Saskatchewan’s ‘because I said so’ approach

Saskatchewan’s top court will rule on whether a gender identity disclosure law violates children’s Charter rights, but the ruling isn’t going to change anything.

That’s because even if the court declares that the law is cruel and usual punishment, contrary to the Charter, the law will continue to apply because the provincial government invoked the notwithstanding clause.  

A Saskatchewan public interest group, the UR Pride Centre for Sexuality and Gender Diversity, took the province to court after it passed the "Parents' Bill Of Rights” in 2023, which forces school staff to disclose a child’s name and pronouns to parents if different from the child’s registered name and gender identity.

The provincial legislature responded to the lawsuit by arguing that the notwithstanding clause removes the court’s ability to rule on whether the pronoun law violates the Charter, but the court disagreed. Last September, the Saskatchewan Court of Appeal heard from UR Pride Centre and 11 intervening groups, and will soon issue a written decision declaring whether the pronoun law violates the Charter.

Under the notwithstanding clause, the Saskatchewan government can continue applying a law that violates the Charter for five years, renewable upon expiry.

The clause, however, does not allow Saskatchewan to ignore international law. When Canada (including its provinces and territories) signed on to the UN Convention on the Rights of the Child, it agreed to uphold child rights within domestic legal matters.

The Convention affirms every child’s right to preserve their identity, including their name and pronouns. In theory, if a government law or policy violates this or any other child right, the government must provide a remedy or risk breaching international law.

For decades, Saskatchewan has harmonized this relationship between international and domestic law within its Children’s Law Act, which affirms children’s rights as a factor courts must consider in custody order decisions. The Supreme Court of Canada has repeatedly confirmed that international law, including the United Nations Convention on the Rights of the Child, provides the minimum protections for Charter protection.

International child rights law bodies leave it to domestic governments to rectify rights violations, placing Saskatchewan’s legislature in a position of policing itself when violations occur. Its use of the notwithstanding clause suggests an unwillingness to overturn the pronoun disclosure law because it violates international child rights laws.

All of the mechanisms in place to challenge, address and remedy a child’s gender and identity rights are largely unavailable to the very children they are intended to uplift. Children under 18 can’t vote legislators out of office. While they are under 18, they can’t sue them for civil damages on their own, should the pronoun law cause them harm. And now, they can’t even rely on a public interest group to challenge the law because the Saskatchewan government has made it clear they do not intend to roll back its use, even if a court declares it unconstitutional.

Though this current debate centres on children’s gender identity rights today, the same frustrating lack of remedy could apply to all child rights. Tomorrow, the government could just as easily move to violate children’s right to healthcare, to education, to be free from forced labour, or to safety. All a child can do in those circumstances is hope that an adult or a public interest group like UR Pride Centre will take up the torch to fight on their behalf and that the government will be willing to meaningfully fulfill its international legal obligations to its children. Adults are duty bearers under the Convention on the Rights of the Child, and we are obligated to uphold and uplift children’s rights. We cannot stand idly by while the Saskatchewan government fails to acknowledge and respect the rights, dignity and evolving capacities of children.

If not, the Saskatchewan government will continue to attempt to end the discussion with a “because I said so” approach, invoke the notwithstanding clause, and opt not to afford children meaningful protections of the Charter and international law.

Sarah Niman represents the Canadian Coalition for the Rights of Children (CCRC), a national umbrella group of organizations and individuals committed to implementing the Convention fully in Canada and globally.