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 derailing the legislation.
The trio of bills, respectively, limit gender-affirming treatment for transgender youth, ban transgender participation in women’s’ 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. One of the laws was suspended earlier this year by a provincial judge.
Alberta Justice Minister Mickey Amery, during a Monday news conference, said 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.
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.
Protesters gather at the legislature during a rally in Edmonton in February, 2024.AMBER BRACKEN/The Canadian Press
The clause’s invocation — 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 the news conference on Monday, one day prior to the bill being tabled.
Medical associations and LGBTQ+ advocates have called the legislation the most restrictive in Canada regarding gender, sexuality and identity.
Alberta teachers to challenge Danielle Smith’s government in court over notwithstanding clause
Bennett Jensen is director of legal at Egale Canada and co-counsel with lawyers from McCarthy Tétrault in cases challenging two of the three bills. He said he doesn’t know for certain whether the cases will be determined invalid.
Mr. Jensen called the government’s decision “chilling.”
“We can’t lose sight of the permission structure for hate that is created when a minority population is targeted by a political party. And that’s what’s happening,” he said.
Ms. Smith has publicly toyed with invoking the clause for this suite of bills since earlier this year and said she was unwilling to entertain multiyear court challenges.
“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.
Alberta NDP Leader Naheed Nenshi told reporters on Tuesday that the government’s decision is “unconscionable,” adding there’s little the opposition can do to fight it.
“I can only think of two reasons that the government would want to do this,” he said. “Number one is because there’s so many horrible things going on and they are such bullies that they’ve decided that basic human rights don’t matter. ... Number two is because they’re drunk on power.”
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 Court of King’s Bench Justice Allison Kuntz. She said the ban would cause irreparable harm to gender-diverse youth.
Alberta’s plan to invoke notwithstanding clause on transgender laws draws criticism
The injunction, she wrote, would allow this marginalized group to continue receiving medical care from trusted health professionals, maintain patient autonomy and avoid further discrimination.
Canadian Medical Association president Margot Burnell said, in a Tuesday statement, that Alberta is restricting access to medically necessary care and infringing on physicians’ freedom of conscience by taking this “extraordinary measure.”
“This kind of political intrusion into evidence-based care is unacceptable and risks setting a precedent that affects other national health issues, such as vaccination or reproductive health,” said Dr. Burnell.
Brian Wirzba, president of the Alberta Medical Association, said Alberta’s restrictions cause uncertainty for gender-diverse young people, many of whom have experienced their first, or only, safe space in examination rooms with trusted doctors.
Alberta Premier Danielle Smith speaks during a news conference in Calgary on Feb. 19.Jeff McIntosh/The Canadian Press
He said this strikes at the core of a doctors’ medical ethics, affecting patient autonomy, risking maleficence by hindering medically necessary treatment and preventing physicians from providing appropriate care.
“No matter your personal views on gender-affirming care, this event will have a chilling effect on our members,” said Dr. Wirzba. “When a government grants itself licence to override physician judgment and patient consent, who — at any stage of life — will be next?”
About her government’s increasing reliance on the notwithstanding clause, Ms. Smith referred to an unrelated Supreme Court of Canada decision that ruled 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.” Ms. Smith added that the recent decision is a” demonstration the courts are not consistent with the values that Albertans or Canadians have.”
Smith defends Alberta’s possible use of notwithstanding clause on transgender issues
Since the late 2010s, some conservative provincial governments have turned the rarely used tool into something of a shield to protect their laws from Charter challenges.
The Supreme Court is currently weighing in on whether lesser courts can declare that any law being protected by the notwithstanding clause is a violation of rights. This is in response to separate decisions in Quebec and Saskatchewan; Alberta was granted intervenor status in both cases.
In Saskatchewan, the province’s Court of Appeal ruled in August that governments that use the notwithstanding clause aren’t automatically shielded from judicial review. This ruling was in response to the province’s use of the notwithstanding clause for a bill requiring parental consent for name or pronoun changes in schools for children under 16.
The Supreme Court has agreed to hear Saskatchewan’s appeal of that decision.