This case is about discrimination against trans, non-binary, and gender-diverse students.

LEAF is intervening before the Saskatchewan Court of King’s Bench.

Facts

In August 2023, weeks before the start of the school year and without notice or consultation, the Saskatchewan government adopted a policy called “Use of Preferred First Name and Pronouns by Students.” The Policy imposed specific requirements for students under the age of 16 who “wish to change their pronouns and/or preferred first name to align with their gender identity”.  The Policy only permitted school personnel to refer to a trans, non-binary, or gender-diverse student under the age of 16 by their proper name and pronouns if their parent consented. It also required school personnel to seek parental consent when a student asked that their “preferred name, gender identity, and/or gender expression be used.” 

The UR Pride Centre for Sexuality and Gender Diversity commenced a Charter challenge to the Policy before the Saskatchewan Court of King’s Bench. It argued that the Policy limited the sections 7 (security of the person) and 15 (equality) Charter rights of trans, non-binary, and gender-diverse students under the age of 16. 

After a judge paused the operation of the policy while the case was ongoing because the youth affected by the policy would suffer “irreparable harm” in the meantime, the Saskatchewan government enshrined the policy in law. The government also invoked the notwithstanding clause of the Charter regarding sections 7 and 15, so that even if the legislation does infringe students’ rights to security of the person and equality, it cannot be struck down in court as unconstitutional. 

In response, UR Pride successfully amended its challenge, now alleging that the law limits the section 12 rights (the right not to be subjected to cruel and unusual treatment) of gender-diverse students under the age of 16.  

UR Pride also asked the Court of King’s Bench to declare that the law violates the students’ section 7 and 15 rights, even though that declaration would not serve the purpose of striking down the law. The judge decided that courts do have that power. The province has appealed this decision that courts have the power to issue a declaration, as well as the judge’s decision that UR Pride can amend its arguments to argue a violation of section 12. 

That appeal is now at the Court of Appeal for Saskatchewan, and this case is on hold until those issues are resolved.  

Arguments

LEAF initially planned to argue that, for a substantive equality approach to s. 15, the Court must consider the specific impact of the Policy on trans and non-binary students. The Court must also consider the best interests of the child, and the prospect of family violence or other forms of abuse. There is a need for appropriate limits on parental control of children to oppose harms to trans and non-binary children, and to promote their best interests.

Outcome

This case is on hold until the appeal at the Court of Appeal for Saskatchewan is resolved.

LEAF is grateful to Morgan Camley, Raphael Eghan, Barbara Grossman, and Chloe Snider of Dentons Canada LLP, counsel to LEAF in this case.