LGBTQ lobby continues legal challenge of parental rights in Saskatchewan

THE CANADIAN PRESS/ Patrick Doyle

Saskatchewan’s LGBTQ lobby continues to challenge parental rights legislation in court after filing an injunction to stop the bill last August. 

The University of Regina Pride Centre for Sexuality and Gender Diversity (UR Pride) commenced a constitutional challenge to Saskatchewan’s parental consent policy that mandates parental consent as a prerequisite to any "social transitions."

Bill 137, the Parents’ Bill of Rights Act, mandates that children under 16 years of age cannot change their name, use different pronouns, or affirm their 'gender identity.' It also bans third-party sex education organizations from classrooms, such as Planned Parenthood, and makes it mandatory for schools to display the Saskatchewan flag.

UR Pride claimed in its court application that this policy would violate children’s right to life, liberty and security of the person (Charter section 7) and children’s right to equality (Charter section 15).

On September 19, 2023, lawyers with the Justice Centre for Constitutional Freedoms assisted Parents for Choice in Education and Gender Dysphoria Alliance in obtaining intervener status in this court action.

On September 28, 2023, the Saskatchewan Court of King’s Bench granted UR Pride an injunction, suspending the Policy until a full court hearing on its constitutionality could take place in 2024.

Saskatchewan Premier Scott Moe explains why he's using the notwithstanding clause to protect parental rights in the province as his government fights against secret gender transitions in schools.https://t.co/FxkT7IjPZy pic.twitter.com/G65sSSK3dJ

— Rebel News Canada (@RebelNews_CA) October 2, 2023

After 40 hours of debate, Bill 137, the Education (Parents’ Bill of Rights) Amendment Act, became law with unanimous support from Saskatchewan Party MLAs and one vote from the lone Saskatchewan United Party (SUP) representative, Nadine Wilson. The entire NDP caucus opposed the bill.

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. 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," said Justice Centre President John Carpay.

"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," he added.

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."

Saskatchewan invoked the notwithstanding clause to table legislation that protects parental rights in all school environments.https://t.co/VKu9Y3kEJg

— Rebel News Canada (@RebelNews_CA) October 12, 2023

On January 10 and 11, 2024 heard competing arguments from UR Pride and the Government of Saskatchewan as to how the case will move forward.

UR Pride now claims that the Parents' Bill of Rights amounts to the "cruel and unusual treatment or punishment" of children in Saskatchewan schools. It also states the bill violates sections 7 and 15 of the Charter, even though the government invoked 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. 

They argue the Court should strike any section 7, 12, or 15 challenges to the Parents’ Bill of Rights from UR Pride’s application for various reasons, including the fact that the Notwithstanding Clause shields the Bill from section 7 and 15 challenges.

"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," said Justice Centre lawyer Andre Memauri.