Alberta Premier Smith willing to use the notwithstanding clause on trans health bill

Alberta Premier Danielle Smith says using the notwithstanding clause to shield her government’s transgender health restrictions is on the table as a “last resort.”

A provincial law will ban doctors from providing gender-affirming treatment such as puberty blockers and hormone therapy for those under 16. A surgical prohibition already in effect will halt gender-affirming “top” surgeries for minors.

Speaking on her radio call-in show this weekend, Smith said she is willing to invoke the notwithstanding clause, a measure that allows governments to override certain Charter rights for up to five years.

“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.”

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

She explained Saturday that she does not want to use the clause because doing so suggests to her that lawmakers haven’t been careful enough.

“We feel we’ve been very careful in our law crafting.”

Smith, when asked if she was willing to use the notwithstanding clause as recently as Dec. 4, was noncommittal, saying she didn’t want to prejudge the courts.

She has instead consistently expressed faith that her government’s bill will withstand a Charter challenge.

“We’re going to argue that we’re being reasonable, proportionate and evidence-based, and we’ll see how it goes in court,” she reiterated Saturday.

It comes as two LGBTQ+ advocacy organizations, Egale Canada and Alberta-based Skipping Stone Foundation, along with five families, are challenging the law in court.

Bennett Jensen, legal director at Egale Canada, has previously said they will call for an injunction to protect young people’s access to health care while the courts decide whether the law is constitutional.

They 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.

Lawyers on both sides are expected to appear for the first time at a Court of King’s Bench of Alberta hearing scheduled for Monday in Calgary to hash out the next procedural steps in the case.

The health bill is the first of a trio that’s passed debate in the legislature that will affect transgender youth and adults in the province.

An Alberta 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.

He also took issue with Smith’s assertion that banning puberty blockers prevents children from making irreversible life decisions.

“Puberty blockers do exactly what she is claiming to be wanting to protect for young people, which is afford them time and prevent irreversible changes,” he said.