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 transgender flag is mounted to a pole as people hold pride flags while attending rally against the Saskatchewan government’s proposed legislation on pronoun policy in front of Saskatchewan legislature in Regina, on Tuesday, Oct. 10, 2023. 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 CANADIAN PRESS/Heywood Yu

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. 

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