Alberta prepares to invoke notwithstanding clause on transgender laws

Alberta Premier Danielle Smith’s government is preparing legislation to use the Charter’s notwithstanding clause to protect three transgender-related laws from court challenges.

Source: X

Author: Isaac Lamoureux

Alberta Premier Danielle Smith’s government is preparing legislation to use the Charter’s notwithstanding clause to protect three transgender-related laws from court challenges.

A leaked Alberta Justice Department document provided to the Canadian Press directs officials to bring forward amendments in the fall session so the laws operate notwithstanding the Charter and the Alberta Bill of Rights. True North has not seen the memo in question.

The notwithstanding clause is Section 33 of the Canadian Charter of Rights and Freedoms.

“Section 33 allows Parliament or the legislature of a province to derogate from certain sections of the Charter, namely section 2 (fundamental freedoms), sections 7 to 14 (legal rights) and section 15 (equality rights). It does not apply to democratic rights (section 3 — the right to vote, or sections 4 and 5 — the sitting of the House of Commons or other Canadian legislatures), mobility rights (section 6) or language rights (sections 16 to 23),” reads the Clause.

The suite of legislation was first announced by Smith on October 31, 2024.

The proposed amendments to the Health Statutes Amendment Act would prohibit health professionals from performing sex reassignment surgeries on minors. Additionally, children aged 15 and under would not be able to access puberty blockers or hormone therapies. Children aged 16 and 17 could use hormone therapies and puberty blockers with parental, physician, and psychologist approval.

“These policies are designed and intended to help preserve the choices children have before they make serious decisions about their bodies, or the ability to have children of their own one day, or undergo potentially permanent procedures where the benefits and risks are not yet fully understood,” said Smith at the time.

Using the notwithstanding clause for the legislation follows Smith’s issuing of new mandate letters to four of her ministers.

One of the letters, sent to Tourism and Sport Minister Andrew Boitchenko, instructed him to use every legal and constitutional option at his disposal to enforce Alberta’s new sports law.

The new legislation requires any athletes 12 years of age or older to confirm they were female sex at birth, with parental consent required for minors. These females will be able to compete in female-only sports leagues, free of intrusion by men pretending to be women.

The Tourism and Sport Ministry told True North that it will vigorously defend any laws should they be challenged in any way.

“Alberta’s government is working to ensure the full implementation of the Fairness and Safety in Sport Act using all available legal and constitutional means necessary to protect the integrity of our province’s female athletic competitions. We strongly encourage other provinces and territories to follow Alberta’s lead to ensure safe, fair and accessible sport for all,” said a ministry spokesperson.

Smith previously applauded Quebec for its use of the notwithstanding clause.

“Elected legislatures — not federally appointed judges — should have the final word on the scope of rights subject to a parliamentary sovereignty clause (known as the notwithstanding clause),” she said.

The proposal for Alberta’s notwithstanding clause usage is said to be brought before Cabinet on October 21, with the House resuming with a throne speech two days after.