The Alberta government has tabled legislation that seeks to invoke the notwithstanding clause to shield a suite of bills from legal challenges that affects transgender youth and adults.
Premier Danielle Smith said at a news conference on Monday that three ongoing legal challenges to gender policies in health care and education could take years to resolve and create too much uncertainty.
“This government does not turn to the notwithstanding clause unless the stakes warrant it, and in this case, the stakes could not be higher,” Smith said Monday, before the bill was introduced Tuesday.
“This is one of the most consequential actions our government will take during our time in office.”
In question are three pieces of legislation the United Conservative Party government introduced last year that government officials say protect the well-being of children and youth and increase parent access to information and decision-making power over children.
Critics have panned the legislation as violations of rights based on misinformation that unfairly target transgender youth and adults, as well as women and girls in competitive sports.
Bill 26, passed by the legislature last year, prevents youth under 16 from accessing gender-affirming treatments, including puberty blockers and hormone therapy. It also prohibits gender surgery for minors. The legislation was a Canadian first.
Both the Canadian Medical Association and a pair of 2SLGBTQ+ advocacy organizations have challenged the legislation in court.
In June, a judge granted an injunction pausing the law’s implementation, saying the new rules could be harmful if enacted before the court heard all evidence.
Advocacy groups Egale and the Skipping Stone Foundation are also challenging legislation formerly known as Bill 27, which imposed new requirements on how school staff handle gender identity issues.
Staff must tell the parents or guardians of any students under 18 who wish to be addressed by a name or pronoun of a different gender identity. Parents of students under 16 must give permission for school staff to use the student’s chosen name and pronouns.
The bill also made Alberta the first province where parents must opt students into lessons about sexual health, gender identity or sexual orientation.
Alberta may invoke notwithstanding clause on transgender laws
The education minister must approve all resources and classroom presenters for lessons on sexual health, gender identity or sexual orientation.
A third bill, the Fairness and Safety in Sport Act, requires anyone participating in female-only competitive sports in Alberta to have been assigned female at birth. Some organizations, including school boards, have adopted policies that allow people to anonymously challenge the gender identity of athletes.
In an emailed statement last week, a spokesperson for Egale said the organization had not launched a legal challenge against the sports bill but was committed to opposing the law.
Justice Minister Mickey Amery said as evidence and policy around the best standards of care for trans youth evolves around the world, his government is attempting to use the notwithstanding clause to “err on the side of caution” by limiting access to puberty blockers, hormones and surgery.
Although the premier defended the moves by saying children deserve to have their fertility preserved until they are mature enough to make potentially life-changing decisions, medical experts say taking puberty blockers alone should not affect a person’s fertility in the long term.
In response to reporters’ questions about why it was urgent to shield the school and sports laws from court challenges, Amery said the government doesn’t want to come back to the legislature to invoke the notwithstanding clause multiple times.
“This is needed now. It’s needed to be a sweeping motion that addresses all three of these acts,” he said.
If passed, the Protecting Alberta’s Children Statutes Amendment Act, also called Bill 9, would shield the laws from Charter challenges for five years.
It would also suspend the application of the Alberta Bill of Rights and the Alberta Human Rights Act to the laws in perpetuity.
Amery said once the bill is passed, courts can’t strike down laws to which the notwithstanding clause applies. He said proclaiming Bill 9 should terminate all court actions against the bills.
Anticipating the bill might be tabled in the legislature Monday, advocates gathered outside the legislature in Edmonton speaking against the move.
Transgender woman Marni Panas said the government’s move to invoke the notwithstanding clause pre-emptively, before the courts have had a chance to consider whether the gender bills violate Charter rights, is an attack on human rights and vulnerable youth.
“The justice system exists as a check and balance of political power,” Panas said. “When governments undermine that system to impose laws based on ideology or whims of a leader, democracy begins to crumble.”
It is the second time in three weeks that the Alberta government has turned to the notwithstanding clause to prevent a court from overturning its laws.
On Oct. 27, the government tabled and passed the Back to School Act in one sitting day, which forced 51,000 locked-out teachers back to work, imposed a four-year contract on them, and used the clause to limit court challenges.
The Alberta Teachers’ Association launched a court challenge of that bill, regardless of the clause.
Alberta NDP leader Naheed Nenshi on Monday said the premier’s intention to suspend more rights is “cowardly” and troubling.
“We’re taking away the right for parents and doctors to decide the best course of treatment for their children,” he said. “Where does it end?”
