Saskatchewan鈥檚 top court will rule on whether a gender identity disclosure law violates children鈥檚 Charter rights鈥� but the ruling won鈥檛 change anything.
That鈥檚 because even if the court declares that the law is cruel and unusual punishment, contrary to the Charter, the law will continue to apply because the provincial government invoked the notwithstanding clause.
A Saskatchewan public interest group, the UR Pride Centre for Sexuality and Gender Diversity, took the province to court over a recently passed law that forces school staff to disclose a child鈥檚 name and pronouns to parents if different from the child鈥檚 registered name and gender identity.
The provincial legislature responded to the lawsuit by arguing that the notwithstanding clause removes the court鈥檚 ability to rule on whether the pronoun law violates the Charter, but the court disagreed. In September, the Saskatchewan Court of Appeal heard from UR Pride Centre and 11 intervening groups, and will soon issue a written decision declaring whether the pronoun law violates the Charter, a constitutional law.
Under the notwithstanding clause, the Saskatchewan government can continue applying a law that violates the Charter for a five-year period, renewable on expiry.
The notwithstanding clause, however, does not allow Saskatchewan to ignore international law.
When Canada (including its provinces and territories) signed onto the UN Convention on the Rights of the Child, it agreed to uphold child rights within domestic legal matters.
The Convention affirms every child鈥檚 right to preserve their identity, including their name and pronouns. In theory, if a government law or policy violates this or any other child right, the government is obligated to provide a remedy, or risk breaching international law.
For decades, Saskatchewan has harmonized this relationship between international and domestic law within its Children鈥檚 Law Act, which affirms children鈥檚 rights as a factor courts must consider in custody order decisions. The Supreme Court has repeatedly confirmed that international law including the United Nations Convention on the Rights of the Child provides the minimum protections for Charter protection.
International child rights law bodies leave it to domestic governments to rectify rights violations, placing Saskatchewan鈥檚 legislature in a position of policing itself when violations occur. Its use of the notwithstanding clause suggests an unwillingness to overturn the pronoun disclosure law on the grounds that it violates international child right laws.
All of the mechanisms in place to challenge, address and remedy a child鈥檚 gender and identity rights are largely unavailable to the very children they are intended to uplift. Children under 18 can鈥檛 vote legislators out of office. While they are under 18, they can鈥檛 sue them for civil damages on their own, should the pronoun law cause them harm. And now, they can鈥檛 even rely on a public interest group to challenge the law because the Saskatchewan government has made it clear they do not intend to roll back its use, even if a court declares it unconstitutional.
Though this current debate centers on children鈥檚 gender identity rights today, the same frustrating lack of remedy could apply to all child rights. Tomorrow, the government could just as easily move to violate children鈥檚 right to healthcare, to education, to be free from forced labour, to safety. All a child can do in those circumstances is hope that an adult or a public interest group like UR Pride Centre will take up the torch on their behalf, and that the government will be willing to meaningfully fulfill its international legal obligations to its children. Adults are duty bearers under the Convention on the Rights of the Child and we have an obligation to uphold and uplift children鈥檚 rights. We cannot stand idly by while the Saskatchewan government fails to acknowledge and respect the rights, dignity and evolving capacities of children.
If not, the Saskatchewan government will continue to attempt to end the discussion with a 鈥渂ecause I said so鈥� approach, invoke the notwithstanding clause, and opt not to afford children meaningful protections of the Charter and international law.
The Canadian Coalition for the Rights of Children (CCRC) is a national umbrella group of organizations and individuals committed to the full implementation of the Convention in Canada and globally.
