Keeping parents informed about their own children denounced as “cruel and unusual treatment”

REGINA, SK: The Justice Centre announces that the University of Regina Pride Centre for Sexuality and Gender Diversity (UR Pride) continues to challenge the right of Saskatchewan parents and guardians to be informed about and consent to the gender identity transitions of their children under the age of 16.

In August 2023, UR Pride commenced a constitutional challenge to Saskatchewan’s parental consent policy (“the Policy”) that required teachers and principals to obtain consent from parents (or guardians) before their children could use opposite-gender names and pronouns in school, or otherwise embark on any “social transitions” toward trying to become a member of the opposite sex.

UR Pride claimed in its court application that this parental consent 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 provided by the Justice Centre 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.

On October 20, 2023, after 40 hours of debate in the Legislative Assembly of Saskatchewan, the Education (Parents’ Bill of Rights) Amendment Act passed into law. This Bill replaced the Policy while still requiring, among other things, parental or guardian consent before students under 16 years of age could seek a change to their gender-preferred name or gender identity at school.

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 Chartersection 15 (equality) do not apply to the Bill. This means that nobody can take the Parents’ Bill of Rights to court with a claim that it violates one or more of Charter sections 2, 7 or 15. 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. 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,” stated Justice Centre President John Carpay.

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.”  On January 10 and 11, 2024, the Saskatchewan Court of King’s Bench will hear competing arguments from UR Pride and the Government of Saskatchewan as to how the case will move forward, given the replacement of the Policy with the Parents’ Bill of Rights and the Legislature’s invocation of the Notwithstanding Clause.

UR Pride now claims that the Parents’ Bill of Rights amounts to the “cruel and unusual treatment or punishment” of children in Saskatchewan schools. UR Pride also continues to claim that the Policy and Bill violate sections 7 and 15 of the Charter, even though the Policy is no longer in force and the Bill has 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 (irrelevant). Further, Saskatchewan argues that 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.

Lawyer Andre Memauri stated, “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 now that the Government of Saskatchewan has adopted legislative rather than policy measures and has invoked a significant constitutional tool to protect its legislative power.”

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