5th December 2023

The Saskatchewan government passed Bill 137 Friday, which makes parental consent required before a child under 16 can use a different gender-related name or pronoun at school.

The marathon debate over the government’s new legislation began Monday night. The final vote took place less than 40 minutes after debate time expired at 11:00 a.m. CST Friday, and passed easily, despite the absence of several government members. The bill became law when Lt.-Gov. Russ Mirasty signed it minutes after the vote.

Premier Scott Moe, speaking to reporters Friday afternoon, said the bill was about “providing parents the right — not the opportunity — to support their children in the formative years of their life.”

Moe noted the government has expanded supports such as rapid access counselling and will evaluate where they can add more.

“This is not in any way targeting anyone … this is about building those supports,” Moe said.

Education Minister Jeremy Cockrill said the bill’s passage means that until parents provide permission, “We would expect school staff would continue to refer to children [by] their given name.

“We want children to have those conversations with their parents. That’s the intention.”

A woman in a black shirt and blue jacket stands in front of a microphone.
Saskatchewan NDP Leader Carla Beck speaks with media inside the Saskatchewan legislature on Friday. (Rob Kruk/Radio-Canada)

NDP Opposition Leader Carla Beck said there have been many proud “firsts” in the Saskatchewan Legislature, such as the Saskatchewan Bill of Rights and universal medicare. Beck said Friday’s legislation, and the invocation of the notwithstanding clause, are backward steps.

“We heard from so many people in this province who called for a pause,” Beck said.

During the debate, virtually the entire 40-hour duration saw NDP MLAs share their concerns about the policy and read testimonials of those against the new law and against the use of the notwithstanding clause.

That continued during the final minutes of debate Friday.

NDP MLA Aleana Young said the government is taking its cues from the “far right side of the fringe” and is forging ahead even though they know it’s wrong.

“It is a humiliation for this province,” Young said.

“This is a premier who recalled the legislature two weeks early, spending untold public dollars for his show trial … to solve a problem that, by his own admission, doesn’t exist.”

Fellow NDP MLA Nicole Sarauer urged government members to think before voting.

‘We have seen letters upon letters upon letters from teachers, youth, allies, members of the public asking this government, ‘What are you doing and why are you doing this?’ ” Sarauer said.

“This vote today, this will be your legacy … that applies to every government MLA who wears the Sask. Party banner. I hope that gives you pause.”

Opposition members argued throughout the debate that requiring parental consent before a child under 16 can use a different gender-related name or pronoun at school will out children and that it targets a vulnerable minority of transgender and gender-diverse youth.

The use of the notwithstanding clause to override sections of the Canadian Charter of Rights and Freedoms and the Saskatchewan Human Rights Code has also come under fire by the Opposition and legal experts.

Initial policy challenged

In late August, the government announced its new school policy and a plan to pause presentations in sexual education classes from third-party organizations.

The policy as it relates to name and pronoun use in schools was then challenged in court by the UR Pride Centre for Sexuality and Gender Diversity.

After a hearing, Justice Michael Megaw granted an injunction pausing the policy’s implementation pending a full hearing. Megaw said the policy could cause “irreparable harm.”

Later that day, Moe announced his government would recall the legislature early, invoke the notwithstanding clause and pass a law to protect the policy.

On Oct. 10, the emergency session began and Bill 137, which amends the Education Act, was introduced shortly after.

WATCH | Pronoun policy takes away safe space, says First Nations trans teen:

Pronoun policy takes away safe space, says First Nations trans teen

Featured VideoGrade 12 student Armin Eashappie said he first came out to his teacher because he felt safe with them at his school. He said his family took four years to accept his gender identity and added that the government’s pronoun policy would harm students who do not have supportive families.

Ministers, Opposition debate bill

On Thursday afternoon, Cockrill and Justice Minister Bronwyn Eyre took questions from the Opposition over a period of five hours.

NDP education critic Matt Love asked about what consultations took place before the policy was created in late August.

“During a handful of days in August, who did the ministry talk to?”

“We have consulted with experts in children’s lives that is their parents. We’ve done that all across the province. We’ve done it in every constituency. That’s the process for consultation,” Cockrill said.

In his ruling, Justice Megaw wrote that “there is no indication … that the [Education] Ministry discussed this new policy with any potential interested parties such as teachers, parents or students.”

