Sask. government argues validity of injunction request to stop pronoun policy

“UR Pride is not a mere busybody and has a real stake in these issues,” said legal counsel Adam Goldenberg, in rebuttal to government’s submissions made Tuesday.

Published Sep 19, 2023 • Last updated 14 hours ago • 6 minute read

Lawyers Adam Goldenberg, of Toronto-based firm McCarthy Tétrault LLP, left, and Bennett Jensen, legal director at LGBTQ+ lobby group Egale Canada, right, walk out of the Court of Kings Bench after meeting with a judge regarding legal action against Saskatchewan’s preferred pronoun policy on Monday, September 18, 2023 in Regina. Photo by KAYLE NEIS /Regina Leader-Post

Legal counsel for the Saskatchewan government argued Tuesday in court that a Regina LGBTQ+ advocacy group does not have legal standing to request an immediate stop order on a provincewide pronoun consent policy in schools.

UR Pride Centre for Gender and Sexual Diversity submitted an originating application less than a month after the reveal of the policy by the Ministry of Education, which requires parental consent for students under age 16 to change preferred names and pronouns used in school, challenging its constitutionality.

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Counsel convened Tuesday in front of Regina’s Court of King’s Bench Justice Michael Megaw, to argue on a linked request for the court to issue an interim injunction to block the policy from coming into effect while awaiting decision in the coming originating application proceedings.

UR Pride is seeking the court order as a matter of urgency, on the basis of public interest by protecting “safety and inclusivity” in school settings.

The non-profit says the policy violates Charter rights to security of the person under Section 7, and nondiscrimination based on identity under Section 15.

“We’ve asked government to pause this policy,” said lead counsel for UR Pride Adam Goldenberg, referencing an ultimatum letter sent to the minister of education in August.

“They have refused … and that is why we’re here.”

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Mitch McAdam, representing the provincial government, said the injunction request is “premature” and wielding of an “all-or-nothing” instrument.

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“Setting aside a policy that’s been duly made pursuant to a valid law, prior to a full hearing on its constitutionality, constitutes irreparable harm to the public good and public interest,” he said.

McAdam said the appropriate timeline would be to wait until school divisions develop and implement administrative procedures based on the overall policy, before responding to it.

He also noted there are “multiple” other avenues in which the organization could bring such a challenge to court.

Goldenberg disagreed, instead calling it a “timely” ask in service of mitigating negative impacts of a “blatantly discriminatory” and “identity invalidating” policy.

Outlining the core of UR Pride’s argument, Goldenberg said failure to stop the policy while awaiting a future decision will cause “irreparable, psychological harm” to LGBTQ+ students.

“We are talking about some of the most vulnerable children in the province, and so these are precisely the circumstances in which public interest standing is appropriate,” he said.

He noted expert evidence submitted that shows youth whose families do not accept them rely on trusted adults, like those in schools, as a “lifeline” for safety.

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“An injunction restores that lifeline,” he said.

Government’s position is that UR Pride, which McAdam called a University of Regina entity, should not be granted public interest standing, as it does not service LGTBQ+ youth in the age range under the policy and therefore cannot speak to the interests of the affected membership.

“UR Pride is not a mere busybody and has a real stake in these issues,” Goldenberg rebutted, explaining UR Pride is not operated by the university and works with clients of all ages, including with school-based gay and straight student alliances.

McAdam called this link “not enough” to pass the legal test to bring forth litigation.

“UR Pride has simply not demonstrated that … evidentiary hurdle,” he said.

Government has said the policy is intended as a gender-affirming policy, brought forward due to public interest, a stance expressed repeatedly by the premier and minister over the last month.

UR Pride raises issues with what is described as the “misgendering requirement” and “outing requirement” of the policy as written, which Goldenberg says is in opposition of that concept and targets LGBTQ+ students.

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McAdam alleged UR Pride, in its application, has misconstrued the contents of the policy, calling such claims “inaccurate, unfair and unnecessarily inflammatory and court should disregard them.”

“This policy attempts to avoid the very harm the applicants allege,” he said.

Answering probing by Megaw about how to differentiate name changes from nicknames in the context of classrooms, McAdam did allow that the policy is specific to requests “related to gender expression.”

He then argued the court “must accept” that government created and enacted this policy in service of “the common good and purpose.”

Goldenberg questioned that assertion.

Referencing an affidavit from assistant deputy minister Michael Walter, Goldenberg told the court Walter said the Minister of Education received 18 letters in June about gender and pronoun consent.

Eleven of those letter writers did not identify themselves as parents of school age children, and “most” spoke to New Brunswick’s recently announced Policy 713, said Walter.

He also said that the minister’s chief of staff told him Duncan heard concerns about children using different pronouns at school without parents’ knowledge from MLAs, who heard similar reports from constituents.

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Goldenberg called this “triple hearsay” that rebukes claims of widespread public interest or benefit.

He added Walters’ testimony also made clear the policy went “from zero to a final version in nine days in August,” a detail that “undermines” government’s arguments and proves it impossible for meaningful consultation to have been done.

“The fact this policy was put together quickly does not do away with the presumption of public interest in any way,” countered McAdam.

Goldenberg described preferred names and pronouns as “inextricable” from the definition of identity, pointing to the Saskatchewan Human Rights Code, in which LGBTQ+ identity rights were enshrined in 2016.

He also pointed to a recent report from Saskatchewan’s advocate for children and youth Lisa Broda, who advised the pronoun consent policy “likely violates” said code.

Goldenberg said the argument is not against parental involvement in a child’s gender transition, but of consent rules over-riding a “minor’s constitutional right to not be treated arbitrarily.”

“They are drawing a line at 16 that relates to the autonomy, bodily integrity, privacy and so forth of young people, that is arbitrary,” he said.

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McAdam said that the policy’s ceiling of 16 years old is actually a “compromise” that is “granting rights to transgendered students” above that age, as the provincial Change of Name Act restricts name minors under the age of 18 from changing their own name.

Citing Walter again, McAdam said 10 of 27 Saskatchewan school divisions had gender identity related policies in place in the 2022-23 school year, six of which specifically addressed pronouns.

He called this a “mish-mash,” and that a provincial policy has added supports for students.

“If you grant an injunction in this case, you are rolling back that protection,” he told Megaw.

McAdam further opined that the issue in this case “is not transgender rights but the issue of age” for deciding one’s own identity.

“Where is the appropriate place to draw that line,” he clarified.

McAdam advised that the Attorney General does intend to seek costs pending the conclusion of this case, which Goldenberg, speaking with reporters following the day’s adjournment, called “unusual” in a public standing case.

All five intervener applications heard Monday were approved by Megaw at the beginning of Tuesday’s proceedings, who at the end of the day reserved his decision on the injunction application to an unsepcified later date.

Hearings on the originating application have been set for October and November.

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