Sask. lawyer says province's new school pronoun rules lie in murky legal realm

A Saskatoon lawyer says it's unclear if there is any legal standing to repeal Saskatchewan's newly announced education policies.

"This is not a fight that anybody wants, and it just makes zero sense to engage in this when we are all losing sight of how do we keep children safe," Lakefield LLP lawyer Nicholas Stooshinoff said.

On Tuesday, the province announced policy changes requiring students under 16 to seek parental permission to change preferred names or pronouns at school.

“If we are requiring school divisions to get parental consent to go to a half-day field trip to the science center, then I think we need to be treating this issue with the same amount of seriousness," education minister Dustin Duncan said on Tuesday.

Parents must also be informed about any sexual health education and can opt their kids out of the classes.

As parents, advocates and associations look to fight the policies, Stooshinoff says it's difficult to determine any legal steps to force the province's hand since the implementation and the outcome the province is trying to achieve are not yet known.

"I think we have to all just take a step back, take a breather and start having a bit more of a dialogue as to why this is so critical," he said.

"It could very well be in violation of human rights legislation. And if that is the case, I am not sure that the government will have any other choice but to adhere to what is found in a court of law or a ruling by a statutorily created authority."

Lisa Broda, Saskatchewan's advocate for Children and Youth, announced she would review the policy to ensure it adheres to the Canadian Charter of Rights and Freedoms and the Saskatchewan Human Rights Code, which she says all public institutions are required to uphold.

The policy changes comes after the upstart Saskatchewan United Party posted a strong byelection performance in the constituency of Lumsden-Morse, where a controversy erupted earlier this year after a Planned Parenthood sexual health resource was provided to Grade 9 students.

Stooshinoff believes the change is "politically driven" and is meant to appeal to parents with "a more fundamentalist approach to sex." He says the policy in its current form doesn't say enough about how it could affect students.

"It's purposely vague because they don't know quite exactly what they want to do, and how far they can go," he said.

One area Stooshinoff is focusing on is possible discrimination.

With the policy apparently focused on trans or non-binary youth, since gender-conforming youth wouldn't typically seek a name or pronoun change, organizations like the Canadian Civil Liberties Association (CCLA) see it as a violation of children's rights.

"There's a clear discriminatory impact that is particularly going to impact, in a negative way, trans and gender diverse students," CCLA director of equality Harini Sivalangam said.

Sivalangam wouldn't say if the CCLA, a non-profit devoted to civil liberties and constitutional rights, would file any legal action just yet.

"We're definitely concerned about the potential legality of this new policy and with reviewing the policy carefully, and we're willing to work collaboratively with national and local organizations to determine next steps," she said.

With little legal precedent in Canada, Stooshinoff says it would take at least six months, and likely longer, for any legal process to run its course.

"This is something that the courts are equally loathe to get into," he said. "Unless there's a clear law involved, the courts are not going to be dictating governmental policy."

With the changes announced as a policy and not legislation, the legal argument will be more difficult to frame, according to Stooshinoff.

"It's not likely a debate that's going to be easily resolved. Because you are dealing with emotion and you're not dealing with the law at this point in time," he said.