The historic Aug. 11 ruling by the Court of Appeal for Saskatchewan in Saskatchewan (Minister of Education) v. UR Pride Centre for Sexuality and Gender Diversity, 2025 SKCA 74 is the latest chapter in a fight over the province’s pronoun rule for its schools — and the government’s use of the notwithstanding clause to implement the rule.
The appeal court maintained that the government’s pre-emptive use of the notwithstanding clause does not bar courts from declaring that laws allowed to operate contrary to the Charter do, in fact, infringe on people’s Charter rights.
Enacted in 2023, Saskatchewan’s pronoun law makes it so children under 16 need their parent’s permission before being able to change their gender pronouns or names; teachers and school staff are compelled to follow the rule.
After invoking the law, Saskatchewan’s government used the notwithstanding clause to protect its pronoun rule from judicial review.
UR Pride Centre for Sexuality and Gender Diversity, a Regina-based advocacy organization, launched a legal challenge.
The notwithstanding clause, contained in s. 33 of the Charter, permits the government to adopt legislation to override certain rights and freedoms for a period of time, subject to renewal.
But Saskatchewan’s appeal court decided 4-1 that democracy is strengthened if citizens are made aware of when their rights are being limited through laws enacted via the notwithstanding clause.
“The proper functioning of our constitutional democracy is enhanced, not impaired, if Canada’s citizens, and legislators alike, are made aware when legislation that is allowed to operate by virtue of [the notwithstanding clause] does so in a way that limits Charter rights and freedoms,” found Justice Robert Leurer, who wrote for the majority of the court.
Justices Georgina Jackson, Lian Schwann and Jerome Tholl agreed with Justice Leurer, while Justice Neal Caldwell stood in dissent.
Justice Leurer found that the lower court in this case had “the jurisdiction to determine” whether the pronoun law limits the Charter rights of individuals — and thus has the ability to “issue a declaratory judgment” on the matter.
The appeal court decided that while the pronoun law still stands, the lower court had the ability to at least grant a declaration that the law violates people’s rights.
Adam Goldenberg, McCarthy Tétrault
“Legislatures do not have the power under Section 33 of the Charter to oust the jurisdiction of a superior court to answer a constitutional question — namely, does this law unreasonably limit rights that are guaranteed in the Charter,” said Goldenberg, a partner with McCarthy Tétrault in Toronto.
“The government’s position has been that the notwithstanding clause is a showstopper, whether it is invoked before or after a court has made a ruling on the merits — [that] the legislature has the power to shut the judiciary out of the conversation completely. What the Court of Appeal has decided … is that that is not what the notwithstanding clause says, nor is it what the notwithstanding clause means, that the judiciary still has a role — at least still has discretion to grant a declaration that a law that operates notwithstanding Charter provisions unreasonably limits the rights guaranteed in the Charter.”
Saskatchewan’s government has reportedly said in the past it would take the issue to the Supreme Court of Canada if necessary.
A request for comment from legal counsel representing the Saskatchewan government was not returned.
Meanwhile, a similar challenge involving Quebec’s use of the notwithstanding clause is on its way to the Supreme Court of Canada. That case involves the Quebec government’s use of s. 33 to bring about its controversial prohibition on public sector workers from wearing religious symbols.
Unlike the Saskatchewan case, the Quebec government reportedly won two court rulings in that province, which resulted in the case being filed to Canada’s top court.
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