Saskatchewan pronoun consent law case can proceed following appeal court ruling

UR Pride’s legal action originally sought to halt the implementation of what was then a government policy and have it declared 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.”

In his decision on Feb. 16, 2024, Court of King’s Bench Justice Michael Megaw granted amendments, which allowed UR Pride to target the law that followed the policy, as well as to tack on a further constitutional challenge.

Notwithstanding clause and argument

The PBR uses what’s known as the notwithstanding clause, which allows it to stand regardless of whether it violates certain sections of the Charter of Rights and Freedoms — namely guarantees to life, liberty and personal security (Section 7), as well as equality (Section 15(1)).

Private lawyers from the firm MLT Aikins representing the government argued in September 2024 that, given the invocation of the notwithstanding clause, the court no longer had jurisdiction to weigh in on whether the law violates sections of the Charter listed within the law’s text. They argued the case should have been dismissed for being moot and suggested the addition of a further constitutional challenge was an attempt to get around the government’s lawful actions, amounting to an abuse of process.

UR Pride disputed the government’s positions and argued there is nothing precluding the court from declaring whether the law violates certain constitutional rights.

The majority and the dissent

The majority decision, written by SKCA Chief Justice Robert Leurer and representing the opinion of four of five judges who ruled on the case, dismissed the government’s appeal in all but one area. The decision says the portions of UR Pride’s action seeking to have the policy that preceded the law declared unconstitutional “must be struck for mootness.”

But the majority ruled that the Court of King’s Bench has the jurisdiction to decide whether the PBR (specifically, what is now Section 197.4 of the Education Act and concerns “Consent for change to gender identity”) limits rights under sections 7 and 15(1) of the Charter and to issue a declaration to that end.

Further, the SKCA majority decision concludes UR Pride may also seek a declaration that the section of law is of “no force and effect” based on a violation of Section 12 of the Charter, which protects Canadians from cruel and unusual treatment or punishment.

Within the text of the PBR, Section 12 is not listed among the sections of the Charter that the law can operate in spite of. UR Pride’s late addition of a challenge that the law violates this section is what the government argued was an abuse of process.

The majority decision emphasizes that it is not concluding the provincial law limits any of the aforementioned rights. That issue was not one the appeal judges were tasked with deciding.

Further, it states that while the lower court has the power to examine whether the law limits rights under sections 7 and 15(1), “there is no finding contained in this judgement that it will or should do so.”

The dissenting decision, held by and written by SKCA Justice Neal Caldwell, concluded he would grant an order declaring that “the courts are without jurisdiction to determine or declare” whether the provincial law violates sections 7 and 15(1) of the Charter. Further he would deny UR Pride the ability to amend its action to “claim declaratory relief” in respect to Section 12.

Reactions

Reacting to the decision, a spokesperson sent an emailed statement on behalf of the government.

“Our government will always protect parents’ rights to be involved in their children’s education, which is why we introduced Bill 137, The Parents’ Bill of Rights. Those parental rights were enshrined using the notwithstanding clause of the Charter and that law remains in effect,” the statement reads.

“We are still reviewing the decision to determine next steps. As the matter remains before the Courts, we will not comment further.”

A statement sent out on behalf of several Saskatchewan NDP opposition MLAs suggested the government had wasted “thousands and thousands of taxpayer dollars” fighting the case.

“Instead of continuing this witch hunt and forcing taxpayers to foot the bill, the Sask. Party should repeal Bill 137 and focus on what really matters to Saskatchewan people: fixing healthcare, stopping crime, and lowering costs for families,” the NDP statement reads.

Egale Canada, a LGBTQ+ rights organization providing legal support to UR Pride, circulated a statement saying it was pleased with the outcome of the appeal.

“The Court of Appeal’s decision upholds the rule of law in Canada and, in particular, reinforces the critical role of the courts in determining the constitutionality of government action.”