Alberta to use notwithstanding clause on its three transgender laws: memo

A leaked memo suggests Premier Smith would use the notwithstanding clause that would shield transgender youth from court challenges. Mason DePatie reports.

EDMONTON — Alberta Premier Danielle Smith has directed officials to invoke the Charter’s notwithstanding clause in amending three laws that affect transgender people, says a leaked government memo obtained by The Canadian Press.

The internal document sent Sept. 10 by the justice department asks other departments to assemble information as per a directive from Smith’s office to invoke the clause.

“As you are aware, the premier’s office has directed that legislation be developed for the fall legislative session to amend the following pieces of legislation to permit each to operate notwithstanding the Canadian Charter of Rights and Freedoms and the Alberta Bill of Rights,” says the memo from Malcolm Lavoie, deputy minister of justice.

“This legislative initiative is highly sensitive and should be approached with the utmost confidentiality.”

The document directs officials to craft background information on legal implications and other options to be considered.

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It says the plan is to brief Smith ahead of time, then bring the proposal to cabinet Oct. 21. The house resumes sitting with a throne speech two days later.

Justice spokesperson Heather Jenkins, asked Thursday for comment on the memo, responded in a one-sentence statement.

“Alberta’s government will continue to vigorously protect the safety and well-being of children using all available legal and constitutional means at our disposal, including the notwithstanding clause should our government deem it necessary,” Jenkins wrote.

The three laws, introduced last year, establish rules for students changing their names or pronouns in school, ban transgender girls from participating in amateur female sports, and limit gender-affirming health care.

LGBTQ+ advocacy groups Egale and Skipping Stone are challenging in court the school pronoun law and rules that would limit health care for transgender youth, calling them discriminatory.

Helen Kennedy, executive director at Egale Canada, said using the notwithstanding clause is “an unconscionable attack on 2SLGBTQI people, and a horrific example of state-sponsored transphobia.”

“When our governments abuse their power by invoking the notwithstanding clause to limit the protections of the Charter of Rights and Freedoms, it’s not just an attack on queer and trans communities, it is an attack on all Canadians.”

The notwithstanding clause is a rarely used provision that allows governments to override certain sections of the Charter for up to five years. It’s a tool Smith has said was on the table as a “last” resort regarding the government’s transgender health restrictions.

Smith also expressed faith the law could withstand a Charter challenge.

“We’re going to argue that we’re being reasonable, proportionate and evidence-based, and we’ll see how it goes in court,” Smith said last December.

Meanwhile, the legal challenges continue to work their way through the courts.

The law prohibiting doctors from providing gender-affirming treatment such as puberty blockers and hormone therapy for youth under 16 isn’t yet in effect because of a temporary court injunction issued in June. Alberta appealed the injunction in August.

The education law came into effect at the start of this school year. It requires students under 16 to have parental consent to change their names or pronouns in school. Those ages 16 and 17 don’t need consent, but their parents have to be notified.

The third law, which is in effect, blocks transgender athletes 12 and older from competing in female amateur sports in Alberta. Shortly after the school year started, some school divisions sent eligibility forms to parents asking them to confirm their children were assigned female at birth so they can compete on girls teams.

Earlier this week, Smith directed Sport Minister Andrew Boitchenko to use all “legal and constitutional means necessary” to ensure the sports law is implemented in full.

Alberta is not alone in invoking the notwithstanding clause.

Saskatchewan Premier Scott Moe’s government used the clause in 2023 in its similar school pronoun law, which is also being challenged.

Last month, a Saskatchewan court ruled the notwithstanding clause prevents it from striking down that pronoun legislation. However, the judges said the use of the clause doesn’t prevent them from issuing a declaratory ruling on whether the law violates constitutional rights.

Earlier this week, Alberta also filed arguments as part of a landmark Supreme Court of Canada case on Quebec’s secularism law. It prohibits public sector workers in positions of authority, including teachers and judges, from wearing religious symbols on the job.

Alberta supports Quebec and, in its court filing, said the notwithstanding clause was a “hard-fought and hard-won compromise” during constitutional negotiations and preserves the provinces’ parliamentary sovereignty.

Prime Minister Mark Carney has said he opposes the pre-emptive use of the notwithstanding clause.

This report by The Canadian Press was first published Sept. 18, 2025.

Lisa Johnson and Jack Farrell, The Canadian Press