The Alberta government is preparing to use the Charter’s notwithstanding clause against three pieces of legislation that protect transgender rights. Organizations such as Egale and Skipping Stone are arguing against the legality of these laws. These politically driven rules undermine school choice of pronouns, participation in female sports, and access to life-saving, gender-affirming health care. That was before an internal memo from Premier Danielle Smith’s office was recently leaked, revealing that officials were planning to invoke the clause this fall.
The notwithstanding clause permits governments to bypass certain provisions of the Charter of Rights and Freedoms for a duration of up to five years. Environmentalists and other critics of the proposed legislative maneuver are sounding the alarm over its possible impacts. They fear it will negatively impact the rights and welfare of transgender youth in Alberta. The new policy has ignited a firestorm of controversy, conflicting opinion, and threatened action by practitioners, advocacy groups, and elected leaders.
Internal Memo and Legislative Timeline
According to the leaked memo from Premier Smith’s office, the Alberta government aims to present the proposal to cabinet on October 21, ahead of the legislature’s scheduled reopening with a throne speech two days later. The memo further points out plans to collect additional information regarding the legal ramifications of using the notwithstanding clause. In addition, it looks at other possible approaches worth pursuing.
While these arguments play out in the court of public opinion, Premier Smith has a history of boasting about Alberta’s legal prowess on the laws in question. She stated, “We want to battle this out and the way you do that is you go to the higher levels of court. If we were to impose the notwithstanding clause, everything would stop.”
This statement belies the reality of a long-standing, intentional, manufactured tension created by the provincial government with advocacy groups seeking to challenge the laws. Thousands of impacted youth and families are suing the government over the recent prohibition of puberty blockers and hormone treatments for people under 16. Only time will tell what the ultimate result of this tussle will be.
Voices from Advocacy Groups and Healthcare Professionals
Dr. Margot Burnell, president of Doctors of BC, has called on the Alberta government to reverse its plan. She argued that if the notwithstanding clause was invoked, it would be a historic violation of the physician-patient relationship.
“It represents an unprecedented government intrusion into the physician-patient relationship that requires doctors to disregard clinical guidelines, the needs of patients and their own conscience,” – Dr. Margot Burnell
Helen Kennedy, executive director of Egale, made her opposition clear and unequivocal. She cautioned that the repercussions of these laws will have tragic effects on the lives of young people.
“Knowing now what the implications are of your own government targeting you and your ability to access basic services, like health care, and targeting and attacking your identity — it’s really shocking,” – Helen Kennedy
Kennedy assured that Egale would pursue further legal action if necessary, stating, “I assure you, we will be back in court on this.”
Government’s Justification and Public Reaction
Proponents of the government insist that the notwithstanding clause is needed to protect parental rights and keep children safe. This position is under intense fire from advocacy organizations and health care providers. Heather Jenkins, a government spokesperson, conveyed that invoking this clause would help ensure that laws protecting parental authority in education remain effective in Alberta.
“We would see that as appropriate, a use of the notwithstanding clause to make sure that this wildly popular and necessary law protecting the rights of parents stays in effect in Alberta,” – Heather Jenkins
As numerous critics have pointed out, these regulations unfairly penalize at-risk young people. As one very concerned parent said, when the government goes out and causes harm to children instead of protecting them.
“My child didn’t set out to win championship medals and go on a team that didn’t match their sex at birth. [The government] is creating harm for kids. The … [Fairness and Safety in Sport] Act is anything but safe.”
Eldyka, another advocate for transgender rights, expressed deep concern over the message being sent to young people:
“I can’t imagine being a child or a youth or a teenager who wakes up hearing that their government, that their leaders are prepared to say that your rights are not protected as much as the other kid next to you in this school,” – Eldyka
