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A person holds a pride flag during a Pride flag-raising ceremony in Saskatoon on Thursday, June 1, 2023.

THE CANADIAN PRESS/Heywood Yu

Court hears arguments over injunction for Saskatchewan's school pronoun policy

By The Canadian Press

Published 2:32 PDT, Tue September 19, 2023

Last Updated: 2:56 PDT, Tue September 19, 2023

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A Saskatchewan judge heard arguments Tuesday over an injunction application that aims to halt a policy requiring students under 16 to receive parental consent if they want to go by different names or pronouns at school.

Lawyers for UR Pride, an organization representing LGBTQ people in Regina, argued for the injunction, describing the policy as discriminatory because it could result in teachers misgendering students unable to get parental consent.

Adam Goldenberg, a lawyer representing the group, told court it could also out students, potentially putting them at risk if they aren't accepted at home.

He said these repercussions violate the Charter of Rights and Freedoms, including equality rights and the right to security of the person.

The policy also does not account for the mature minor doctrine, a common-law rule that gives mature children autonomy, said Goldenberg.

Mitch McAdam, the province's lawyer, told court the attorney general is opposed to the injunction, arguing the policy has been misinterpreted.

McAdam said students who are worried they won't receive parental consent are to be provided with professional counselling at school.

The counsellor is to work with the student until they are ready to seek parental consent, he said.

"It's my submission that those submissions are inaccurate and unfair, and they're unnecessarily inflammatory," McAdam said. "The court needs to look at what the policy actually says and make a ruling based on what the policy says."

Premier Scott Moe has said he stands by the policy and that the province will do everything in its power to protect parental rights.

The premier said he would consider using the notwithstanding clause, a provision that allows governments to override certain Charter rights for up to five years.

Michael Walter, the Education Ministry's assistant deputy minister, said in an affidavit that he received 18 letters between June and August from people expressing concerns about students using chosen pronouns and names in school. The letters referenced a similar policy in New Brunswick, which came before the one in Saskatchewan.

In his affidavit, Walter said the chief of staff in the Education Ministry told him that constituents of some legislature members were concerned.

Goldenberg described this correspondence as "weak" evidence, as the constituents and their political representatives were not identified.

"That's at least triple hearsay," he said. "The chief of staff told (Walter), the MLAs told him, the constituents told the MLAs that parents had concerns about something happening in schools.

"They go from zero to a final version of the policy in nine days in August," Goldenberg said. "This was not a thoughtful active policy creation."

UR Pride's lawyers said an injunction would pause the policy while a challenge makes its way through court.

Saskatchewan child advocate Lisa Broda said in a report last week that the policy violates rights to gender identity and expression.

Justice Michael Megaw, who is hearing the injunction application, granted five organizations intervener status in the case: the Canadian Civil Liberties Association, John Howard Society, Women's Legal Education and Action Fund, the Gender Dysphoria Alliance and Alberta-based Parents for Choice in Education.

– Jeremy Simes, The Canadian Press