Alberta aims to invoke the notwithstanding clause to amend three transgender laws, sparking legal and public debates over Charter rights protections.
Alberta Moves to Override Charter for Transgender Laws
Directive from Premier’s Office
Alberta Premier Danielle Smith has instructed officials to invoke the Canadian Charter’s seldom-used notwithstanding clause in amending three laws affecting transgender people, according to a leaked government memo obtained by The Canadian Press. The document, sent by Deputy Minister of Justice Malcolm Lavoie on Sept. 10, emphasizes confidentiality and requests departments to prepare legal background information and options for Smith’s review.
Laws Targeted for Amendment
The three laws under consideration, introduced last year, include rules requiring parental consent for students under 16 to change names or pronouns in school, a ban on transgender girls competing in amateur female sports, and restrictions on gender-affirming health care for minors. The education law is already in effect, while the health-care restriction remains paused due to a temporary court injunction.
Legal Challenges Loom
Advocacy groups Egale Canada and Skipping Stone have challenged the school pronoun and health-care laws in court, citing discrimination against 2SLGBTQ+ youth. Helen Kennedy, executive director at Egale, criticized the potential use of the notwithstanding clause as “an unconscionable attack on 2SLGBTQI people” and a broader threat to Canadian rights.
Premiere’s Justification
Premier Smith has previously stated that the clause is a last-resort tool to uphold transgender health restrictions and expressed confidence that the laws could withstand Charter challenges. She told reporters in December that the government intends to argue its policies are “reasonable, proportionate, and evidence-based.”
Implementation Timeline
The memo indicates that the proposal will be briefed to Smith ahead of a cabinet meeting on Oct. 21, with the legislative session resuming two days later. Sport Minister Andrew Boitchenko has been directed to enforce the sports law fully, emphasizing “all legal and constitutional means necessary.”
Wider Context and Federal Response
Alberta is not the first province to invoke the notwithstanding clause. Saskatchewan used it in 2023 for a similar school pronoun law, which a provincial court upheld as valid while noting the possibility of a declaratory ruling. Meanwhile, Alberta has joined Quebec in defending the clause in a Supreme Court case regarding public sector workers and religious symbols. Prime Minister Mark Carney opposes preemptive use of the clause, raising questions about provincial-federal tensions over constitutional rights.
Implications for Canadians
The move highlights ongoing debates over the balance between provincial authority and Charter protections. Legal experts note that invoking the notwithstanding clause allows Alberta to temporarily bypass certain rights protections for up to five years, but the long-term consequences for transgender youth, schools, and health-care providers remain uncertain.
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