Sask. court rules that legal challenge of province’s pronoun policy can move forward

WATCH: As Mick Favel explains, Saskatchewan's highest court has allowed a legal challenge against a pronoun law to proceed.

Saskatchewan’s Court of Appeal has ruled that invoking the notwithstanding clause cannot stop a court from ruling whether a law violates the Charter.

In a Monday decision on an appeal that saw a host of groups join as interveners, the province’s highest court determined a judge can hear the Charter case against Saskatchewan’s controversial pronoun law — even if a King’s Bench judge is barred from striking it down.

Known as Bill 137 or the Parents’ Bill of Rights, the legislation requires students under the age of 16 to have parental permission before they can change their pronouns or names in school.

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The court’s decision will allow the UR Pride Centre for Sexuality and Gender Diversity to pursue whether the amendments to the province’s education act violates two sections of the Charter, mainly the right to life, liberty, and security of the person (Section 7) and equality rights (Section 15).

The province responded to the verdict Monday, defending the bill and saying it is determining next steps.

“The Parents’ Bill of Rights provides parents with the assurance that they will be involved in important decisions involving their children, and that important information involving their children will not be withheld from them,” the response read.

Egale Canada, which launched the legal challenge alongside UR Pride, shared its enthusiasm over the court’s decision Monday.

“The Court of Appeal’s decision upholds the rule of law in Canada and, in particular, reinforces the critical role of the courts in determining the constitutionality of government action,” the organization shared.

The Government of Saskatchewan first introduced a pronoun policy in August of 2023 – which was legally challenged by UR Pride.

The University of Regina-based centre requested and was granted a court injunction which halted the use of the policy.

In response, the Government of Saskatchewan recalled the legislature in October of 2023 to enshrine the policy into law and stop the court challenge.

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Utilizing Section 33 of the Charter, otherwise known as the “notwithstanding clause,” the government passed Bill 137 amid heavy criticism from advocacy groups and the Opposition NDP.

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UR Pride amended its legal challenge to say the law violated Section 12 of the Charter, which protects Canadians from cruel and unusual treatment or punishment.

In February of 2024, a Court of King’s Bench judge ruled that UR Pride’s amended challenge should be heard.

The province appealed that decision, arguing that since the original policy was no longer in place, and the law was protected by the notwithstanding clause, the question of whether the law violates the Charter rights of children was essentially irrelevant.

Since the provincial government used a constitutional maneuver to sidestep the ability of a court to strike the pronoun law down, the government’s lawyers have argued it would be an abuse of process for a court to even hear the case or make a judgment on the potential Charter issues.

During the two days of arguments, the Court of Appeal panel heard from nine interveners that supported a decision to continue the legal challenge against the bill – ranging from the Canadian Civil Liberties Association to the John Howard Society.

The Governments of Alberta and New Brunswick served as interveners on behalf of the provincial government.

Both government’s introduced a pronoun policy in their respective provinces. Alberta passed its law in 2024. It requires students under 16 to have parental consent to change their names or pronouns. Students aged 16 and 17 don’t need consent, but their parents have to be notified.

New Brunswick had a pronoun policy under Blaine Higgs’s Progressive Conservatives in 2023. However, it was revised by Premier Susan Holt’s Liberal government after being elected last November.

Monday’s verdict will allow UR Pride’s challenge to be heard at the Court of King’s Bench at a later date. That court’s judgment won’t be able to strike down the legislation, due to the notwithstanding clause, but would provide a statement on whether the bill violates constitutional rights.

“That issue [of limiting Charter rights] was not before this court,” the ruling read. “Whether to answer that question remains in the discretion of the Court of King’s Bench.”

The Court of Appeal also found that UR Pride can amend its challenge to seek a declaration that the policy violates Section 12 of the Charter, which outlines the right to be free from cruel and unusual treatment.

The province cited other sections of the Charter when it invoked the notwithstanding clause.

The Court of Appeal also found that UR Pride can amend its challenge to seek a declaration that the policy violates Section 12 of the Charter, which outlines the right to be free from cruel and unusual treatment.

The province cited other sections of the Charter when it invoked the notwithstanding clause.

Former Justice Minister Bronwyn Eyre said last year the Saskatchewan Party government wouldn’t hesitate to use the notwithstanding clause again. She also said the province would consider going to the Supreme Court of Canada.

Reaction

The Saskatchewan NDP shared a similar sentiment to Egale in its response Monday, with organizations such as CUPE Saskatchewan and the Sask. Labour Federation following suit.

“Instead of continuing this witch hunt and forcing taxpayers to foot the bill, the Sask. Party should repeal Bill 137 and focus on what really matters to Saskatchewan people: fixing healthcare, stopping crime, and lowering costs for families,” the party said.

“Today sends a clear message: rights matter, children matter, and the Sask. Party government cannot simply legislate away accountability,” CUPE Sask. president Kent Peterson said in a statement.

“Instead of a serious response to tariffs, wildfires, or understaffed hospitals, the Sask. Party keeps fighting students and educators in court. Wasting hundreds of thousands - if not millions - of taxpayer dollars on this fight is bizarre,” SLF president Lori Johb said in a news release.

-With files from The Canadian Press