The Supreme Court of Canada announced in November that it would hear appeals of a Saskatchewan case around its pronoun law.Justin Tang/The Canadian Press
The Canadian Medical Association, in an unusual move, has applied to intervene before the Supreme Court in a case involving Saskatchewan’s use of the notwithstanding clause to mandate parental consent for pronoun changes in school.
Canada’s top court announced in November that it would hear appeals of a Saskatchewan case around its pronoun law, which requires children younger than 16 to have parental consent to change their name or pronouns. The provincial government is the main appellant.
This case will test the boundaries of the notwithstanding clause, a provision that allows governments to override certain sections of the Charter for up to five years. Alberta has also invoked the clause for three sweeping bills affecting transgender and gender-diverse youth, including one that limits access to gender-affirming health care.
Ottawa calls on Supreme Court to clarify the law around use of Charter’s notwithstanding clause
Margot Burnell, president of the CMA, a national advocacy organization that represents more than 75,000 physicians, said the Supreme Court decision will have impacts far beyond the issues at play in Saskatchewan. She said the case is “critically important” for the future of health care.
“The issue to be decided really is whether the court may still declare that legislation violates Charter rights when a provincial government has already invoked the notwithstanding clause,” said Dr. Burnell. “This decision will be precedent setting.”
She said the decision will impact existing and future cases at the intersection of health care and Charter rights, including the constitutional challenge filed by the CMA and three Alberta doctors last May against the Alberta government over its legislation that limits medical treatment for transgender youth.
Margot Burnell, president of the Canadian Medical Association, said the Saskatchewan case is ‘critically important’ for the future of health care.Supplied
The law bans doctors from prescribing puberty blockers and hormone therapies for youth under 16 and prohibits gender-reassignment surgeries on minors (those under 18), which are already performed rarely in Alberta. The CMA has called this an “unprecedented government intrusion” that threatens the relationship between patient and physician.
Last November, Alberta invoked the notwithstanding clause in a bid to prevent courts from derailing the legislation.
The UR Pride Centre for Sexuality and Gender Diversity, an organization at the University of Regina, filed a legal challenge against Saskatchewan’s pronoun policy in 2023. Shortly after, the provincial government invoked the notwithstanding clause.
Dr. Burnell said the clause should not be a tool to end public and legal debate. She said the CMA, if granted intervenor status, is uniquely positioned to argue why the courts’ ability to issue Charter violations matters for health policy.
“At the end of the day, we want what’s best for patients, best for the patient-doctor relationship, the ability to practice with freedom of conscience and to be able to practice in the realm of our ethical and moral obligations to the patients,” she said.
Former PM Chrétien warns against premiers’ quick use of the notwithstanding clause
The CMA has acted as an intervenor four times since 1995. The most recent was in 2015 in the case of Carter v. Canada that legalized medical assistance in dying. The association took the position that doctors should be able to follow their conscience if MAID were legalized.
The Saskatchewan case is one of two being heard by the Supreme Court that revolve around potential limits on governments’ use of the notwithstanding clause. Starting next Monday, the top court will hold a landmark hearing over four days on Quebec’s secularism law.
Quebec deployed the notwithstanding clause in 2019 to protect a law that bans some public-sector workers, including teachers and police officers, from wearing religious symbols, such as hijabs, at work.
A hearing date has not been scheduled for the Saskatchewan case. The CMA does not know when a decision will be made on its intervenor status.