Challenge of Sask. school pronoun law can proceed despite notwithstanding clause, judge rules
CBC
A judge has ruled a court challenge can proceed over the Saskatchewan government's law requiring parental consent for children under 16 who want to change their names or pronouns at school.
Justice Michael Megaw says the applicant, UR Pride, a 2SLGBTQ+ group in Regina, should still be allowed to make its case surrounding the Charter of Rights and Freedoms even if the Charter's notwithstanding clause has been invoked.
"UR Pride has recognized the claim here is in somewhat uncharted territory," Megaw wrote.
"However, that UR Pride has a steep hill to climb in this regard does not mean it should not be given the opportunity to engage in the climb in an effort to illustrate that the incline can be conquered."
Megaw's decision allows UR Pride and the government to provide all their evidence and arguments before court. The judge can then decide his next steps.
"We're relieved that the court has agreed that we need to be able to argue on behalf of gender-diverse students in the province and that the government's use of the notwithstanding clause doesn't limit our fight," said Bennett Jensen, the legal director at Egale Canada and co-counsel for UR Pride.
Lawyers for UR Pride urged Megaw last month to allow the challenge, arguing the law passed by Premier Scott Moe's government limits the rights of gender-diverse youth who are entitled to a safe educational environment.
Lawyers for the government urged the judge to dismiss the challenge on the grounds the law doesn't breach the Charter and is in the best interest of gender-diverse children.
The province has said the Charter wasn't breached because the government used the notwithstanding clause to enact the law.
The notwithstanding clause is a rarely used measure that lets governments override certain Charter rights for five years.
Megaw said he's declining at this stage to consider the government's bid to have case deemed moot.
"A difficult claim, a novel claim, or even a steep climb claim, is not analogous to a doomed claim," Megaw wrote.
"There is no basis here to deny the applicant the opportunity to establish their claim."
The issue is set to head to court in late April or early May, Egale's Jensen said.
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