Alberta to invoke notwithstanding clause to shield 3 transgender bills from court challenges

The Alberta government has tabled legislation that seeks to invoke the notwithstanding clause to shield a suite of bills from legal challenges that affects transgender youth and adults.

Premier Danielle Smith said at a news conference on Monday that three ongoing legal challenges to gender policies in health care and education could take years to resolve and create too much uncertainty.

“This government does not turn to the notwithstanding clause unless the stakes warrant it, and in this case, the stakes could not be higher,” Smith said Monday, before the bill was introduced Tuesday.

“This is one of the most consequential actions our government will take during our time in office.”

In question are three pieces of legislation the United Conservative Party government introduced last year that government officials say protect the well-being of children and youth and increase parent access to information and decision-making power over children.

Critics have panned the legislation as violations of rights based on misinformation that unfairly target transgender youth and adults, as well as women and girls in competitive sports.

Bill 26, passed by the legislature last year, prevents youth under 16 from accessing gender-affirming treatments, including puberty blockers and hormone therapy. It also prohibits gender surgery for minors. The legislation was a Canadian first.

Both the Canadian Medical Association and a pair of 2SLGBTQ+ advocacy organizations have challenged the legislation in court.

In June, a judge granted an injunction pausing the law’s implementation, saying the new rules could be harmful if enacted before the court heard all evidence.

Advocacy groups Egale and the Skipping Stone Foundation are also challenging legislation formerly known as Bill 27, which imposed new requirements on how school staff handle gender identity issues.

Staff must tell the parents or guardians of any students under 18 who wish to be addressed by a name or pronoun of a different gender identity. Parents of students under 16 must give permission for school staff to use the student’s chosen name and pronouns.

The bill also made Alberta the first province where parents must opt students into lessons about sexual health, gender identity or sexual orientation.

The education minister must approve all resources and classroom presenters for lessons on sexual health, gender identity or sexual orientation.

A third bill, the Fairness and Safety in Sport Act, requires anyone participating in female-only competitive sports in Alberta to have been assigned female at birth. Some organizations, including school boards, have adopted policies that allow people to anonymously challenge the gender identity of athletes.