(Regina) A judge has given the green light to a legal challenge to the Saskatchewan government’s law that requires parental consent for children under 16 who want to change their first or pronoun at school.
Justice Michael Megaw concluded that the court could hear the challenge under the Canadian Charter of Rights and Freedoms even if the notwithstanding clause was invoked by the legislature.
It was the Regina-based LGBTQ organization “UR Pride” that asked Judge Megaw last month to authorize the legal challenge. His lawyers argued that the law limited the rights of gender-diverse youth to a safe school environment.
Lawyers for the Saskatchewan government argued that the law did not violate the Charter of Rights and was passed in the best interests of children of diverse genders.
The Saskatchewan Party government anyway maintains that the Charter of Rights was not violated because Premier Scott Moe’s government used the notwithstanding clause in the wording of the law.
This provision, provided for in the Charter, allows governments to derogate from certain constitutional rights for a period of five years.
“UR Pride itself recognizes that its claim here lies in somewhat uncharted territory,” Justice Megaw wrote. However, the fact that UR Pride has a steep hill to climb in this regard does not mean that it should not be given the opportunity to undertake it in an effort to illustrate that the hill can be conquered. »
Judge Megaw’s decision allows UR Pride and the government to provide all their evidence and arguments to the court, which will decide what happens next.
Judge Megaw said he declined at this stage of the proceedings to consider the government’s claim that the case is moot.
“A difficult claim, a new claim, or even a claim that resembles a mountain, is not analogous to a claim already doomed to failure,” the judge wrote. There is no reason here to deny the plaintiff the opportunity to present his challenge. »
New Brunswick and Alberta
Saskatchewan is not the only province to review its policy in this area. Last year, New Brunswick adopted policies for young people who question their sex assigned at birth, introducing rules requiring students aged 16 and under to obtain parental permission before changing their first name or pronoun at school.
Alberta went even further and promised to adopt its changes next fall. Premier Danielle Smith said parental consent would be required for students aged 15 and under who want to change their first or pronoun at school. Students aged 16 and 17 would not need consent, but their parents would need to be informed.
Alberta also plans to ban gender reassignment surgery for those 17 and under. There shall be no puberty blockers or hormonal treatment for the purposes of such surgery for any person 15 years of age and under, unless they have already started such procedures.
And there are planned restrictions on transgender women’s participation in women’s sports.
Mme Smith explained that these changes are intended to protect children from the consequences of choices they may later regret, but also to preserve the role of parents. It does not rule out using the notwithstanding clause to make these changes.
As in Saskatchewan, the changes in Alberta have sparked protests and raised concerns from legal and health professionals.
This week, 36 law professors and researchers from Alberta’s two largest universities urged the Smith government to reconsider its decision, saying the changes violated several sections of the Charter and could amount to “cruel and unusual treatment.”