Saskatchewan Premier Scott Moe says his government will defend its rule requiring parental permission for transgender students under the age of 16 to use different names or pronouns at school, even if it means using the controversial notwithstanding clause in the Charter.
The premier announced last week that his government hopes to have the new policy cemented in legislation by the fall. Moe said the impetus for the new policy was a strong push from Saskatchewan parents.
In an interview with CBC News on Wednesday, Moe said that “If necessary, that would be one of the tools that would be under consideration – yes,” regarding the possibility of using the notwithstanding clause as an option.
“The notwithstanding clause is present for a reason — so that duly elected governments can represent their constituents when necessary,” said Moe.
The notwithstanding clause, embedded in section 33 of the Canadian Charter of Rights and Freedoms, allows provinces to override some findings of unconstitutionality and thus protect legislation against being scrapped by the courts.
The provincial government is facing a court challenge from the UR Pride Centre for Sexuality and Gender Diversity at the University of Regina. UR Pride is being represented by Egale Canada, an LGBTQ+ advocacy group.
Egale’s legal director Bennett Jensen, said he hopes it won’t come down to the province invoking the notwithstanding clause, similar to how the New Brunswick government handled the issue earlier this year, which is being challenged by the Canadian Civil Liberties Association.
Egale Canada is also considering requesting intervener status in the case against New Brunswick Premier Blaine Biggs, over a similar policy implemented by his government.
“That would require a government saying that they are using the notwithstanding clause in order to intentionally, knowingly violate the charter rights of children, which strikes me as wholly unconscionable for a government to do,” said Jensen in an interview.
Jensen claims that the policy is in violation of Charter rights regarding the, “right to life, liberty and security of the person.”
Moe said that his government will use a variety of “tools” to make sure the policy is upheld.
The notwithstanding clause is a provision in the Charter of Rights and Freedoms that allows laws to be passed at provincial, federal and territorial levels of government, regardless of the fact that the law may override Charter rights, for as many as five years after its passed.
Ontario and Quebec have both invoked the notwithstanding clause preemptively to ensure protect against prospective legal challenges.
Moe hasn’t officially announced whether or not he will use the notwithstanding clause, but has said that it’s “one of the tools” his government is looking into in order to keep the new pronoun and naming policy in place.
“We most certainly are looking at all the tools that we have available, understanding that the policy is in place and effective today and so it would be premature to say that we are using this tool or that tool,” said Moe on Wednesday.
“But you can have the assurance that the government will utilize any and all tools available, up to and including the notwithstanding clause, should it be necessary to ensure this policy is in place for the foreseeable future in Saskatchewan.”
