Notwithstanding clause won’t stop court challenges of Alberta trans laws: groups

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This article was published 19/09/2025 (382 days ago), so information in it may no longer be current.

EDMONTON – Doctors and LGBTQ+ advocacy groups challenging Alberta laws affecting transgender people say they aren’t backing down after learning the province plans to invoke the Charter’s notwithstanding clause.

A leaked internal memo from Premier Danielle Smith’s government, obtained by The Canadian Press, says it plans to apply the clause this fall to its three laws that police school pronouns, female sports and gender-affirming health care.

Two of those laws are being challenged by LGBTQ+ advocacy groups Egale and Skipping Stone. In one lawsuit challenging the ban on puberty blockers and hormone treatment for those under 16, the groups are joined by five gender-diverse youth and their families. 

Helen Kennedy, executive director of Egale, said the fallout from the laws would be tragic for those young people, who are frightened and unsure of the future.

“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,” she said.

“How do you counter Goliath?”

She said Egale will regroup with affected families to decide how to approach the next phase of litigation.

“I assure you, we will be back in court on this,” Kennedy said.

The notwithstanding clause allows governments to override certain sections of the Charter of Rights and Freedoms for up to five years.

The health restriction law is currently subject to a temporary court-ordered injunction Alberta is appealing, arguing the injunction was premature.

The government’s memo says it plans is to bring the notwithstanding clause 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 Canadian Medical Association and three Alberta-based doctors are also challenging the health law in a separate case launched in May. They argue the law violates a doctor’s right to freedom of conscience.

The association said Friday nothing has changed with its legal challenge. 

The group’s president, Dr. Margot Burnell, urged the province to back off on using the notwithstanding clause to enact legislation that directly interferes in patient care.

“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,” Burnell said in a statement.

“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.”

The premier did not speak with reporters at an event Friday in Calgary. When asked to comment on the plan to invoke the notwithstanding clause, Smith said to bring questions to her next media availability.

Smith has long downplayed a need to use the notwithstanding clause, although last December she said it could be used as a last resort to shield the health restrictions law.

In June, she said she was confident the government had a “solid case.”

“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,” she said at the time.

Alberta Opposition NDP Leader Naheed Nenshi said Friday that Smith is showing she believes her laws are unconstitutional “and she doesn’t care.”

“Although she calls herself ‘the most freedom-loving politician in Canada,’ from the moment she took power, she has systematically stripped away rights and freedoms from people she doesn’t like or disagrees with,” Nenshi said in a statement.

“Albertans have every right to be alarmed by this and ask themselves, ‘Who’s next?’”

The Canadian Civil Liberties Association said it’s completely unacceptable for the government to resort to using the clause. 

“The notwithstanding clause was never meant to be a blunt political tool to override Charter rights,” executive director Howard Sapers said in a statement. 

“By trying to shield these laws from constitutional scrutiny, the government of Alberta is deliberately undermining the rights and dignity of trans people and sets a dangerous precedent for all Canadians.”

Alberta is not alone in using the clause.

Saskatchewan Premier Scott Moe’s government used it 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, judges said 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, which prohibits public sector workers in positions of authority from wearing religious symbols on the job.

Alberta supports Quebec’s right to invoke the clause and, describing it in a court filing as a “hard-fought and hard-won compromise” during constitutional negotiations that preserves the provinces’ parliamentary sovereignty. 

The federal government argues the court should set limits on provincial use of the clause.

Moe on Friday said any restriction of its use would be a “significant infringement on the autonomy of provinces and their elected legislatures.”

This report by The Canadian Press was first published Sept. 19, 2025.

— With files from Jack Farrell in Edmonton and Matthew Scace in Calgary