Alberta premier Danielle Smith announced on Saturday during her radio call-in show “Your Province. Your Premier” that her provincial government is prepared to invoke the Canadian Charter of Rights and Freedoms’ “notwithstanding clause” as a “last resort” to enforce proposed restrictions on transgender healthcare and related policies, circumventing rights enshrined in the Charter. The restrictions would ban doctors from providing gender-affirming treatment for individuals under 16 years of age.
The proposed legislation aims to restrict access to gender-affirming health care for minors, including puberty blockers and hormone therapy. Smith’s government argues that the policies are designed to prioritize parental rights and ensure that health decisions involving minors receive greater oversight. Critics, however, contend that the restrictions undermine the rights of transgender youth and limit access to critical, evidence-based care.
The notwithstanding clause is found under Section 33 of the Canadian Charter of Rights and Freedoms. It allows federal or provincial governments to override certain charter rights for up to 5 years, after which it must be renewed for continued use. Three dozen Alberta Law professors wrote to the premier in February, saying the bill violates Charter rights. They wrote:
Given the risk of severe harm posed by the proposed restrictions, it is critical for courts to retain the ability to review the science, apply human rights law, and come to a determination on whether the restrictions can be justified in a free and democratic society. If the government genuinely believes that the restrictions are in alignment with the best interests of trans youth, invoking the notwithstanding clause should be wholly unnecessary.
This comes after a pair of LGBTQ+ advocate organizations (Skipping Stones and Five Alberta Families) challenged the bill in court last week, stating that Bill 26 violates gender-diverse young people’s Charter rights, including their section 7 right to security of the person, their section 12 right be free from cruel and unusual treatment and their section 15 right to equality. This also comes amidst a broader national debate over gender-affirming care, after the provinces of Saskatchewan and New Brunswick started requiring parental consent for students to use preferred names and pronouns. Both provinces are currently facing legal challenges over their actions.
