UR Pride challenges Saskatchewan’s parental consent and inclusion policies
On August 22, 2023, Saskatchewan Education Minister Dustin Duncan announced a new parental inclusion and consent policy for Saskatchewan schools. The policy requires that schools receive parental/guardian consent before children under age 16 can change their name or pronouns at school.
Mr. Duncan stated, “Our government has heard the concerns raised by Saskatchewan parents about needing to be notified and included in their children’s education in these important areas… Parent/guardian involvement is critical in every student’s education. Schools will continue to ensure safe learning environments where all students feel included, protected and respected.”
On August 31, 2023, the University of Regina Pride Centre for Sexuality and Gender Diversity (UR Pride) launched a constitutional challenge against the Government of Saskatchewan’s parental consent policy. In their court action, UR Pride argued that the policy violated the right to security and equality of students.
Parents for Choice in Education and Gender Dysphoria Alliance present evidence to Saskatchewan court
On September 19, 2023, our lawyers assisted Parents for Choice in Education and Gender Dysphoria Alliance in obtaining intervener status as parties in this court action. As intervenors, they have the right to present their evidence to the court. (“Intervenor status” refers to the legal right of a non-party to participate in a legal proceeding by, for example, providing evidence to the court.)
Parents for Choice in Education (PCE) is a not-for-profit advocacy organization dedicated to informing, equipping, and mobilizing parents toward a choice-driven education system that recognizes the right of children to be protected by their own parents. In its 11-year history, PCE has provided extensive resources to thousands of parents and families to help them advocate for their children in the school system. PCE supports the capacity of parents and other stakeholders to be responsive to the needs of students. In the past, Parents for Choice in Education has also supported policies that affirm a school’s ability to ensure that all activities, resources, and curricula respect the missions of all schools. This includes public, private, religious and charter institutions. For example, PCE opposed Alberta laws and policies that had made it illegal for teachers and principals in Alberta to inform parents about what was happening with their children at school.
PCE Executive Director John Hilton O’Brian remarked, “We are aware that harm to children–particularly those with existing mental and emotional challenges–has resulted from school staff addressing issues of gender and sexuality without proper parental involvement.” He added that his organization believes that “the greatest allies and protectors of children are their own parents.”
Gender Dysphoria Alliance (GDA) was formed in 2021 by two Canadian trans men motivated to correct the narrative about gender dysphoria. They were especially concerned about errant information in the healthcare and education systems that negatively impacts women, children, and the LGBTQ community. Led by Executive Director Aaron Kimberly, Canadian mental health clinician with extensive experience providing care to transgender and gender-questioning patients, GDA produces evidence-based educational resources about gender dysphoria, seeks to support those experiencing gender dysphoria, and advocates for appropriate laws and medical standards regarding gender dysphoria. GDA is not formally affiliated with any political party, religious organization, or professional association.
Aaron Kimberly stated, “As an organization led by transsexual adults, Gender Dysphoria Alliance believes that departures from sound evidence about gender dysphoria have led to missteps in policy and healthcare in ways that are harmful to persons with gender dysphoria and society generally. The social transition of children without clinical or parental oversight is one such misstep.”
“Social transition is a clinical intervention that isn’t appropriate for every child with gender dysphoria due to the multifaceted, multicausal, and often transitory nature of Childhood Onset Gender Dysphoria,” Mr. Kimberly continued. “Premature or inappropriate social transition has the potential to concretize gender dysphoria in ways that lead to the medicalization of individuals who would have resolved their cross-sex identification developmentally, without medical interventions. Parents have an irreplaceable role in understanding possible underlying causes of gender dysphoria and/or transgender identity in their children. Their involvement, and the oversight of competent clinicians, is crucial to protecting the child’s best interests.
“Studies have shown that good child-parent relationships are the leading indicator of a child’s emotional and psychological well-being. Conflicts between parents and their kids about matters such as identity and sexuality are opportunities to work with the family unit, to improve understanding and connection,” concluded Mr. Kimberly.
Andre Memauri, counsel in this matter for both GDA and PCE, stated, “The joint submissions of Gender Dysphoria Alliance and Parents for Choice in Education is based on the foundational principle that children’s constitutional rights are protected by the informed involvement of their parents. The Court is facing the argument that requiring schools to have parental consent before changing the name and/or gender pronouns of their children violates the constitutional rights of those children. Such an outcome would be harmful to the parent-child and parent-school relationships, and ultimately would undermine the security of the children in this vulnerable group. Only in rare exceptions can excluding parents be justified. The legal exclusion of parents from such issues as changing name and gender pronouns ignores the fact that the majority of parents act in the best interests of their children.”
Saskatchewan invokes Notwithstanding Clause, shielding parental consent policy from most constitutional challenges
On September 28, 2023, the Saskatchewan Court of King’s Bench granted UR Pride an injunction, suspending the implementation of the parental inclusion and consent policy until a full court hearing on its constitutionality could take place in 2024.
On October 20, 2023, however, the Education (Parents’ Bill of Rights) Amendment Act passed into law after 40 hours of debate in the Legislative Assembly of Saskatchewan. This Bill replaced the Policy while still requiring parental or guardian consent for students under 16 years of age to be able to seek a change to their gender-preferred name or gender identity at school.
This Parents’ Bill of Rights uses the Notwithstanding Clause (section 33 of the Charter), stating that Charter section 2 (freedom of expression, association, conscience, religion, and peaceful assembly), Charter section 7 (life, liberty, and security of the person), and Charter section 15 (equality) do not apply to the Bill. This means that nobody can claim in court that the Parents’ Bill of Rights violates one or more of Charter sections 2, 7 or 15. Section 33 grants federal Parliament and provincial legislatures power to override, through the passage of law, certain sections of the Charter for renewable five-year terms.
“By invoking the Notwithstanding Clause, the Government of Saskatchewan effectively protected the right of parents to be fully informed about what goes on with their children at school. Children have a right to the care, guidance and protection of their parents. Parents cannot protect their children unless parents are informed about what is happening to their children,” stated Justice Centre President John Carpay.
However, the language of the Parent’s Bill of Rights does not shield it from a constitutional challenge based on section 12 of the Charter, which prohibits “any cruel and unusual treatment or punishment.” Indeed, UR Pride now claims that the Parents’ Bill of Rights amounts to the “cruel and unusual treatment or punishment” of children in Saskatchewan schools. UR Pride also continues to claim that the Policy and Bill violate sections 7 and 15 of the Charter, even though the Policy is no longer in force and the Bill has invoked the Notwithstanding Clause.
On January 10 and 11, 2024, the Saskatchewan Court of King’s Bench heard competing arguments from UR Pride and the Government of Saskatchewan to determine how the case will move forward, given the replacement of the Policy with the Parents’ Bill of Rights and the Legislature’s invocation of the Notwithstanding Clause.
The Government of Saskatchewan has submitted its own court applications, arguing that because the Policy has been replaced by the Education (Parents’ Bill of Rights) Amendment Act, UR Pride’s constitutional challenge to the Policy is now moot (irrelevant). Further, the Government of Saskatchewan asserts that the Court should strike any section 7, 12, or 15 challenges to the Parents’ Bill of Rights from UR Pride’s application, citing various reasons including that the Notwithstanding Clause shields the Bill from section 7 and 15 challenges.
Lawyer Andre Memauri stated, “The applications before the Court by the parties will determine various issues in terms of how, and if, the majority of the issues put forward by UR Pride will proceed through the judicial process now that the Government of Saskatchewan has adopted legislative rather than policy measures and has invoked a significant constitutional tool to protect its legislative power.”
