Saskatchewan Proposes Suspending Charter Rights of Trans Minorities for Partisan Ends
The law of unintended consequences? We were warned this would happen
On September 14 2023, Saskatchewan Premier Scott Moe publicly mused about invoking the “notwithstanding clause,” or Section 33, of the Charter of Rights and Freedoms.
Why?
His conservative government instituted a new rule that requires parental permission for trans or non-binary students under age 16 to use different names or pronouns at school, and invoking Section 33 protects it against Constitutional oversight.
Section 33 is a part of the Charter that allows either federal or provincial governments to override certain rights and freedoms for any purpose in order to achieve a social goal, or prevent a direct threat to society. Any act passed under Section 33 will endure for five years, or until rescinded by the legislature that passed it.
In theory, Section 33 guards against judicial overreach and allows elected parliamentarians to carry out their duties unimpeded.
In practice, Section 33 has been used disproportionately by provincial governments to target minorities in order to impose populist agendas.
Moe has thrown his support behind the so-called “parental rights” movement that is, in fact, a social conservative invention to effect an end-run around Constitutional protections for LGBTQ+ children.
It creates a tiered system of rights, whereby LGBTQ+ children — and only LGBTQ+ children — are targeted by the state for oppressive treatment.
In the name of “parental rights” — which is itself an amorphous term since parents are not a protected class — trans and non-binary children are forcibly outed to, at best, potentially unsupportive parents or, at worst, abusive parents and home environments.
It bears noting that Canada’s Prairie provinces of Saskatchewan, Manitoba, and Alberta are the social conservative nexus of the country. Saskatchewan, with the highest rates of suicide, child poverty, domestic violence, murder, and incarceration is leading the charge.
Notably, “parental rights” makes no mention of those parents who are already supportive of LGBTQ+ children and who never called for such state-sanctioned abuses in their names.
Moe is not the first leader of a conservative government to consider similar actions. In 2019, the National Assembly of Québec, under Premier François Legault’s populist and nationalist Coalition Avenir Québec party, actually did invoke the notwithstanding clause with Bill 21.
Ostensibly, the purpose of the act was to enforce the official secularism of Québec on public servants by restricting overt displays of religiosity. In practice, the act disproportionately targeted Muslim women by forcing them to either abandon their religious headwear or quit their jobs.
Section 33 was famously invoked by Alberta Progressive Conservative Premier Ralph Klein in 2000 with Bill 202. The purpose was to amend the province’s Marriage Act to only allow unions between a man and a woman, effectively blocking the federal government’s proposed legalization of same-sex marriage.
However, Klein had to backtrack after the Supreme Court of Canada later ruled that marriage was the purview of the federal government, with the provinces merely providing the imprimatur of official registration.
When Section 33 was added to the Charter of Rights and Freedoms during the Charter’s drafting phase, there were many arguments both for and against its inclusion.
There are certainly good arguments to be made to keep Section 33 because, as already stated, Section 33 guards against a theoretical judicial overreach. Judges are not elected, they do not enact laws, and parliamentarians have a Constitutional duty to the electorate.
In practice, however, Section 33 has overwhelmingly been invoked preemptively by populist governments which knowingly trample on the otherwise-protected rights of minority citizens for mere political expediency.
In 1989, Constitutional law professor Wayne MacKay of Dalhousie University stated:
The notwithstanding clause should be kept, at least for the present. It permits debate about which rights are fundamental in Canadian society and which should prevail when rights are in conflict. In a democratic society steeped in the tradition of parliamentary supremacy, it is proper to give our elected legislators the final word.
But isn’t the point of entrenching rights in a Charter that you protect those rights by making the courts the final arbiters rather than the legislatures? Yes, it is, and despite the notwithstanding clause, that is what has happened and will continue to happen in all but a few situations.
Until the notwithstanding clause is abused “by some thwarting of the legitimate aspirations of a truly dispossessed or marginalized group in our society,” we should give our legislators and our Constitution the benefit of the doubt.
Professor MacKay couldn’t have known how future conservative governments would have thrown these ideals back in his face.
The purpose of Section 33 was to act as a safety valve against an overzealous judiciary, to counter a threat to important societal values or goals.
The existence of trans children does not present a threat or a danger to society.
Conservative, populist governments are relying on the ignorance and apathy of the majority of their citizens to suspend the rights of minorities. By trafficking in disinformation and joining in moral panics, these governments are normalizing abusing the massive, unforgiving power of the state to achieve partisan political ends.
Today it’s trans children. Tomorrow it’s trans adults. Recent events in the United States — where these populist movements are birthed — demonstrate unambiguously that the goalposts are constantly shifting for what are deemed acceptable levels of trans hate for conservatives.
In the US, first it was trans children. Then the goalposts shifted to ban bathroom access and school sports. Then the goalposts shifted to deny care and self-determination to all trans people including adults. Then the goalposts shifted yet again to fear-mongering against drag queens, and then shifted yet again to enact book bans and guard against “grooming” by drag queens.
As of this writing, there are 567 state bills targeting trans people specifically that are in various states of debate or enactment in state legislatures throughout the United States.
That this is happening right under our noses is bad enough.
That we are now importing this level of panic, hate, and blinding ignorance and are directing it toward a vulnerable and underage minority of our citizens, is abhorrent and morally, ethically, and legally repugnant.
Children — yes, even LGBTQ+ children — rely on the establishment and enforcement of legislative protections; they are by definition unable to guard their own interests against encroachment. They are still entitled to the same rights as any other citizen.
In Canada, every human being, whether adult or child, is a legal person with all the rights and Constitutional protections this entails. There are no tiers of rights. There are no “adult human rights” and “child human rights.”
Parenthood comes with obligations and responsibilities, not rights. If parents want to know what their children are doing, they have to earn that trust; it is not theirs by default.
Children are not the property of their parents. Case after case has confirmed the ability of children to exercise autonomy over their own identity, and this was confirmed yet again by the Supreme Court of Canada just this year.
In light of the consistent track record of its usage to oppress marginalized groups, Section 33 of the Charter of Rights and Freedoms must be repealed and replaced with a much narrower definition that proscribes such abuses.
Meghan McKie is a retired Naval officer, a writer, a crafter, and vinyl record enthusiast. She is a trans woman who transitioned on active duty.