The Alberta government, in a sitting that stretched overnight into the early hours of Dec. 10, passed legislation invoking the notwithstanding clause to shield three gender-related laws from legal challenges.
Bill 9, also known as the Protecting Alberta’s Children Statutes Amendment Act, cleared third reading just after 2 a.m. on Dec. 10. The bill, tabled last month, uses the notwithstanding clause to uphold laws that prohibit gender transition surgeries for minors, require parental consent for pronoun changes at school, and limit participation in female sports to biological females.
Section 33 of the Charter of Rights, known as the notwithstanding clause, allows governments to override certain provisions of the Charter for a five-year term when passing legislation. With the passage of Bill 9, the three gender-related laws–Bill 26, Bill 27, and Bill 29, all passed last year–are protected from judicial review for five years, unless the legislature re-enacts the clause.
The Alberta government says its use of the notwithstanding clause, which it describes as a tool to balance power between the courts and elected officials, was necessary to protect children, uphold parental rights, and maintain fairness in sport.
“This isn’t about exclusion; it’s about protection. Our children deserve better,” Justice Minister Mickey Amery said at the legislature in the afternoon of Dec. 9.
“By passing Bill 9, we affirm that Alberta’s commitment remains absolutely strong and sound when it comes to family values, to child safety, and, of course, to true equality within this province.”
Speaking about the bill earlier in the evening, NDP MLA Kathleen Ganley said it was “offensive to the rule of law and to our entire democracy” that, with the passage of Bill 9, the provincial government has invoked the notwithstanding clause four times during this fall sitting. The province in late October used the clause to end a three-week-long, provincewide teachers’ strike.
“It was put in the Constitution to be used judiciously, to be used rarely, to be used only in exceptional circumstances,” Ganley told the house.
3 Bills
Bill 26, the Health Statutes Amendment Act, 2024, prohibits gender reassignment surgery for children under 18 and the provision of puberty blockers and hormone treatments for gender reassignment to children under 16. The province says the law preserves children’s right to make “life-altering decisions.”
The law, which was blocked from being implemented by an injunction in June, faced several legal challenges. One challenge, from LGBT advocacy groups, says the law denies “medically necessary care” to “gender-diverse youth,” while another, from the Canadian Medical Association, said it violates doctors’ rights to freedom of conscience.
Bill 27, the Education Amendment Act, 2024, requires schools to get parental consent before any student under 16 changes their name or pronouns. It also mandates opt-in parental consent for children to participate in lessons on sexual orientation or gender identity. The province says the law upholds parents’ rights by providing more transparency, clarity, and consistency in their child’s education.
The law was being challenged by LGBT advocacy groups Egale Canada and the Skipping Stone Foundation, which said that it removes protections for youth to “safely express their gender identity” and limits educators’ ability to exercise professional judgment in supporting students.
Bill 29, the Fairness and Safety in Sport Act, requires that governing bodies of amateur competitive sports in Alberta limit participation in women’s and girls’ sports to those who were born as biological females. The province says the measure is necessary to ensure participants can compete fairly and safely.
The law hadn’t been legally challenged, but Egale Canada had signalled plans to do so, saying the legislation denies transgender youth “access to inclusive sport” and isolates them from their peers.
During question period on Dec. 9, Premier Danielle Smith reiterated that her government aimed to protect youth from potentially life-altering medical treatment decisions.
“We know that the pathway for children to be medicalized early does not stand up to scrutiny. It has not been tested, and we’re not going to do medical experiments on children,” she said. “We believe that children need to get of an age where they can understand if they’re going to make decisions that affect their ability to have children of their own one day.”
Opposition NDP Leader Naheed Nenshi has said Albertans should be alarmed by Smith’s use of the notwithstanding clause, which he argues is an admission that gender-related laws are unconstitutional and an example of rights and freedoms being overridden.
The Canadian Press contributed to this report.
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