Alberta invokes notwithstanding clause on three bills affecting trans and gender-diverse youth
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Protesters gather at the legislature during a rally in Edmonton in February, 2024.AMBER BRACKEN/The Canadian Press
Alberta Premier Danielle Smith has invoked the notwithstanding clause for three sweeping bills affecting transgender and gender-diverse youth that were passed last year in a bid to prevent courts from weighing in on the legislation.
The three pieces of legislation respectively limit gender-affirming treatment for transgender youth, ban transgender participation in womens’ and girls’ sports divisions, and require parental consent for name and pronoun changes in school while also requiring parents to opt their child into sexual education.
Three lawsuits challenging the bills are currently before Alberta courts and one of the laws was suspended earlier this year by a provincial judge.
Alberta Justice Minister Mickey Amery said at a Monday news conference at the Alberta Legislature that he believes invoking the notwithstanding clause will end the litigation process for all three lawsuits. He argued the clause has been used sparingly, citing the only two previous occasions it was invoked in Alberta: “I would argue that it’s not used frequently.”
However, this is the second time in a little more than three weeks that Ms. Smith’s government has turned to the Charter provision that overrides sections of the Canadian Charter of Rights and Freedoms, as well as the Alberta Bill of Rights and the Alberta Human Rights Act.
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The clause’s invocation – a rare move historically viewed to be a last resort – has been subject to intense debate as a number of provinces have used it more frequently in recent years, while the federal government has sought to limit its use.
“This is one of the most consequential actions our government will take during our time in office,” Ms. Smith said during a news conference held on Monday before a bill, which will invoke the clause for all three pieces of legislation, was tabled Tuesday.
Medical associations and LGBTQ+ advocates have called the three pieces of legislation the most restrictive in Canada regarding gender, sexuality and identity.
Ms. Smith has publicly toyed with invoking the clause for this suite of bills since earlier this year, and, in September, documents obtained by The Canadian Press said the Premier’s Office had directed officials to invoke the clause. She has stated an unwillingness to entertain multiyear court challenges, citing her government’s position that gender-affirming care such as puberty blockers cause irreparable harm.
“These lawsuits could take years to resolve, including possible appeals to the Supreme Court,” said Ms. Smith at Monday’s news conference. “These delays are not acceptable to this government when children are in harm’s way.”
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The notwithstanding clause declaration expires after five years, though it can be extended.
In June, Alberta’s law banning gender reassignment surgery for youth under 18 and puberty blockers and hormone treatment for those under 16 was suspended by an Alberta judge.
In her decision, Court of King’s Bench Justice Allison Kuntz wrote she believed the ban would cause irreparable harm to gender-diverse youth.
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Alberta Premier Danielle Smith speaks during a news conference in Calgary on Feb. 19.Jeff McIntosh/The Canadian Press
The injunction, she wrote, would “allow this marginalized group to continue receiving medical care from trusted doctors and a broader team of health professionals” and avoid interfering with patients’ autonomy and “unwanted and permanent development, serious stress and anxiety and further discrimination.”
The judge also ruled that the ban could be viewed as “the government prying into the intimacies of the lives of the youth and families who will be impacted.”
Ms. Smith said Monday the notwithstanding clause was appropriate for all three pieces of legislation, including the bill requiring parental consent for children wishing to change their pronouns in school.
“If children are going to go down this pathway, whether it begins with pronouns or moves to puberty blockers or ultimately goes to surgery, we don’t want there to be any disconnect with their families,” she said.
Smith defends Alberta’s possible use of notwithstanding clause on transgender issues
Asked about concerns regarding her government’s increasing reliance on the notwithstanding clause, Ms. Smith referred to a recent Supreme Court of Canada decision ruling one-year mandatory minimum sentences for accessing or possessing child pornography to be unconstitutional. She said courts should expect the government to invoke the notwithstanding clause if they continue to “make decisions like that.”
“If the courts are going to behave irresponsibly, then they should expect that legislatures are going to respond,” she said. “That, to me, is a demonstration the courts are not consistent with the values that Albertans or Canadians have.”
The notwithstanding clause was rarely used for years, but since the late 2010s some conservative provincial governments have turned to it as a tool to shield their laws from Charter challenges.
The Supreme Court is currently weighing in on whether courts can declare a law protected by the notwithstanding clause to be a clear violation of rights in response to separate laws in Quebec and Saskatchewan. Alberta was granted intervenor status in both cases.
In Saskatchewan’s case, the province’s Court of Appeal ruled in August that governments that use the notwithstanding clause aren’t automatically shielded from judicial review – a ruling that was in response to the provincial government’s choice to invoke the clause for a bill requiring parental consent at school when children under age 16 want to change their names or pronouns.
The Supreme Court has agreed to hear the Saskatchewan government’s appeal of that decision.
