submitted from June to August, from people who said they support New Brunswick's pronoun policy, which is similar to Saskatchewan's. Seven of those who wrote the letters identified as parents of schoolchildren.

Megaw said this evidence, submitted in an affidavit by Education Ministry Assistant Deputy Minister Michael Walter, lacked information.

"There is no indication in Mr. Walter's affidavit that the ministry discussed this new policy with any potential interested parties such as teachers, parents or students," he wrote. 

He added there also was no indication the government sought expert or legal assistance to determine the effect of the policy and its constitutionality. 

The federal justice minister said in a statement that the injunction should have given the Saskatchewan government pause.

"A judge agreed that what the government is doing may cause irreparable harm to some of its most vulnerable young people," said Arif Virani. "Just as important, they are acting before a court has had the opportunity to review their proposed policy for its constitutionality. 

"Violating individual rights should not be a decision taken lightly.”

This report by The Canadian Press was first published on Sept. 28, 2023. 

What is the notwithstanding clause? An explainer on the rarely used provision

Saskatchewan Premier Scott Moe has pledged his government will use the notwithstanding clause of the Constitution and pass legislation this fall to ensure the province's school pronoun policy remains in place. 

He made the comment shortly after a judge granted an injunction to pause the policy, which requires parental consent when children under 16 want to go by different names or pronouns at school. Lawyers for UR Pride sought the injunction, arguing the policy could cause teachers to out or misgender children, violating the Charter of Rights and Freedoms.

Court of King's Bench Justice Michael Megaw ordered the injunction until a constitutional challenge can be heard in court, a decision Moe called "judicial overreach."

Here is a look at the rarely used clause: 

WHAT IS IT?

The notwithstanding clause — or Section 33 of the Charter of Rights and Freedoms — gives provincial legislatures or Parliament the ability, through the passage of a law, to override certain portions of the Charter for a five-year term.

ITS ORIGINS

The clause in its current form came about as a tool to bring provinces onside with then-prime minister Pierre Trudeau's signature piece of legislation. With Charter negotiations ramping up in the early 1980s, Trudeau didn't see the need for the clause, but provinces such as Alberta and Saskatchewan wanted an out should they disagree with a decision of the courts. In the end, Trudeau reluctantly agreed. 

ITS STRUCTURE

The clause only applies to certain sections of the Charter. For instance, it can't be used against provisions that protect the democratic process — that would create a pathway to dictatorship. The clause also can't be used for more than five years at a time. This ensures that the public has the chance to challenge a government's decision to use the clause in a general election before it can be renewed.

ITS USE

The notwithstanding clause usually comes up whenever there is a controversial court ruling. For instance, former prime minister Stephen Harper's Conservatives were asked about, but refused to use, the clause on a court decision involving assisted dying. While often debated, its use is much rarer. Quebec, as the only provincial government to oppose the Charter, passed legislation in 1982 that invoked the clause in every new law, but that stopped in 1985. In 1986, Saskatchewan used the clause to protect back-to-work legislation and Quebec used it again in 1988 to protect residents and businesses using French-only signs. Alberta tried to use the clause in a 2000 bill limiting marriage to a man and a woman, but that failed because marriage was ruled a federal jurisdiction.

RECENT NOTABLE USES 

Last year, the Ontario government invoked the notwithstanding clause to pass legislation imposing contracts on approximately 55,000 education workers in the province — including librarians, custodians and early childhood educators — and ban them from going on strike. 

In 2021, Ontario's Progressive Conservative government used the notwithstanding clause to restore parts of the Election Finances Act that had been declared unconstitutional. It means third parties can only spend $600,000 in the 12 months before an election is called. 

Quebec proactively used the notwithstanding clause when it passed a major reform to its signature language law last year. Bill 96 reasserts the right of Quebecers to live and work in French. and toughens sign laws and language requirements for businesses, governments and schools.

Quebec also pre-emptively used the clause in passing its religious symbols law. Bill 21 was adopted in June 2019 and prohibits public sector workers who are deemed to be in positions of authority, including teachers, police officers and judges, from wearing religious symbols such as hijabs and turbans on the job.

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This report by The Canadian Press was first published Sept. 28, 2023.

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