Someone in Saskatchewan’s government needs to step back and ask if a mallet was the right solution.
Published Sep 15, 2023 • Last updated 2 hours ago • 3 minute read
Someone needs to ask the Saskatchewan Party government if using the notwithstanding clause will make life better for transgender kids. Photo by Getty Images
Using the notwithstanding clause to troubleshoot the problem the Saskatchewan Party government will have if and when it loses a court case on gender pronouns in schools is using a mallet to kill a ladybug.
The first valid question is: Why not just leave the ladybug alone?
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But even if convinced the ladybug is gender misidentified and further convinced this is a pressing matter of state, someone in government needs to step back and ask if a mallet was the right solution.
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Both from a legal and moral perspective, Premier Scott Moe needs to seriously consider the ramifications of using the notwithstanding clause on a Canadian Charter of Rights and Freedoms court challenge of a gender identity policy that he claims is a matter of “parental rights.”
Yes, provinces have the right to invoke the notwithstanding clause under Section 33 of the charter that supersedes sections 2 and 7 through 15, providing legal and equality rights that are part of outlined fundamental freedoms.
The wide variety of individual and human rights the Charter protects include: freedom of religion, expression and association; the right to life, liberty and security of the person; and freedom from unreasonable search, seizure and arbitrary detention.
What it doesn’t contain, however, is specific “parental rights,” which is more of an American concept.
This would be the third time Saskatchewan has used the notwithstanding clause — once in 1986 during a labour dispute, and six years ago, which was very much framed as “protecting parental rights” in the wake of Court of Queen’s Bench determining earlier that year that it was unconstitutional to fund non-Catholic students to attend Catholic separate schools.
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In reality, however, that fight was largely about local parents finding ways to preserve rural schools suffering from dwindling enrolment.
It proved to be a politically popular move to use the notwithstanding clause then, but there are legitimate questions about whether it’s a dangerous precedent to override our very constitution over what seem comparatively trivial matters like local school closures and labour disputes.
Of course, Ontario Progressive Conservative Premier Doug Ford invoked it last year to help send janitors and childcare workers back to the job.
But this only underscores the growing problem when you start debasing the very document protecting our rights.
But it takes things to a whole other level to use it against struggling kids wanting to keep difficult conversations hidden from potentially less-than-understanding parents.
The government is literally making a federal case out of kids hiding their gender identity, without presenting so much as one example of a parent who claims they were aggrieved by a school not informing them.
Moe and the Sask. Party may want to dress this up as a heady matter of “parental rights,” but this is about egregious politics that’s been in the works for months.
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It started last May when the government found itself on the wrong side of the Rainbow Tent at the Saskatchewan Children’s Festival that Greater Saskatoon Schools told chaperones to avoid.
That was followed by Planned Parenthood’s presentation in June to a Lumsden Grade 9 class where, for still unexplained reasons, a student got ahold of sexually explicit material.
The Saskatchewan United Party made this the centrepiece of its Lumsden-Morse byelection campaign that resulted in a distant second-place finish for the Sask. Party’s rival upstarts.
This clearly sent a chill through Moe and the Sask. Party, which quickly adopted Sask. United’s fervent opposition to sex education, and adopted the less-than-legally-sound Sask. United position that we need to invoke the notwithstanding clause.
For months, it’s been about rallying support against non-existent enemies: Transgender people wanting to read to kids at a children’s festival; “woke” teachers and advocates; Planned Parenthood; and now central Canadian interests using the courts through the UR Pride Centre for Sexual Diversity — a student centre operated out of the University of Regina offering resources to that community.
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But what the government isn’t doing is considering who that big mallet might be hurting in both the long and short term.
Mandryk is the political columnist for the Regina Leader-Post and the Saskatoon StarPhoenix.
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