Alberta Government Moves to Use Notwithstanding Clause on Transgender Laws

The Alberta government is preparing to invoke the notwithstanding clause of the Canadian Charter of Rights and Freedoms concerning three contentious laws that significantly impact transgender individuals. An internal memo from the justice department, dated September 10, 2023, outlines plans to develop legislation for the fall session that would permit these laws to function despite potential conflicts with the Charter and the Alberta Bill of Rights.

The laws in question impose restrictions on gender-affirming health care for youth under the age of 16, mandate parental consent or notification when students wish to change their names or pronouns in school, and prohibit transgender girls and women from participating in female amateur sports. Alberta Justice has stated that the government is committed to “vigorously protect the safety and well-being of children using all available legal and constitutional means,” including the potential use of the notwithstanding clause.

Cabinet is expected to deliberate on this proposal on October 21, 2023, just before the legislature reconvenes with a throne speech on October 23. The notwithstanding clause, outlined in Section 33 of the Charter, allows provincial governments to enact laws that may contravene certain Charter rights for a period of five years, with the possibility of renewal.

Implications of the Notwithstanding Clause

According to Eric Adams, a constitutional law professor at the University of Alberta, the notwithstanding clause has been utilized sparingly since its introduction in 1982. “It’s a powerful mechanism,” Adams explained. “Even if a court finds a law interferes with equality rights or freedom of religion, the notwithstanding clause protects it from being struck down.” He emphasized that the government’s proposal is still in its early stages and requires legislative debate and approval to move forward.

If enacted, Alberta would join Quebec, Ontario, and Saskatchewan in utilizing the clause. Saskatchewan recently invoked it in 2023 to protect a similar law regarding pronouns from judicial scrutiny. Adams noted that invoking the notwithstanding clause would relieve the government of the need to defend these laws in court, though courts could still issue declaratory rulings regarding potential rights infringements.

Community Reactions and Concerns

The government’s plan has sparked significant concern among LGBTQ+ advocates and community members. Milo Benard, a trans man from Calgary, expressed deep dismay at the potential consequences. “Everybody, regardless of whether they’re cisgender or transgender, should have the opportunity to explore their identity,” he stated. Benard highlighted the dangers of requiring parental consent, noting that many young people may not have supportive families and that schools often serve as safe havens.

He also criticized the restrictions on access to puberty blockers, arguing that delaying care until age 16 could lead to emotional and physical distress. “This is taking away their agency and forcing them to live in a way that is not themselves,” he added. Benard’s message to Premier Danielle Smith was clear: “Just listen to these kids and families. What you’re putting in place could potentially lead to the death of children.”

The reaction from advocacy organizations has been equally strong. Amelia Newbert, co-executive director of the Calgary-based Skipping Stone Foundation, described the community’s sentiment as “devastated.” She emphasized the profound impact on young individuals who have been waiting for gender-affirming care. “We are risking people’s lives,” she warned, highlighting the potential rise in suicide rates among trans youth as access to necessary care is threatened.

Helen Kennedy, executive director of Egale Canada, condemned the government’s decision, labeling it an “abhorrent” abuse of power. She noted that Premier Smith had previously indicated a willingness to let the judicial process unfold. “Now to overrule all the experts and medical evidence for political purposes is shameful,” Kennedy stated, calling attention to the emotional toll on families facing these changes.

Legal battles are already underway regarding two of Alberta’s laws—the school pronoun regulations and the healthcare restrictions. Advocacy groups, including Egale and Skipping Stone, have initiated legal challenges, and in June, a judge issued an injunction halting the ban on puberty blockers for minors under 16, citing the potential for “irreparable harm.” The province is currently appealing this decision.

The education law, which went into effect this fall, requires parental consent for students under 16 to change their names or pronouns, while school boards have begun confirming children’s sex at birth for sports eligibility. The law banning transgender athletes from female divisions is also in effect, with Smith directing the sports minister to utilize “all legal and constitutional means” to enforce it.

Adams pointed out that while the government may view the notwithstanding clause as a “last resort,” its implications extend beyond Alberta. The use of this clause can set precedents that may affect rights across Canada. Prime Minister Mark Carney has publicly opposed the pre-emptive use of the clause, highlighting its potential for misuse.

As the situation develops, members of the trans community, like Benard, urge the government to listen to the voices of those directly impacted. “Kids know who they are,” he said. “If the government really wants to protect them, it should be listening to what they’re asking for instead of taking it away.”