“There is further no indication any expert assistance was enlisted to assist in determining the effect of the policy. Finally, there is no indication the ministry sought any legal assistance to determine the constitutionality of the policy with respect to any potential considerations regarding the Charter,” Megaw wrote.

Both Moe and Cockrill have said the government developed the policy after hearing from parents and there was a desire for parental involvement to increase.

“We believe that the vast majority of Saskatchewan people want to be more involved in their child’s education and believe that the parental bill of rights accomplishes that,” Cockrill said.

Cockrill said in the assembly this week the government had heard from “tens of thousands” of people and doubled down on that number on Thursday.

“Absolutely, we have heard from tens of thousands of individuals in this province whether that be emails, calls, petitions, conversations at grocery stores or hockey games.”

Cockrill said he has had people contact him who support the bill but are “too afraid to say something.”

On Thursday evening, the NDP introduced a pair of amendments to the bill.

Its “do no harm” amendment would make it so parental consent would not be required in special cases where a mental health professional determines there is no safe way to inform a parent. The Saskatchewan Party members in the house voted against it.

The second amendment aimed to create a parental engagement strategy. That was also defeated in a vote.

Use of notwithstanding clause criticized

In recent days, the use of the notwithstanding clause to prevent legal action on the bill has come under the spotlight from academics and lawyers.

Howard Leeson, who was Saskatchewan’s deputy minister of intergovernmental affairs in the Allan Blakeney government, was central to the 1982 negotiations that repatriated the Canadian Constitution and created the notwithstanding clause.

Leeson said he and other architects of the clause intended it for provincial governments to use in exceptional circumstances — and only after all court matters had been completed.

Including the clause in the amended Education Act overrides any future court ruling for five years, including a hearing scheduled for next February.

“It would have been better for the government to wait until after the merits of the case itself had been argued,” Leeson said.

Opposition NDP Education critic Matt Love
NDP education critic Matt Love proposed two amendments to the government’s Bill 137, but both were defeated. (Heywood Yu/The Canadian Press)

Heather Kuttai, the Saskatchewan Human Rights commissioner, submitted her resignation on Monday in the form of a letter to the premier.

“I can no longer continue. I strongly disagree with the proposed legislation that requires teachers to seek parental permission to change a child’s name and/or pronouns when they are at school. This is an attack on the rights of trans, non-binary, and gender-diverse children,” Kuttai wrote.

Kuttai said she came to the decision after discussions with her teenage son — who is transgender. She said she was disappointed in the government she represented for nine years.

On Tuesday, Moe said Kuttai’s resignation was “perplexing” because the policy she had been disputing had been in place or in practice for many years.

Fourteen University of Saskatchewan law professors and instructors added their voices Thursday to the issue of using the notwithstanding clause.

LISTEN | Law professors tell Sask. government to stop Parents’ Bill of Rights: 

The Afternoon Edition – Sask15:41Law professors tell Sask. government to stop Parents’ Bill of Rights

Featured VideoSaskatchewan Justice Minister Bronwyn Eyre responds to questions about the government’s controversial policy and its use of the notwithstanding clause. University of Saskatchewan law professor Jamesy Patrick reacts to Minister Eyre and explains why the province should reconsider the legislation.

The writers said the government is “knowingly overriding the constitutional rights of its citizens” and “acting in haste.” They urged the government to allow the normal legal process to take its course.

In response, Eyre told reporters she “would question why Saskatchewan would be accused of changing rules or altering rules when other provinces have used the notwithstanding clause on many occasions.”

“It is a legislative tool. If anyone knows that, academic lawyers should know that,” the justice minister said.

When asked by reporters whether other provinces had used the clause to override children’s rights, Eyre did not provide an example.

An official later cited the Saskatchewan government’s inclusion of the clause in 2017 to protect school choice in a bill that was passed but was not proclaimed into law. The government was ultimately victorious in court and the clause was not invoked.

Eyre defended the use of the clause and said the government is “willing to be judged on that policy.”

LISTEN | This week’s political panel discusses Bill 137: 

The Morning Edition – Sask12:14Political Panel – Oct. 20, 2023

Featured VideoA controversial new law will soon be in effect in Saskatchewan. The government is using the notwithstanding clause to make sure its pronoun policy can not be defeated by a court challenge. CBC Saskatchewan provincial affairs reporter Adam Hunter and Leader Post columnist Murray Mandryk join host Stefani Langenegger on this week’s political panel.