Governing in a Rights Culture

The Government of Saskatchewan introduced its Use of Preferred First Name and Pronouns by Students educational policy in August 2023. In response, UR Pride Centre for Sexuality and Gender Diversity sought a declaration that the policy violated sections 7 and 15(1) of the Charter, and that neither could be saved by section 1. To the extent that the policy required school personnel to out, deadname, and misgender students under the age of 16 absent consent from parents or guardians, UR Pride argued that the policy be declared of no force or effect under section 52 of the Constitution Act, 1982. UR Pride also sought an injunction under section 24(1) of the Charter to delay the implementation and enforcement of the policy. In September 2023, the Saskatchewan Court of King’s Bench granted UR Pride’s request for an interlocutory injunction. In the days that followed, Premier Scott Moe promised to “notwithstand that legislation”. The government proceeded to amend the Education Act and invoked the notwithstanding clause. In February 2024, the Saskatchewan Court of King’s Bench rejected the government’s argument that continuing to hear the case after the invocation of the notwithstanding clause would constitute judicial overreach. The government has since appealed this decision. Using these recent events as a case study, this article asks what lessons might be gleaned about the relationship between and among courts, legislatures, the Charter, and social change. First, it argues that this unfolding case reveals a series of underlying tensions related to the use of section 33(1), particularly its ascendant pre-emptive use — often with limited government justification — against vulnerable minorities. Second, it argues that the era where equity-seeking groups have routinely sought to harness courts and constitutional law as a vehicle for social change may have come to an end. This dynamic significantly erodes the promise of constitutional rights adjudication for minorities under the Charter. The article proceeds in three parts. Part 1 situates trans Charter rights in Canada in their larger socio-legal context. Part 2 examines the government’s introduction of its Use of Preferred First Name and Pronouns by Students policy, the UR Pride constitutional challenge, and the subsequent use of the notwithstanding clause. Part 3 asks what this episode means for the larger adjudication of rights under the Charter.

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