Brandon Harder
Regina Leader-Post
The Supreme Court of Canada (SCC) has agreed to hear appeals on a ruling that allowed a court case targeting Saskatchewan’s pronoun consent law to proceed.
The nation’s highest court announced Thursday it granted the Saskatchewan government permission to appeal the ruling and it granted the UR Pride Centre for Sexuality and Gender Diversity (UR Pride) permission to cross-appeal.
However, a hearing date has yet to be posted on the SCC website.
Bill 137 and Section 33
The case dates back to August of 2023 when UR Pride took the Saskatchewan government to court over what was then a policy, arguing it was unconstitutional.
The policy was later replaced by a law known as the Parents’ Bill of Rights (PBR), or Bill 137, which requires students under the age of 16 to obtain parental or guardian consent for school staff to “use the pupil’s new gender-related preferred name or gender identity.”
Opponents of the law argue it disproportionally targets transgender and nonbinary youth, trampling their rights to safety, privacy and autonomy. Some have said it puts them in danger of potential physical, emotional or sexual violence.
The government has stated that the law allows parents “the assurance that they will be involved in important decisions involving their children,” and that information “will not be withheld” from parents.
The Saskatchewan government used what’s known as the notwithstanding clause to allow the law to stand regardless of whether it violates certain sections within Canada’s Charter of Rights and Freedoms.
The provincial government appealed to the SCC after an Aug. 11 split decision by a five-judge Saskatchewan Court of Appeal (SKCA) panel. Among other things, the majority of the panel (four out of five) concluded that a judge can still consider whether the law violates rights despite the government’s employment of the notwithstanding clause.
National importance
Bill 137 uses the notwithstanding clause to operate in spite of Charter sections which guarantee life, liberty and personal security (Section 7) as well as equality (Section 15(1)). Those specific sections were listed in the text of the PBR.
According to government appeal documents, it’s a question of national importance to determine if the clause stops a judge from reviewing and declaring whether the law violates the listed Charter sections.
In its ruling, the SKCA majority found that the notwithstanding clause does not prevent such actions, which the Saskatchewan government asserts was an error.
After the PBR was brought in, UR Pride amended its case to argue the law also violates Section 12 of the Charter, which protects Canadians from cruel and unusual treatment or punishment (and is notably not listed within the text of the PBR).
The government effectively viewed this as an attempt at an end-run around its use of the notwithstanding clause.
The government’s documents also suggest it’s a question of national importance whether amendments “aimed at evading” a valid use of the notwithstanding clause are “inconsistent with the proper purpose of constitutional litigation?”
The SKCA ruled that adding the Section 12 challenge by UR Pride was not an abuse of process, which the government also asserts was an error.
— with files from Larissa Kurz and Nykole King
