Pronoun policy challenge was inevitable, lawyer says
Law would still violate rights, even with discretionary power: UR Pride's counsel
Even if the province had allowed teachers discretion in enforcing a pronoun consent policy in classrooms, a constitutional challenge like the one filed this fall would still have been warranted, says legal counsel for UR Pride Centre for Sexuality and Gender Diversity.
Internal emails obtained in a freedom of information request by The Canadian Press show a draft of the Parental Inclusion and Consent Policy (now enshrined in the Parents' Bill of Rights) once included a provision that would have given teachers discretion to use a students' preferred name or pronouns without parental consent if it put a student at risk to obtain permission.
The policy was amended sometime in the two weeks before it was announced on Aug. 22, 2023, to instead direct teachers to use a child's birth name and pronouns until parental permission is given.
It is now law, after government used the notwithstanding clause to push through Bill 137 in October.
Bennett Jensen, legal director for Egale Canada and co-counsel for UR Pride, said the draft shows someone in the Ministry of Education was “sensitive” to the potential for the policy to harm LGBTQ+ youth, but said the removal of the provision from the final version is “really appalling.”
“In some ways, it is reassuring; but then it's deeply disappointing it was removed,” Jensen said in an interview Thursday.
“What this shows is that the government was rushing, for some unknown reason, and made decisions that were not evidence-based and didn't prioritize the best interests of children.”
Ministry and government officials have said often that the policy was brought forward in the interest of protecting parents' right to involvement in their child's education.
A statement from a ministry spokesperson provided to the Leader-post on Thursday did not say why the provision was changed, but said the “formation of the bill was, in part, due to our government listening to parents.”
“Our government believes that parents and guardians are the most important people in a child's life, that they have the right to be included in their child's life-altering decisions, and that they have the right to know what goes on at their child's school,” the statement says.
Asked if any of Egale's legal arguments in the civil litigation against the policy, now law, would have changed if the provision had been included, Jensen said the simplest answer is likely not.
UR Pride's primary arguments claim the law mandates the misgendering or outing of gender diverse students against their will, violating protections under the Charter of Rights and Freedoms.
Arguments the policy is a “solution in search of a problem” would still be relevant, he suggested, regardless of whether teachers had leeway to determine when and how to apply the rule.
“The acknowledgment that these policies could expose young people to harm would have been a significant improvement over what the government pursued,” he said. “But I think that we would still have had concerns about Section 7, security of the person, and Section 15, equality.”
Jensen said the nature of governing informal interactions in classrooms inherently creates inequity and undermines rights to autonomy, an issue also flagged by Saskatchewan's child and youth advocate.
He does not believe the provision would have mitigated arguments that the law discriminates against LGBTQ+ students.
“There's fundamental dignity and equality concerns,” Jensen said. “Any attempt, any time, by any government to implement policy or legislation that requires the misgendering, deadnaming or outing of gender diverse students is harmful and a violation of those students' charter rights, period.”
As for the injunction request, which was granted in September and spurred the introduction of the bill in October, Jensen said that too would have still been pursued.
UR Pride's constitutional challenge is currently on hold, as the Court of Appeal considers a leave to appeal and stay of proceedings. The appeal was filed by the government in response to a judge's February decision to allow the case to move forward.
Government's counsel argues Court of King's Bench Justice Michael Megaw made errors in his decision to allow UR Pride to add a new Section 12 claim and dismiss “mootness” arguments.