Danielle Smith's notwithstanding clause triple play on trans youth rights

When a government invokes the notwithstanding clause, like Alberta’s just did on three transgender policy bills, it doesn’t need to specify which rights within the Charter of Rights and Freedoms its legislation needs an exemption from.

It could be any or all of the 10 Charter sections the constitution permits a provincial or federal government to act notwithstanding of. If that legislature invokes it, there’s no way anybody who feels that specific government policy violated their rights can get it overturned in court.

This broad exemption from Charter rights, used sparingly in Alberta over the 43 years of the notwithstanding clause’s existence, is being invoked for the second, third and fourth time within a month, following Premier Danielle Smith’s wielding of it to end the teachers' strike.

But Albertans can understand which Charter rights one of the laws the government’s restrictions on gender-affirming surgery and treatment for teens might have violated.

Albertans know because a Court of King’s Bench justice told us so in her ruling whose injunction blocked the ban from taking effect on gender dysphoric young people living in this province.

Justice Allison Kuntz delivered an interim ruling in favour of five gender diverse youth and the advocacy groups that challenged the law’s constitutionality, granting their injunction and concluding that a trial should be held on whether the government’s ban violated Section 7 (the right to life, liberty and security of the person) and Section 15 (equal protection and equal benefit of the law without discrimination).

Regarding the youths’ Section 7 rights, Kuntz wrote: “I find there is a serious issue to be tried in respect of whether the ban will have a serious and profound effect on the psychological integrity of transgender and gender diverse youth by preventing and/or unduly limiting their access to health care … and their having to experience the consequences of that limitation (e.g. high levels of depression/anxiety and irreversible changes to their bodies, discrimination), and by denying them autonomy over their bodies.”

On the equal protection section, the justice found “there is a serious issue to be tried in respect of whether the ban will adversely impact gender diverse youth in a manner that perpetuates disadvantage and prejudice by denying them access to medically indicated treatment that remains available to others, thereby prolonging or worsening gender dysphoria, distress, prejudice, and mental health challenges of gender diverse youth.”

That’s just the health law.

While the law restricting transgender women in women’s sport was not taken to court, another challenge was brought this fall against the restrictions on teens changing their pronouns in school.

That claim alleged the law violated Sections 7 and 15, as well as 12 (the right to be free from cruel and unusual treatment).

As these laws were introduced and then enacted — over the protests of medical professionals, teachers, 2SLGTBQ+ support groups and others — Smith was asked repeatedly about the constitutionality of her trans policy reforms.

Repeatedly, she expressed confidence the laws could withstand Charter challenges.

“The Charter allows for limits on rights that are reasonable in a free and democratic society. We think what we’re putting forward is reasonable,” Smith said when tabling the bills in October.