Legal action filed against Sask. government over new school pronoun rules

A community organization representing LGBTQ people in Regina has filed legal action against the Saskatchewan government over a pronoun policy affecting children at school.

The UR Pride Centre for Sexuality and Gender Diversity filed an originating application Thursday in the Saskatchewan Court of King’s Bench requesting a judge strike down the changes.

“This policy is, on its face, unconstitutional,” said Bennett Jensen, the director of legal for Egale Canada, a national LGBTQ advocacy organization. Egale is co-legal counsel in the application.

“There’s also the more human response, which is that it puts gender diverse students in a position of real risk. We know that they will experience harm if this policy is allowed to go into effect.”

The province announced earlier this month it is requiring parental consent when children under 16 want to use different names or pronouns at school.

In its application, UR Pride said the rules are not justifiable under the Canadian Charter of Rights and Freedoms, and deny gender-diverse students basic entitlement in a free and democratic society, which includes “a safe and welcoming educational environment in which to be themselves.”

The organization said the policy outs children who aren’t ready to express their identity to their parents or others, putting them in a potentially harmful situation if they’re not accepted.

First court appearance

Lawyers from both sides are set to be in court for a case conference on Tuesday. That is also the first day of school for most Saskatchewan students.

“We’re challenging the constitutionality of the policy. That can take several months to do,” Jensen told CBC News on Tuesday. “So what we’re asking the court to do is order an injunction, so that while the court has the chance to adjudicate the legality of the policy, the policy won’t be in operation.”

Jensen said a date for the injunction ruling will be set Tuesday.

Misgendering

UR Pride said the new policy will also result in misgendering, as teachers are required to use students’ birth names, not their chosen names, if they don’t receive parental consent.

The organization said outing and misgendering violate Section 7 of the Charter, which gives “life, liberty, and security of the person,” and Section 15, which provides equality rights to every individual, without discrimination.

“The policy presents an impossible choice: be outed at home or be misgendered at school, even in one-on-one counselling sessions with school personnel,” the application stated. “Either outcome entails devastating and irreparable harm to a vulnerable young person.”

The Saskatchewan government and all of the province’s 27 school divisions are named as respondents in the application. It states the respondents have a right to state their response in court on Sept. 14.

In an emailed statement Thursday, the Saskatchewan Party government said it remains committed to the policy.

“The government maintains its position that parents and guardians have a key role in protecting and supporting their children as they grow and develop, and will do everything in its power to protect parental rights,” a spokesperson said.

Jensen, of Egale, is concerned about governments using gender diverse youth as political pawns, which is playing out in New Brunswick, as well as in places in the United States.

LISTEN | UR Pride Centre threatens legal action following new education policy: 

Bennett Jensen, Director of Legal at Egale Canada, is on the case with the UR Pride Centre – which is threatening legal action against the Saskatchewan government over it’s new pronoun policy in schools. He joins guest host Sam Maciag to tell us more.

“Nobody is arguing that parents shouldn’t be involved in their children’s lives. We know, especially in the queer and trans community, how important it can be to have supportive families in in the picture,” Jensen said.

“We’re just really talking about making sure that young people have a sphere of privacy and independence to figure out who they are, and do that at their own pace.”

UR Pride said it’s requesting it be granted public interest standing, as the organization believes the changes are substantial.

‘A dramatic change’

It filed the application with support from Egale Canada, a national LGBTQ advocacy organization, and with assistance from McCarthy Tetrault LLP, a law firm with expertise in the Charter.

“The policy represents a dramatic and regressive change from existing practices in Saskatchewan school districts,” the application said.

“Teachers and school personnel were able to use — and did use in practice — their professional judgment to adopt the best course of action in the circumstances.

“Teachers and other school personnel, thus could, and did, play an invaluable role in helping students feel safe.”

It said it appears the government did not properly consult before enacting the rules.

The new policy also creates a situation where LGBTQ youth are singled out, the application said, as the preferred names and pronouns of non-transgender students are “consistently and automatically respected and observed within the school environment.”

“The policy, therefore, creates a clear distinction based on gender identity and expression.”

UR Pride has requested it be relieved of any adverse costs if its application is unsuccessful.