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Canada province uses constitutional override to advance pronoun legislation

The Canadian province of Saskatchewan has invoked a rare constitutional mechanism to shield controversial gender pronoun legislation from legal challenges – a decision critics say violates the rights of minors.

On Monday, Saskatchewan’s legislative assembly started debate on Bill 137, which outlines the rights parents have as the “primary decision-maker” in their child’s education. Among the most controversial is the provision requiring parental consent before school staff use a desired gender identity or gender-related preferred name if the student is under the age of 16. The bill also says that if obtaining parental permission could cause harm to the child, the principal will connect the student with support to develop a plan to come out to their parents.

An obscure clause in Canada’s charter sparks furious debates over rightsRead more

Saskatchewan follows New Brunswick as the second province in the country to amend its education laws, reflecting a burgeoning “parents rights” movement in Canada that has migrated from the neighbouring United States.

In recent months, conservative provincial governments across the country have increasingly spoken about granting parents the “right” to know about their child’s gender expression in schools. The Ontario premier, Doug Ford, last month said parents and guardians should be informed if a student has changed their pronoun or name at school.

But Scott Moe, the premier of Saskatchewan and leader of the Saskatchewan party, is the first provincial leader to use the “notwithstanding clause” when passing legislation surrounding pronoun use. The clause allows governments to temporarily strip away fundamental rights enshrined in the country’s Charter of Rights and Freedoms.

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Saskatchewan’s minister of education, Jeremy Cockrill, said overwriting the charter rights of minors was “justifiable” by his government to “ensure that parents have rights in terms of being involved in [their] child’s education”.

Civil rights groups say the move sets a “dangerous precedent” when it comes to preserving key freedoms, especially when the legislation targets vulnerable transgender youth.

“The government of Saskatchewan is threatening to shred a piece of the charter this Tuesday, and in so doing violate the rights, the freedom, the privacy, the equality and the safety of trans young people,” Noa Mendelsohn Aviv, an executive director for the Canadian Civil Liberties Association (CCLA), told reporters on Friday.

Bill 137 uses the notwithstanding clause to override sections 2, 7 and 15 of the charter, which relate to freedom of expression, liberty, security of person and equal protection under the law. The bill also uses the clause to bypass sections of the Saskatchewan Human Rights Code that protect the right to freedom of conscience, the right to free expression and the right to education.

“In reaching for the notwithstanding clause, governments are really just saying: ‘We want to pass a law that wouldn’t be upheld by the courts as a reasonable and proportionate limit on rights,’” Robert Leckey, dean at McGill University’s law school, previously told the Guardian.

A government can only invoke the clause for five years. Before renewing it, they must first face voters.

Moe told reporters that the clause was envisioned to address clashes between charter-protected rights and other rights.

“The notwithstanding clause was provided to make sure the elected government of the day would be able to make the decision as to which of those rights would be in effect for the people they ultimately represent,” he said.

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In a news release, the province acknowledged it decided to use the notwithstanding clause after a court issued an injunction earlier in the year.

Critics of the bill say the government is ignoring a dire shortage of mental health support in schools and is instead caving to pressure from a minority of far-right legislators.

“There is no reason that this minister has to believe that there are ample supports in schools. Anybody who’s been in a school doesn’t believe what he has to say,” Matt Love, the New Democratic party’s opposition education critic, told reporters.

According to reporting from the Regina Leader-Post, the province is facing an acute shortage of mental health support in schools. The Saskatchewan Teachers’ Federation says there is only one school counsellor for every 3,000 Saskatchewan students.

Lawmakers are expected to spend at least 40 hours debating the legislation. With a legislative majority on his side, Moe is likely to see the bill passed by the end of the week.