Saskatchewan Premier Scott Moe is willing to use the notwithstanding clause to protect a new rule requiring parental permission for transgender and non-binary students under 16 to use different names or pronouns at school.
Faced with a court challenge against the new education policy, Moe announced late last week that his provincial government would try to enshrine changes in legislation that will be introduced this fall.
He recently told reporters his Saskatchewan Party government was willing to use different “tools” to ensure the policy stayed in place.
“If necessary, that would be one of the tools that would be under consideration… yes,” Moe said in an interview Wednesday when asked if the notwithstanding clause was an option on the table.
“The notwithstanding clause is there for a reason: so that duly elected governments can represent their constituents when necessary.”
The notwithstanding clause is a provision of the Charter of Rights and Freedoms that allows federal, provincial and territorial governments to pass laws that override certain Charter rights for up to five years.
Debate over its use has intensified in recent years as the provincial governments of Ontario and Quebec have preemptively invoked it, effectively preventing anyone from launching a legal challenge.
Moe is not committing at this time to using the notwithstanding clause, calling it “just one of the tools” his administration is considering to maintain the new name and pronoun policy for children under 16 announced this summer.
“We’re certainly looking at all the tools we have available, understanding that the policy is in place and effective today, so it would be premature to say we’re using this tool or that tool,” he said Wednesday.
“But you can rest assured that the government will use any and all tools available, including the notwithstanding clause, if necessary to ensure this policy is in place for the foreseeable future in Saskatchewan.”
The University of Regina’s UR Pride Center for Sexuality and Gender Diversity, which provides services to gender diverse people in the provincial capital, is challenging Saskatchewan’s policy in court.
Egale Canada, a national organization that advocates for LGBTQ+ rights, is co-counsel in the case brought before the Saskatchewan Court of King’s Bench.
Bennett Jensen, Egale’s legal director, has said he hopes no province chooses to invoke the notwithstanding clause for such a policy, which is similar to one New Brunswick announced this spring.
Jensen was speaking before Moe told The Canadian Press that the non-detriment clause is being considered.
“That would require a government to say that it is using the notwithstanding clause to intentionally and knowingly violate children’s constitutional rights, which I find totally inconceivable for a government to do,” Jensen said in a recent interview.
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Jensen said Egale Canada is considering seeking intervener status in the case against a similar policy introduced by New Brunswick Progressive Conservative Premier Blaine Higgs. The Canadian Civil Liberties Association is leading that legal challenge.
Jensen maintains that the Saskatchewan government is violating Charter rights to equal rights, as well as the “right to life, liberty and security of the person.”
Moe said it was removed at the request of parents in the province.
A landmark 2018 study published in the Journal of Adolescent Health found that transgender youth who can use their preferred names and pronouns reported a 34 percent decrease in suicidal thoughts and a 65 percent decrease in suicide attempts.