September 23, 2024 – Tomorrow, the Women’s Legal Education and Action Fund (LEAF) will be going to the Court of Appeal for Saskatchewan to make submissions in Saskatchewan (Minister of Education) v. UR Pride Centre for Sexuality and Gender Diversity. This is a case about what courts can and cannot say concerning a law once the notwithstanding clause has been invoked.
In February, a Saskatchewan Court of King’s Bench judge decided that even though the provincial government used the notwithstanding clause to protect its pronoun law from being found unconstitutional, a court can still declare that the law violates Charter rights.
Because the notwithstanding clause allows rights-infringing laws to remain in effect, a simple declaration of violation of rights wouldn’t be enough to strike down the law. Even so, the judge found that courts can still make that declaration. Today and tomorrow, the Court of Appeal for Saskatchewan will hear an appeal from that judge’s decision.
In this case, the notwithstanding clause is shielding Saskatchewan’s pronoun law, which requires parental consent for school personnel to be permitted to refer to a trans, non-binary, or gender-diverse student under the age of 16 by their proper name and pronouns.
The UR Pride Centre for Sexuality and Gender Diversity is challenging the law, claiming that it violates trans and non-binary students’ rights to security of the person and equality, as well as their right not to be subjected to cruel and unusual treatment. LEAF is also intervening in that challenge.
In its submission to the Court of Appeal, LEAF is arguing that a court declaration in this case would serve to publicly recognize the lived experiences of youth whose rights are being infringed.
“Courts play a vital role in recognizing experiences of discrimination,” said Pam Hrick, Executive Director & General Counsel of LEAF. “In a public context where transgender youth are not believed to be credible narrators of their own identities and experiences of discrimination, it is even more necessary that courts publicly recognize their lived experiences.”
Judicial recognition of discrimination is also important as a way to inform the general public that a law is discriminatory. The intended counterweight to the immense power of the notwithstanding clause is the ballot box – the idea being that if the public disapproves of the government’s use of the clause, it can vote that government out at the next election. In order to decide how to vote, the public must have access to a rigorous analysis of the law’s impact on rights.
LEAF will also warn the courts tomorrow that the problem of the notwithstanding clause is not going away.
“In an ideal world, the rights that we’ve won would not be taken away,” said Hrick. “Unfortunately, we know that this is not the case. With governments’ increased use of the notwithstanding clause, women and gender-diverse people face a serious risk of our hard-fought rights being legislated away. Courts need to be there to ensure that the public is informed of these types of government action.”
The hearing is at the Court of Appeal for Saskatchewan, September 23 and 24.
LEAF is grateful to Morgan Camley and Kay Scorer of Dentons Canada LLP, counsel to LEAF in this case. LEAF is also grateful to Barton Soroka of Gerrand Rath Johnson LLP, agent for LEAF in this case.
LEAF’s interventions are guided, informed, and supported by a case committee with expertise in the relevant issues. We are grateful to this intervention’s case committee members (in alphabetical order): Florence Ashley, Jamie Cameron, Jennifer Koshan, Robert Leckey, Samuel Singer, and Xue Xu.
For media inquiries, please contact:
Pam Hrick
Executive Director & General Counsel, LEAF
416-595-7170 ext. 2002
[email protected]
About the Women’s Legal Education and Action Fund (LEAF)
The Women’s Legal Education and Action Fund (LEAF) is a national not-for-profit that works to advance the equality rights of women, girls, trans, and non-binary people in Canada through litigation, law reform, and public legal education. Since 1985, LEAF has intervened in more than 130 cases that have helped shape the Canadian Charter of Rights and Freedoms. To find out more, visit www.leaf.ca.
