UR Pride lawyers amend legal action on Sask. pronoun policy

The amended legal application now names Bill 137 as the vehicle in which the Saskatchewan government is violating Charter rights of LGBTQ+ youth.

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UR Pride Centre for Diversity and Sexuality has made changes to its legal action against Saskatchewan to specifically name the new pronoun consent legislation passed last month.

Legal counsel for the Regina-based non-profit LBGTQ+ organization filed an amended originating application with the Court of King’s Bench in Saskatchewan, altering the constitutionality challenge begun three months ago.

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The new document, obtained by the Leader-Post, specifically names Bill 137 as the now-damaging entity, rather than the original education policy introduced in August.

It also adds violations of Section 12 of the Charter of Rights and Freedoms to the allegations the province’s law tramples the rights of and endangers gender diverse youth.

The new filing follows the most recent court hearing on Oct. 24, where government lawyers argued Bill 137’s assent means the policy referenced in this case had been “rescinded,” and that the legal action should be paused pending clarity.

Milad Alishahi, partner at private firm MLT Aikins representing the province, indicated he had been instructed to file an application that would be “dispositive of this matter, altogether.”

No court documents were filed, to the Leader-Post’s knowledge.

UR Pride’s amended application strikes mention of the Use of Preferred First Name and Pronouns by Students policy, changing language to indicate the policy existed in the past tense.

It then makes additions to instead name section 197.4 of the Education Act, created by Bill 137, as violating protected Charter rights of LGBTQ+ youth.

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The application says the new section “limits the rights of gender diverse students under the age of 16” per Sections 7, 12 and 15 of the Charter, in a way that is not “reasonable and demonstrably justifiable.”

“The government did not take any steps to remedy the defects in the Policy or to consult with experts,” reads the amended application.

Bill 137 uses Section 33 of the Charter, or the notwithstanding clause, to overrule Sections 2, 7 and 15 of the Charter of Rights and Freedoms.

Both Sections 7 and 15 were included in UR Pride’s original arguments outlined earlier this fall in hearings for an injunction order, which presiding Justice Michael Megaw granted.

Now, legal counsel is arguing that the “outing requirement” and “misgendering requirement” outlined violates Section 12, which guarantees a person’s right “not to be subjected to cruel and unusual treatment or punishment,” in addition to 7 and 15.

Both elements remain pillars of the organization’s argument. UR Pride’s application affirms that Bill 137 does not “alter or minimize” but “similarly preserve the brutality” of these requirements.

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“Just as the Policy did, section 197.4 denies gender diverse students what should be a basic entitlement in a free and democratic society: a safe and welcoming educational environment in which to be themselves,” reads the application.

“It punishes students under the age of 16 for being gender diverse.”

UR Pride is now seeking a declaration that the policy did violate Sections 7 and 15 while it existed, and that the current legislation violates Sections 7, 12 and 15 of the Charter.

“A declaration remains an available, appropriate, and necessary remedy in these circumstances,” reads the application.

The notwithstanding clause allows the legislation to operate despite any rulings related to Section 7 and 15, but UR Pride’s lawyers posit the court “unquestionably has jurisdiction to determine whether Section 12 has been infringed.”

The new application is petitioning the court to name the bill “to be of no force and effect” if proven to violate Section 12.

If successfully argued, Egale Canada, a LGBTQ+ rights organization providing legal support to UR Pride, said the new law would “not be allowed to operate.”

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Egale’s legal director Bennett Jensen, also co-counsel for UR Pride, said the courts have already ruled once that the original policy would have inflicted “irreparable harm on young people.”

“We are not giving up on our priority to protect all trans and gender diverse students across Saskatchewan,” said Jensen. “We will continue to use every tool at our disposal to fight (this).”

Asked Monday about the case, Minister of Justice and Attorney General Bronwyn Eyre called the claim under Section 12 “an extremely weak argument,” in her office’s view.

“That section is often used in penal and quasi-penal cases, so really completely different contexts,” she said. “And now parental rights are constituting cruel and unusual punishment?”

She said the province “will see what happens now and how these arguments play out,” reiterating that government remains firm in that it will “do everything we need to do to see this legislation through.”

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