Keep notwithstanding clause out of school pronoun policies: justice minister

Ottawa -

A "blunt instrument" like the notwithstanding clause has no place in the debate over what parents are entitled to know from schools about their child's gender identity, Canada's justice minister said Thursday.

Justice Minister Arif Virani said as a father of two, he understands the desire for parents to be involved in the big decisions their children make.

"What I don't appreciate is having the insertion of a blunt instrument like the notwithstanding clause into that equation," he said Thursday in a brief interview while at the Liberal caucus retreat in London, Ont.

"I don't think that is appropriate."

Saskatchewan Premier Scott Moe said in an interview Wednesday that he is ready to use the notwithstanding clause to protect a new education rule in his province. The policy, which took effect when the school year began, requires teachers to get parental permission in order for transgender and nonbinary students under 16 to use different names or pronouns at school.

After a court challenge was launched against the new rule, the Saskatchewan Party government announced a plan to enshrine it in legislation to be introduced this fall.

Moe confirmed on Wednesday that he is considering using the notwithstanding clause — the provision in 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 — to do so.

Moe said the notwithstanding clause is "but one of the tools" his government could use to keep the policy in place.

"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," Moe said.

Virani said he joins others in the Liberal government in being concerned about premiers invoking the clause pre-emptively, as was done in recent years by premiers in Quebec and Ontario, effectively cutting off any Charter challenges.

"We just have a policy that hasn't even been codified into law," he said of Saskatchewan's case.

"Let's let those processes run their course."

The UR Pride Centre for Sexuality and Gender Diversity at the University of Regina, which offers services to gender-diverse individuals around the provincial capital, is the group challenging Saskatchewan's policy in court.

Egale Canada, a national organization that advocates for LGBTQ+ rights, is co-counsel in the case. A judge recently granted the government's request for more time to prepare to argue the constitutionality of the policy but said an injunction hearing will proceed next week as scheduled.

Bennett Jensen, the legal director at Egale, has said he hopes no province invokes the notwithstanding clause for such a policy.

"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," Jensen said in a recent interview, before Moe confirmed the notwithstanding clause is being considered.

Jensen said Egale Canada may seek intervener status in the case against the similar policy brought in by New Brunswick Progressive Conservative Premier Blaine Higgs. The Canadian Civil Liberties Association is spearheading that legal challenge.

Jensen argues the Saskatchewan government is violating the Charter rights to equality as well as the "right to life, liberty and security of the person."

He said the main reason his organization got involved is due to the degree of harm a young student could face if they were "outed" to their parents, "no matter the consequences."

A landmark 2018 study published in the Journal of Adolescent Health found transgender youth who are able to use their preferred names and pronouns reported a 34 per cent drop in suicidal thoughts and a 65 per cent decrease in suicide attempts.

"It's really important that we get clear court direction about how the rights of gender-diverse students operate in this context, and my hope is that this guidance can then be brought to premiers of other provinces who are seeking to pursue similar policies," Jensen said.

Moe has said the change was made at the request of parents in the province and the government is leaving it up to its 27 school divisions to develop implementation plans. He also said he believes that will address the concerns that some students may not feel safe having their parents informed of their gender identity.

"The notwithstanding clause is present for a reason — so that duly elected governments can represent their constituents when necessary," he said.

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Manitoba Progressive Conservative Leader Heather Stefanson has promised that if re-elected, her government would enhance "parental rights" when it comes to the curriculum and presentations by outside groups at schools.

Ontario has stopped short of introducing any policy changes but Premier Doug Ford told a crowd last week that school boards and teachers should not be "indoctrinating" students, language that has been used by anti-LGBTQ+ groups.

University of New Brunswick law professor Kerri Froc said discrimination against transgender people is well-documented. She believes that courts dealing with these cases will have to decide whether limiting someone's equality rights is justified by the intent behind the policies.

"The court likes to see some safeguards built in, a carefully tailored policy that is cognizant of the various rights that are at issue and make some allowances," she said.

She said there has been a "sea change" in the country, with provincial leaders using the notwithstanding clause more frequently, even though it was designed to be a measure of last resort.

"There seems to be a real — by populist governments — a real kind of hostility to the Charter in terms of setting up courts as the bad guys that are appointed, not elected."

The last time Saskatchewan invoked the notwithstanding clause was in 2017 in response to a court ruling that said it was unconstitutional for the province to keep paying for non-Catholic students to attend Catholic schools.

This report by The Canadian Press was first published Sept. 14, 2023.

 -- With files from Dylan Robertson in London, Ont.