Alberta seeks intervener status in Sask. court case over controversial pronoun policy

The government of Alberta says it will throw its support behind the Saskatchewan government in the dispute over its student pronoun policy.

The Saskatchewan government's Parents' Bill of Rights requires parental consent for children under 16 who want to change their names or pronouns at school.

In a statement on Tuesday, which included Mickey Amery, Alberta's minister of justice and attorney general, and Bronwyn Eyre, Saskatchewan's minister of justice and attorney general, Alberta said it was seeking intervener status in the Parents' Bill of Rights case before the Saskatchewan Court of Appeal.

"Saskatchewan and Alberta agree that the ultimate authority figures in children's lives are their parents, and our provinces are both committed to supporting families and kids so they can work through their child's unique needs together," said Amery and Eyre in the statement.

"Notifying parents and requiring their consent before a child's name or pronouns can be changed in schools and before classroom discussions about gender identity and other sensitive subjects occur ensures the parent-child relationship is respected and paramount."

Saskatchewan's Parents' Bill of Rights became law in October. It's protected by Section 33 of the Constitution, also known as the notwithstanding clause — a tool that allows provinces to override some human rights. 

But earlier this year, a Regina Court of King's Bench judge decided a constitutional challenge from UR Pride Centre for Sexuality and Gender Diversity could proceed. Those who oppose the law say it violates several rights of gender diverse people.

The Saskatchewan government says it's appealing the decision to allow the challenge — essentially trying to block it.

"This is really an issue of parliamentary sovereignty," Eyre said.

"There is a very important, you know, constitutional issue at play here about whether the notwithstanding clause is the final word when a legislature invokes it. And that's one I think that certainly Alberta is interested now in pursuing constitutionally at the Court of Appeal."

Eyre said she's written to other provinces for support.

In Tuesday's statement, Alberta said it intends to show that Saskatchewan's use of Section 33 of the Charter of Rights and Freedoms should have prevented the Court of King's Bench from reviewing the constitutionality of the Parents' Bill of Rights.

Alberta said this case has the potential to not only impact parental rights across Canada, but also the application of the parliamentary supremacy clause, "which has been an integral piece of the Canadian Charter of Rights and Freedoms and the Constitution of Canada since 1982."

Egale Canada, a national 2SLGBTQ+ organization representing UR Pride, said in a statement it will respond to Alberta's motion to intervene once it's received.

"However, we remind both governments that the policy measures legislated by the government of Saskatchewan were found to cause irreparable harm to gender diverse youth by the Saskatchewan Court of King's Bench," said Egale director of legal and co-counsel for UR Pride Bennett Jensen.

"The lives and dignity of young people are at stake."

Alberta policies still to come

Alberta has promised to introduce policies this fall not only regulating student pronoun changes, but also gender-affirming health care and trans women's involvement in sports.

For example, Alberta parents will need to give permission before a student aged 15 and under can use a name or pronoun at school other than what they were given at birth.

Students who are 16 or 17 won't require permission, but schools will need to inform their parents.

A spokesperson for Amery's office told CBC "it would be inappropriate to speculate on how the case in Saskatchewan might affect any future policy in Alberta."

Constitutional expert Eric Adams, a law professor at the University of Alberta, suggests the involvement is a litmus test.

"I think Alberta wants to have the power to use the notwithstanding clause in a way that would be unquestioned by Alberta courts," said Adams.

"This is new territory, and that's why Alberta's saying we want a front-row seat."

The notwithstanding clause would still protect the law should the courts find it unconstitutional, Adams explained, but the clause must be reviewed every five years. 

"That sunset clause, which is a really nice piece of the architecture of Section 33, says the public should have a role here," he said.

"The public will have an opportunity to weigh in during the next election cycle. But some of us — and I put myself on this list — think that the public can only really properly play that role when they have the full information. And the full information comes from the litigation record."

Law affects students, counsellors

Meanwhile, Iris Akbar, a counsellor with the 2SLGBTQ+ support organization OutSaskatoon, says things only get harder for students she works with.

"I have young clients who tell me that they feel so heartbroken," she said.

She said some students aren't sure who to trust with their true identities. It's gotten to the point where Akbar is adjusting how she helps some students come out.

"The approach of coming out is no longer a possibility for many youths — to put themselves out there because they may feel that they cannot trust anyone," she said.

"So now some of the advice that I give my youth is instead of coming out, you may want to choose people that you want to come into your life.… You are in the ownership and power to choose who wants you."

Akbar said it's usually advice she reserves for people who are struggling with cultures or countries that have strict anti-LGBTQ views or laws.

"With this pronoun policy, that is an approach that we have more conversations about."