Alberta Premier Danielle Smith has instructed officials to use the Charter’s notwithstanding clause in amending three provincial laws affecting transgender people, according to a leaked government memo obtained by The Canadian Press.The Sept. 10 document, circulated by the Justice Department, asks government ministries to prepare material following direction from Smith’s office.“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,” wrote Deputy Justice Minister Malcolm Lavoie..The memo, marked confidential, said Smith is to be briefed before the proposal goes to cabinet Oct. 21. The legislature resumes two days later.Justice Ministry spokesperson Heather Jenkins, asked Thursday about the memo, issued a brief statement to CP.“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 laws in question were passed last year. They require parental consent for students under 16 to change names or pronouns at school, prohibit transgender girls from competing in female amateur sports, and restrict access to gender-affirming medical care.Two of the measures are under legal challenge from advocacy groups Egale Canada and Skipping Stone, who argue the policies are discriminatory. Helen Kennedy, executive director of Egale, said invoking the clause amounts to “an unconscionable attack on 2SLGBTQI people” and undermines protections guaranteed by the Charter.Smith has previously said the province’s restrictions are designed to be “reasonable, proportionate and evidence-based” and could withstand a constitutional challenge.."This kind of political interference is unacceptable and risks setting a precedent that affects other national health issues, such as vaccination, reproductive health, medical assistance in dying, or even cancer or surgical care," Dr. Margot Burnell, President of the Canadian Medical Association said..The health-care law, which bans puberty blockers and hormone therapy for youth under 16, is currently suspended due to a temporary injunction. Alberta has appealed that ruling. The education law took effect this school year. Students aged 16 and 17 may change pronouns or names without parental consent, but parents must still be notified.The sports law, already in force, bars transgender athletes 12 and older from playing in female divisions. Some schools have since required parents to verify their children’s sex assigned at birth before competing on girls’ teams. Smith has directed Sport Minister Andrew Boitchenko to ensure the law is fully implemented.Alberta is not the first province to invoke the notwithstanding clause on gender-related legislation. Saskatchewan used the provision in 2023 to support its own pronoun law, which remains before the courts..The clause, which allows governments to override certain Charter rights for up to five years, has also been used in Quebec to uphold its secularism law banning religious symbols for certain public-sector workers. Alberta recently intervened in support of Quebec in a Supreme Court case, calling the clause a “hard-fought and hard-won compromise” preserving provincial sovereignty.Prime Minister Mark Carney has said he opposes pre-emptive use of the clause.
