Canadian civil liberties group fighting 'abuse' of notwithstanding clause in Sask. pronoun law

The Canadian Civil Liberties Association (CCLA) says it’s intervening in a legal dispute over Saskatchewan’s controversial pronoun laws to prevent the “abuse” of the notwithstanding clause.

The civil rights advocate was one of 11 parties approved to make arguments in a constitutional battle over Saskatchewan’s Parents Bill of Rights following a fiat from the appeal court on Friday.

Saskatchewan’s law requires consent for students under the age of 16 to change their names or pronouns while in school, puts broad restrictions on sexual health education and bars sexual assault centres from presenting in school.

The University of Regina’s UR Pride launched a legal challenge against the rules that began as a Ministry of Education policy in August 2023 before being introduced as a law, with the province invoking the notwithstanding clause to protect it from a potential court order.

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The appeal court is being asked to decide whether the Court of King’s Bench is allowed to determine if the law violates the Charter, even if the court has no power to strike it down.

Saskatchewan and its allies — the New Brunswick and Alberta attorneys general — say the use of the notwithstanding clause means the court has no role here.

In a news release on Tuesday, the CCLA said it intends to argue that the use of the clause does not prevent the court from being able to review if a law violates the constitution.

“In fact, the courts have a duty and role to play as guardians of the constitution, to ensure that the public is made aware that their government has enacted unconstitutional legislation,” the CCLA said in its statement.

“This is an important check and balance in our democracy to provide curtail information that enhances democracy and public discourse.”

The CCLA characterizes Saskatchewan’s use of Section 33 of the constitution — otherwise known as the notwithstanding clause — as a “misuse and abuse” of the constitutional provision.

“The notwithstanding clause was never intended to be used — and should not be used to weaken or harm legal protections for marginalized and vulnerable communities, such as trans and gender diverse young people,” the CCLA said in its statement.

Dan LeBlanc and Leif Jensen of LeBlanc Jensen will represent the CCLA in the appeal, which is scheduled for Sept. 23.

Also arguing against Saskatchewan’s bid to keep a court from determining if the law violates Charter rights are a number of labour groups, who say the legislation compels teachers and school administrators to inflict harm on children.

With files from Keenan Sorokan