Alberta invokes notwithstanding clause on parents’ rights, women’s sports bills

Alberta’s government is taking swift action to protect three key pieces of transgender-related legislation, invoking the notwithstanding clause to immediately shut down anticipated court battles.

Source: X

Alberta’s government is taking swift and decisive action to protect three key pieces of transgender-related legislation, invoking the notwithstanding clause to immediately shut down anticipated and ongoing court battles and ensure the laws take effect without delay.

Bill 9, the Protecting Alberta’s Children Statutes Amendment Act, applies the notwithstanding clause of the Charter of Rights and Freedoms, the Alberta Bill of Rights, and the Alberta Human Rights Act to various pieces of legislation.

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 clause will be applied to Bill 26, The Health Statutes Amendment Act, 2024, Bill 27, The Education Amendment Act, 2024, and Bill 29, The Fairness and Safety in Sport Act.

These bills restrict gender reassignment surgery for minors and prohibit puberty blockers and hormone treatments for those younger than 16 years old. They also require parental consent for children under 16 to change their pronouns or names at school for gender identity reasons. Furthermore, parents must give permission for teaching on gender identity, sexual orientation, or human sexuality.

School authorities must also obtain government approval for certain teaching resources related to gender identity, sexual orientation or human sexuality.

One bill also requires governing bodies for amateur competitive sports to ensure that female leagues are free from intrusion by biological males.

Premier Danielle Smith said the legislation responds to three active lawsuits and an injunction blocking parts of last year’s Health Statutes Amendment Act, 2024.

“This government does not turn to the notwithstanding clause unless the stakes warrant it. And in this case, the stakes could not be higher,” she said.

The government said three challenges are currently before the courts, with potential appeals extending the timeline for years. Smith told reporters the province will not wait for a full judicial process before enforcing restrictions on irreversible procedures for minors.

“These delays are not acceptable to this government when children are in harm’s way,” she said.

Smith also gave a message directly to young Albertans navigating their identity.

“You deserve dignity, understanding and support. We will never stop working to keep you safe. You belong in Alberta. We firmly believe that. We also believe it’s our duty to protect you. This legislation is about your future. So when the time comes, you have every opportunity to make the adult decisions that are rightfully yours and yours alone,” she said.

Justice Minister Mickey Amery said the government believes invoking the clause will effectively halt ongoing court challenges.

“We’ve said previously that we’re prepared to use every single legal and constitutional tool available to protect the well-being of young people, and that’s why we’ll be invoking the notwithstanding clause,” he said. “We believe that this is a necessary measure to ensure that these laws stand without further court delay or uncertainty.”

Smith and Amery both explained why the notwithstanding clause exists, with Smith calling Bill 9 “one of the most consequential actions our government will take during our time in office.”

The premier explained that the notwithstanding clause exists to balance the power between courts and the democratically elected government.

She added that when courts “behave irresponsibly,” they should expect legislators to respond appropriately, such as through the notwithstanding clause. Smith pointed to the recent Supreme Court decision striking down mandatory minimum sentences for child porn possession as an example.

“We’re observing is rather than deal with the cases at hand, and in that case, to horrendous pedophiles with graphic, awful images of children, the court decided to pluck a hypothetical case out of the air in order to strike down mandatory sentencing,” she said. “So I would say that the court should begin to expect that if they are going to make decisions like that, they’re going to see more legislatures take the action that we did.”

Smith added that the decision was 5-4, meaning the court isn’t even in full agreement.

“The notwithstanding clause is, and why it’s a tool that elected legislatures use. The notwithstanding clause is integral to the Canadian Charter of Rights and Freedoms and a vital provincial constitutional right. It’s intended to preserve the ability of elected legislatures to make final policy choices in the interests of the public,” said Amery. “We’ve heard from Albertans, and they expect us to deliver on our mandate to protect young people, and their families will not apologize for putting our children first.”

The government reiterated that Section 33 of the Charter allows legislation to operate “notwithstanding sections 2 and 7-15,” with a five-year limit that can be renewed. The provisions in the Alberta Bill of Rights and Alberta Human Rights Act do not expire.