Alberta prepares to invoke notwithstanding clause on transgender laws
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.
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.