Saskatchewan pronoun policy doesn't do enough to mitigate harms, say legal professors
Saskatchewan legislation that requires parental consent when children under 16 change their names or pronouns at school fails to ensure gender-diverse youth aren't harmed, say two legal professors.
The Saskatchewan Party government tabled the bill with the notwithstanding clause last week, overriding sections of the Charter of Rights and Freedoms and Saskatchewan's Human Rights Code.
A judge granted an injunction at the end of September pausing the policy until a challenge could be heard in court later this year. The injunction prompted the government to invoke the clause to make sure the policy stays in place.
The legislation says if it's believed a student would be harmed because of the pronoun consent requirement, the school's principal is to direct the student to a counsellor. The counsellor would then develop a plan with the student to help them make a request to their parent to receive consent.
Robert Leckey, who teaches family law and is the dean at the faculty of law at McGill University, said such measure is inadequate.
He said even if children are provided counselling to develop a plan, their parents can still decide not to provide consent. This would either out children to their parents or stop teachers and school staff from using a child's chosen name or pronoun, resulting in harm.
"A harmful and dangerous policy has not somehow been saved by the exception," Leckey said. "I think it's narrow, and so I don't think the policy adequately takes account of the risks to children here."
Bruce Ryder, a law professor at York University specializing in human rights and constitutional law, said the measure is deficient.
"I think they know very well that the law is going to cause harm to students, and they're going ahead with it despite that knowledge," Ryder said.
"To me, that's part of the story that is most shocking."
When he granted the injunction, Justice Michael Megaw said it was necessary to prevent gender-diverse youth from experiencing "irreparable harm."
Education Minister Jeremy Cockrill told reporters last week the policy has strong support from the majority of Saskatchewan residents and parents.
Cockrill said supports are available if a child believes they may be harmed.
"If there's perceived or potential harm, there's an explicit expectation on school staff to make sure that supports are provided, whether that's in the school context or referring to a community organization," he said.
Leckey said the policy seems to ignore family and child protection law, saying the guiding principle is to do what's in the best interest of the child.
He said parents have broad authority to educate their children, but there are limits.
"Normally we would think that parents' rights stop where the child's safety began," Leckey said.
"This is derogating from that principle, this is using the notwithstanding clause to override children's rights to self determination and freedom. It's very much creating a new right for parents and putting it in a paramount position. It's quite a serious proposal."
Ryder said the government could have achieved a reasonable balance between the rights of parents and children.
He said the legislation could have included exceptions for mature minors, who are children under 16 able to make health decisions for themselves.
It could have also included exemptions for children who would face serious harm, he added.
"Reasonable process, I think, would always seek to involve the parents as a default position, but would measure first the risk of harm. And if the risk of harm is particularly great, there should be an exemption from the parental consent requirements," he said.
The legislation includes a clause that aims to prevent people or organizations from suing the government, members of cabinet and school boards over the legislation, saying claims for losses or damages are to be "extinguished."
Leckey said this isn't the first time governments have put such clause in legislation.
He said people could still sue the government, but that it would be difficult to seek damages once the policy is enacted.
This report by The Canadian Press was first published Oct. 15, 2023.
CTVNews.ca Top Stories
'A beautiful soul': Funeral held for baby boy killed in wrong-way crash on Highway 401
A funeral was held on Wednesday for a three-month-old boy who died after being involved in a wrong-way crash on Highway 401 in Whitby last week.
'Sophisticated' cyberattacks detected on B.C. government networks, premier says
There has been a "sophisticated" cybersecurity breach detected on B.C. government networks, Premier David Eby confirmed Wednesday evening.
Police handcuff man trying to enter Drake's Toronto mansion
Toronto police say a man was taken into custody outside Drake's Bridle Path mansion Wednesday afternoon after he tried to gain access to the residence.
Biden says he will stop sending bombs and artillery shells to Israel if they launch major invasion of Rafah
U.S. President Joe Biden said for the first time Wednesday he would halt shipments of American weapons to Israel, which he acknowledged have been used to kill civilians in Gaza, if Prime Minister Benjamin Netanyahu orders a major invasion of the city of Rafah.
Canucks beat Oilers 5-4 in comeback to take Game 1
The Vancouver Canucks won the first game of their NHL playoffs series with the Edmonton Oilers 5-4 on Wednesday night coming back from a three-goal deficit.
Nijjar murder suspect says he had Canadian study permit in immigration firm's video
One of the Indian nationals accused of murdering British Columbia Sikh activist Hardeep Singh Nijjar says in a social media video that he received a Canadian study permit with the help of an Indian immigration consultancy.
Pfizer agrees to settle more than 10K lawsuits over Zantac cancer risk: Bloomberg News
Pfizer has agreed to settle more than 10,000 lawsuits about cancer risks related to the now discontinued heartburn drug Zantac, Bloomberg News reported on Wednesday, citing people familiar with the deal.
Quebec premier defends new museum on Quebecois nation after Indigenous criticism
Quebec Premier Francois Legault is defending his comments about a new history museum after he was accused by a prominent First Nations group of trying to erase their history.
U.S. presidential candidate RFK Jr. had a brain worm, has recovered, campaign says
Independent U.S. presidential candidate Robert F. Kennedy Jr. had a parasite in his brain more than a decade ago, but has fully recovered, his campaign said, after the New York Times reported about the ailment.