The Saskatchewan government is expected to pass Bill 137, the “Parents’ Bill of Rights,” on Friday.
The marathon debate over the government’s new legislation began Monday night. The second reading debate took 33 hours, concluding around 1:30 p.m.. CST on Thursday.
Third reading and debate is slated for Friday. A vote will follow and the bill will become law once it is signed by the lieutenant-governor.
During the debate so far, virtually the entire 33-hour duration saw Opposition NDP MLAs share their concerns about the policy and read testimonials of those against the new law and against the use of the notwithstanding clause.
Most of the criticism was centred on the requirement for parental consent before a child under 16 can use a different gender-related name or pronoun at school.
Opposition members argue this will out children and that it targets a vulnerable minority of transgender and gender-diverse youth.
The use of the notwithstanding clause to override sections of the Canadian Charter of Rights and Freedoms and the Saskatchewan Human Rights Code has come under fire by the Opposition and legal experts.
Initial policy challenged
In late August, the government announced its new school policy and a plan to pause presentations in sexual education classes from third-party organizations.
The policy as it relates to name and pronoun use in schools was then challenged in court by the UR Pride Centre for Sexuality and Gender Diversity.
After a hearing, Justice Michael Megaw granted an injunction pausing the policy’s implementation pending a full hearing. Megaw said the policy could cause “irreparable harm.”
Later that day, Premier Scott Moe announced his government would recall the legislature early, invoke the notwithstanding clause and pass a law to protect the policy.
On Oct. 10, the emergency session began and Bill 137, which amends the Education Act, was introduced shortly after.
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Ministers, Opposition debate bill
On Thursday afternoon, Minister of Education Jeremy Cockrill and Minister of Justice Bronwyn Eyre took questions from the Opposition over a period of five hours.
NDP education critic Matt Love asked about what consultations took place before the policy was created in late August.
“During a handful of days in August, who did the ministry talk to?”
“We have consulted with experts in children’s lives that is their parents. We’ve done that all across the province. We’ve done it in every constituency. That’s the process for consultation,” Cockrill said.
In his ruling, Justice Megaw said, “There is no indication … that the [Education] Ministry discussed this new policy with any potential interested parties such as teachers, parents or students,” he wrote.
“There is further no indication any expert assistance was enlisted to assist in determining the effect of the policy. Finally, there is no indication the ministry sought any legal assistance to determine the constitutionality of the policy with respect to any potential considerations regarding the Charter,” Megaw wrote.
Both Moe and Cockrill have said the government developed the policy after hearing from parents and there was a desire for parental involvement to increase.
“We believe that the vast majority of Saskatchewan people want to be more involved in their child’s education and believe that the parental bill of rights accomplishes that,” Cockrill said.
Cockrill said in the assembly this week the government had heard from “tens of thousands” of people and doubled down on that number on Thursday.
“Absolutely, we have heard from tens of thousands of individuals in this province whether that be emails, calls, petitions, conversations at grocery stores or hockey games.”
Cockrill said he has had people contact him who support the bill but are “too afraid to say something.”
On Thursday evening, the NDP introduced a pair of amendments to the bill.
Its “do no harm” amendment would make it so parental consent would not be required in special cases where a mental health professional determines there is no safe way to inform a parent. The Saskatchewan Party members in the house voted against it.
The second amendment aimed to create a parental engagement strategy. That was also defeated in a vote.
Use of notwithstanding clause criticized
In recent days, the use of the notwithstanding clause to prevent legal action on the bill has come under the spotlight from academics and lawyers.
Howard Leeson, who was Saskatchewan’s deputy minister of intergovernmental affairs in the Allan Blakeney government, was central to the 1982 negotiations that repatriated the Canadian Constitution and created the notwithstanding clause.
Leeson said he and other architects of the clause intended it for provincial governments to use in exceptional circumstances — and only after all court matters had been completed.
Including the clause in the amended Education Act overrides any future court ruling for five years, including a hearing scheduled for next February.
“It would have been better for the government to wait until after the merits of the case itself had been argued,” Leeson said.
Heather Kuttai, the Saskatchewan Human Rights commissioner, submitted her resignation on Monday in the form of a letter to the premier.
“I can no longer continue. I strongly disagree with the proposed legislation that requires teachers to seek parental permission to change a child’s name and/or pronouns when they are at school. This is an attack on the rights of trans, non-binary, and gender-diverse children,” Kuttai wrote.
Kuttai said she came to the decision after discussions with her teenage son — who is transgender. She said she was disappointed in the government she represented for nine years.
On Tuesday, Moe said Kuttai’s resignation was “perplexing” because the policy she had been disputing had been in place or in practice for many years.
Fourteen University of Saskatchewan law professors and instructors added their voices Thursday to the issue of using the notwithstanding clause.
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The writers said the government is “knowingly overriding the constitutional rights of its citizens” and “acting in haste.” They urged the government to allow the normal legal process to take its course.
In response, Minister of Justice Bronwyn Eyre told reporters, “I would question why Saskatchewan would be accused of changing rules or altering rules when other provinces have used the notwithstanding clause on many occasions. It is a legislative tool. If anyone knows that, academic lawyers should know that.”
When asked by reporters whether other provinces had used the clause to override children’s rights, Eyre did not provide an example. An official later cited the Saskatchewan government’s inclusion of the clause in 2017 to protect school choice in a bill that was passed but was not proclaimed into law. The government was ultimately victorious in court and the clause was not invoked.
Eyre defended the use of the clause and said the government is “willing to be judged on that policy.”