Transgender bill challenger dismayed by Smith’s openness to notwithstanding clause

EDMONTON — A lawyer fighting a new Alberta law affecting transgender youth says he’s disappointed Premier Danielle Smith will use the Charter’s notwithstanding clause if need be to shield the changes from legal challenge.

“It’s hard to choose the right words. It’s cynical, incredibly disturbing and an inappropriate action by a leader,” Bennett Jensen of Egale Canada said Monday in an interview.

Jensen said he had hoped Smith would accept the decision of a court if it found that her law violated Charter rights.

Jensen is the legal director for one of two organizations jointly challenging the law.

The legislation bans doctors from providing gender-affirming treatment such as puberty blockers and hormone therapy for those under 16 and prohibits gender-affirming “top” surgeries for minors.

For months, Smith dismissed the notwithstanding clause question as moot given she believed the new restrictions fall within provisions of the Charter and would withstand a legal challenge.

But on her Saturday radio show, Smith confirmed she would invoke the clause if necessary.

“Because I feel so strongly about protecting kids’ right to preserve their fertility until they’re adults, we would, as a last resort, have to use the notwithstanding clause,” she said.

“I hope it doesn’t come to that, but for sure, we would.”

The notwithstanding measure allows governments to override certain Charter rights for up to five years.

In a statement, NDP Leader Naheed Nenshi said it’s “sad” that Smith would be willing to go as far as using the notwithstanding clause.

“It’s very sad, and typical, that the premier is admitting that she doesn’t care about people’s fundamental rights and freedoms, and she will ram her plan through even if it violates people’s freedoms,” Nenshi said.

Chinenye Anokwuru, the press secretary for Alberta Justice Minister Mickey Amery, said in an email Monday that the government “carefully considers the rights of Albertans when drafting legislation.”

“We believe this legislation strikes an appropriate balance,” she said.

Egale and Skipping Stone Foundation are seeking an injunction to protect young people’s access to health care while the courts decide whether the law is constitutional.

The two organizations argue in court documents that changes to health law violate gender-diverse young people’s Section 7 Charter right to security of the person, their Section 12 right to be free from cruel and unusual treatment and their Section 15 right to equality.

The matter was originally scheduled to appear in court Monday but has been adjourned to case management to work out a schedule for the application.

The new law is one of three affecting transgender youth and adults in Alberta that received royal assent earlier this month.

An education bill would require children under 16 to have parental consent if they want to change their names or pronouns at school.

A similar law governs school policy in Saskatchewan, where the government invoked the notwithstanding clause last year.

A third bill means transgender athletes will no longer be allowed to compete in female amateur sports starting next fall, and sports organizations and schools would be required to report eligibility complaints to the government.

Jensen has said the bills and the months of debate that preceded them have already hurt transgender children and athletes.

This report by The Canadian Press was first published Dec. 16, 2024.

— with files from Bill Graveland in Calgary

Jack Farrell, The Canadian Press