In defiance of judge, Sask. premier to force school pronoun rules into law

In defiance of a King's Bench ruling, Saskatchewan's premier plans to force a controversial school pronoun policy into law.

A Regina judge issued an injunction on Thursday, effectively pressing pause on Saskatchewan's new policy until the court rules on a legal challenge mounted by the University of Regina Pride Centre for Sexuality and Gender Diversity (UR Pride).

Soon after the ruling, Saskatchewan Premier Scott Moe announced his government will enshrine the policy into law and protect it through constitutional maneuvers.

In August, the province's education minister announced the new rules requiring students under 16-years-old to seek parental consent before changing their pronouns or preferred first names in a school setting. 

The move was widely criticized by LGBTQ2S+ advocates who believed the policy could put gender-diverse youth at risk.

In late August, UR Pride announced it would file for the injunction as well as challenge the constitutionality of the policy. Egale Canada and law firm McCarthy Tétrault LLP are assisting the organization in its legal fight.

In his decision to grant the injunction, Justice Michael Megaw referenced the testimony of expert witnesses who pointed to the policy's potential harms.

"On the whole of the evidence, I am satisfied that those individuals affected by this policy, youth under the age of 16 who are unable to have their name, pronouns, gender diversity, or gender identity, observed in the school will suffer irreparable harm," Megaw wrote.

He dismissed many of the Saskatchewan government's arguments against the injunction, including a claim that without the policy a six-year-old child starting elementary school could ask to be called by a different name or pronoun, or be identified by a different gender.

"I find this argument lacks persuasiveness and to be without foundation or basis on the materials that are before the court on this application. There is no indication in the materials that any students as young as six years old are looking to engage in this discussion," Megaw said.

"Furthermore, there is no indication that teachers or any other educational professionals either have been asked, or will be asked, to engage in this discussion."

MOE TO RECALL LEGISLATURE

In a statement sent to media early Thursday afternoon, Moe announced the Legislative Assembly would be recalled early "to pass legislation to protect parents’ rights."

"Our government is extremely dismayed by the judicial overreach of the court," Moe said.

Moe said his majority Saskatchewan Party government would turn to the notwithstanding clause of the Canadian constitution, which would stave off potential Charter challenges after the policy becomes law.

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Moe said the policy "has the strong support of a majority of Saskatchewan people, in particular, Saskatchewan parents."

In his decision, Megaw notes that between June and August, Saskatchewan's Ministry of Education received 18 letters expressing support for a similar policy announced in New Brunswick earlier this year. Seven of the authors identified themselves as parents of school-aged children.

Megaw said the government did not provide evidence it "discussed this new policy with any potential interested parties such as teachers, parents, or students."

"There is further no indication any expert assistance was enlisted to assist in determining the effect of the policy. Finally, there is no indication the ministry sought any legal assistance to determine the constitutionality of the policy," Megaw wrote.

In its initial court application, UR Pride, cited a message posted on X, formerly Twitter, as evidence of Moe admitting a "lack of expert consultation."

In the Aug. 27 message, Moe said he's been asked which experts the government consulted before the policy shift.

"I believe the leading experts in children's upbringing are their parents," Moe said in his tweet.

An Angus Reid poll conducted in July found Saskatchewan residents were split on the issue of parental consent for pronoun changes at school.

Opposition NDP education critic Matt Love said his party welcomes Megaw's decision to suspend the policy.

"The government should scrap this policy, which will force schools to out vulnerable kids," Love said in a statement.

"The government should not come forward with legislation in the fall sitting to put this policy into law, and they certainly shouldn’t do so relying on the notwithstanding clause to push this policy forward," Love said.

The Canadian Civil Liberties Association (CCLA) blasted Moe's plan to invoke the notwithstanding clause — a constitutional mechanism that prevents Charter challenges for five years.

"The notwithstanding clause is the nuclear option," CCLA equality director Harini Sivalingam said in a news release.

"The notwithstanding clause is not a weapon to be used to strip anyone of their rights, let alone vulnerable and marginalized students," Sivalingam said.

The CCLA was granted intervenor status in the legal battle earlier this month.

The new school pronoun policy was announced following a strong byelection showing by the upstart Saskatchewan United Party in the constituency of Lumsden-Morse, a stronghold for Moe's ruling Saskatchewan Party.

Saskatchewan United campaigned on the controversy sparked by a Planned Parenthood sexual health resource that was provided to Grade 9 students in the town of Lumsden.

In addition to the pronoun policy, then-education minister Dustin Duncan announced new guidelines allowing parents to opt students out of sexual health programming.

The Saskatchewan Advocate for Children and Youth launched a review immediately after the new school pronoun policy was announced.

In her report issued earlier this month, Lisa Broda said she found the policy could violate human rights.

"Many young people under the age of 16 will have the capacity to make this type of decision. Giving them the chance to demonstrate capacity is an important step in accommodating their right to their gender identity,” Broda said in her report.

Prior to the start of the academic year, Saskatchewan's school boards jointly asked the province to pause the "sudden" policy changes until they were assured the "directives are not putting young people in harm's way and are not contrary to their human rights."