With school pronoun legislation passed, Sask. government rescinds original policy directive

Having passed legislation enshrining its rules on pronouns in schools, the Saskatchewan government has rescinded the original policy directive meant to enact those rules, in a move that could bring an end to a court case around the directive.

In August, the province directed schools to require parental consent for any student under 16 wishing to change their pronouns or gendered name.

Lawyers for UR Pride Centre for Sexuality and Gender Diversity sought an injunction against the policy, arguing it could cause teachers to out or misgender children and that it violates the Charter of Rights and Freedoms. 

After a hearing, Justice Michael Megaw at Regina's Court of King's Bench granted an injunction, pausing the policy's implementation pending a full hearing. Megaw said the policy could cause "irreparable harm."

The provincial government went on to pass its Parents' Bill of Rights — putting the rules in place and invoking the notwithstanding clause to protect them from constitutional challenges — last week. Saskatchewan's Ministry of Education said in an email Wednesday that the passage of that bill, which contains similar provisions as the policy, means the policy was no longer necessary.

On Tuesday, Megaw was in the process of hearing a third-party plea for an intervenor status in the lawsuit over the original policy. Court documents show that, before the bench could proceed on that, the government's counsel notified the court that the policy had been rescinded on Monday.

"Counsel for the Government has risen to indicate that legislative events have perhaps overtaken this litigation as it presently exists," Megaw said.

"That leads to a representation from the Government that there will be an application to be made, in my words not counsel's words, to dismiss the originating application as it is presently constituted."

Egale Canada, a national LGBTQ advocacy organization, is UR Pride's co-legal counsel in the litigation. Bennett Jensen, the director of legal for Egale, said despite the government's attempts to rescind the underlying policy, the legal fight is far from over. 

"We are not done. We still believe that what they have passed into legislation is constitutionally problematic and that it violates the constitutional rights of gender diverse students in the province, and we will do everything we can to make that argument before the courts," he said.

Jensen said there are provisions to make sure the case can advance, even with the government terminating the original policy that is the basis of the court case.

"What we've also said to the court is that we are committed to continuing this litigation and that includes challenging the legislation as passed. So our case will not be limited to the policy."

Milad Alishahi, a partner with the firm MLT Aikins, which is representing the Saskatchewan government in the matter, relayed the government's latest stance to the court on Tuesday. Alishahi declined to comment on the case.

Megaw said in court that the policy being rescinded did alter the nature of the case.

"I accept on the basis of the submissions made that the litigation as it is presently constituted is not the litigation which will proceed or not proceed depending on the outcome of the applications," he said. 

Megaw set Dec. 1 as the next date to hear arguments on any applications brought forth by the government or UR Pride.