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Saskatchewan Premier Scott Moe has announced his government’s intent to pass legislation invoking the notwithstanding clause aimed at his province’s high-school pronoun policy.

The notwithstanding clause is a constitutional tool that allows federal, provincial, and territorial legislatures to temporarily suspend certain Charter rights for a period of up to five years. If used, Saskatchewan joins a growing list of provinces that are resorting to the notwithstanding clause as a tool of first resort before courts have a chance to determine whether the action is constitutional or not.

Saskatchewan’s targeting of transgender youth reveals a fundamental flaw in the notwithstanding clause’s design: minorities and/or people who can’t vote are uniquely vulnerable to being the victims of the notwithstanding clause.

Saskatchewan’s 2023 notwithstanding clause use

In August, Saskatchewan’s Education Minister Dustin Duncan announced the province’s new “Use of Preferred First Name and Pronouns by Students” policy. This policy requires that students requesting “that their preferred name, gender identity, and/or gender expression be used” obtain “parental/guardian consent.”

Organizations representing 2SLGBTQIA+ communities responded immediately with concerns that this is a dangerous policy that requires youth to “out” themselves to their families or hide their gender identity. A 2018 study found that allowing transgender youth to use their preferred pronouns is linked to a 34 per cent drop in suicidal thoughts and a 65 per cent decrease in suicide attempts. In addition, 2SLGBTQIA+ peoples are twice as likely to be homeless in their lifetime because transgender youth who share their gender identity with unsupportive parents can be kicked out of their homes or leave because of hostility or violence.

The UR Pride Centre for Sexuality and Gender Diversity has filed a constitutional challenge arguing that the policy infringes transgender youth Charter rights. The premier announced his intent to use the notwithstanding clause in response to the Saskatchewan Court of King’s Bench granting an injunction to pause the implementation of the pronoun policy until its constitutionality can be fully reviewed in court.

Democratic design and unique vulnerability

When the notwithstanding clause was added to the Charter, it was regarded as a political compromise to gain requisite provincial consent to patriate Canada’s Constitution.

The notwithstanding clause was not designed to be a carte blanche. The drafters set limits on its use and proposed elections as the main accountability tool. First, the notwithstanding clause does not apply to democratic rights. Second, any notwithstanding clause use automatically expires after five years requiring its reconsideration in line with election cycles. Third, any notwithstanding clause use must be passed by express legislation as a “red flag” to the electorate. These limits were designed to increase the political risk of re-election when governments invoke the notwithstanding clause.

Saskatchewan’s use of the notwithstanding clause in the context of transgender youth demonstrates the shortcomings of these democratic safeguards. Minority groups, particularly those unable to vote, are at higher risk of being targeted by its use.

Here, the target of the policy are youth under the age of 16, which is too young to vote. The use of the notwithstanding clause to suspend the rights of non-voting youth significantly reduces political risks associated with it. Those whose rights are being targeted are unable to exercise ballot-box accountability for the provincial government’s use of the notwithstanding clause against them.

Trans people must be protected across Canada

Robust public debate needed on use of notwithstanding clause

The notwithstanding clause and the separation of powers

Their vulnerability is further exacerbated by their small demographic status. Transgender youth represent a fraction of the province’s population. Although data is limited, within a province of more than one million people there are approximately 2,500 people over the age of 15 who identify as transgender or non-binary. Unfortunately, targeting a small minority population may have few political costs, and some political gains.

Education specialists, people concerned with human rights, or people supporting rights for transgender persons may be outraged, but the Saskatchewan premier has likely estimated that many others will be indifferent, or support “parents’ rights to know.” The democratic safeguards surrounding the use of the notwithstanding clause are ineffective when it is used against a vulnerable minority.

Saskatchewan’s use will not be the first time a minority population is targeted through the notwithstanding clause – Bill 21 in Quebec targets people in select public-service jobs who wear religious symbols. Saskatchewan’s approach is aimed at a minority youth population unable to vote. This application of the notwithstanding clause reveals more than ever a fundamental flaw in its design. By making elections the main accountability tool, the drafters abandoned the disenfranchised. People without the right to vote, whether new immigrants or youth, are left to the will of their fellow citizens, who are often apathetic or self-interested.

Using the notwithstanding clause against people who cannot vote undermines the very idea of rights protection for all.

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Caitlin Salvino completed a master’s and DPhil in law focusing on the notwithstanding clause at the University of Oxford, where she studied as a Rhodes Scholar. She is now a JD candidate at the University of Toronto and junior fellow at Massey College.
Nathalie Des Rosiers is a co-editor of the Oxford Handbook of the Canadian Constitution, a constitutional law professor, former head of the Canadian Civil Liberties Association, and a former member of the Ontario provincial parliament.

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