Sask. appeal court says anti-trans group cannot join constitutional dispute over pronoun law

Saskatchewan’s Court of Appeal has denied a political group that opposes so-called “gender ideology” intervener status in a legal dispute over the province’s controversial pronoun law.

In a fiat released on Friday, three members of the province’s highest court addressed 12 applications to intervene on the case, including from the attorneys general of Alberta and New Brunswick, and ten other organizations.

The case concerns Saskatchewan’s Parents Bill of Rights, a law requiring parental consent for students under the age of 16 to change their names or pronouns while at school.

The bill also implements sweeping restrictions of sexual health education, including barring third-party health organizations and sexual assault centres from presenting in schools.

The University of Regina’s UR Pride launched a legal challenge against the rules, which 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.

The province is arguing that the use of the notwithstanding clause should prevent a judge from even hearing the case.

In its fiat on Friday, the appeal court granted 11 of the applicants the right to intervene — the attorneys general and nine other groups, including several civil liberties organizations, Amnesty International, three labour groups, the Trial Lawyers Association of British Columbia, John Howard Society and Women’s Legal Education and Action Fund.

The labour groups say they're concerned the law essentially requires teachers and school administrators to "out" trans kids to their parents or risk sanctions.

The appeal court reiterated that the focus of the case is on the interpretation of Section 33 of the Charter, or the notwithstanding clause, “which permits Parliament and provincial legislatures to declare legislation operative notwithstanding certain provisions of the Charter.”

“New Brunswick and Alberta therefore have a direct interest in the subject matter and outcome of this appeal. They have explained their respective interest in these proceedings in their intervention application materials. New Brunswick and Alberta have also outlined the perspectives that each intends to bring to the issues in this appeal.”

The other organizations allowed to intervene have “a demonstrated history of appellate-level interventions in Charter litigation,” the court said in the fiat, signed by the chief justice and two other judges.

“These nine organizations have also outlined in their respective application materials the perspective that they will bring in connection with the issues in this appeal. Several of the organizations have helpfully filed draft factums in support of their intervention applications which offer even greater clarity of position.”

One group was denied — Our Duty Canada (ODC), which purports to offer “resources to Canadian parents of children of any age experiencing ‘transgender’ ideation.”

“Its application to intervene consisted only of a brief of law and was initially unsupported by any evidence that would explain the nature of that organization and its interest in these proceedings,” the fiat said.

Our Duty Canada filed a last-minute affidavit with some initial background information, but the appeal court says it relates to the merits of the pronoun law itself, and not the constitutional issues raised by Saskatchewan in its appeal.

“For all these reasons, ODC’s intervention would serve no proper purpose. At best, ODC would offer no perspective on the constitutional issues that are alive in this appeal that is not already before the court. At worst, ODC’s intervention would serve to direct the court’s time and attention to matters that will not affect the outcome of the appeal, thus causing prejudice of the parties and the judicial process more generally.”

Interveners have until mid-August to file their statements of fact. Saskatchewan and UR Pride have until Sept. 6 to file their own factums.

The appeal is scheduled for Sept. 23.