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The Alberta government has introduced legislation that seeks to implement a notwithstanding clause to shield the package of bills from legal challenges affecting transgender youth and adults.
Prime Minister Danielle Smith said at a news conference on Monday that three ongoing legal challenges over gender policies in health and education could take years to resolve and would create too much uncertainty.
“This government does not invoke the notwithstanding clause unless the rates require it, in which case the rates cannot be higher,” Smith said Monday. “This is one of the most important actions our government will take during our time in office.”
At issue are three bills introduced by the United Conservative Party government last year that government officials say would protect the welfare of children and young people and increase parents' access to information and decision-making powers for children.
Critics slammed the law as rights violations based on misinformation that unfairly target transgender youth and adults, as well as women and girls in competitive sports.
House Bill 26, passed by the Legislature last year, prohibits youth under 16 from access gender-affirming treatments, including puberty blockers and hormone therapy. It also prohibits gender-related surgery on minors. The legislation was a first in Canada.
Both the Canadian Medical Association and a pair of advocacy organizations, 2SLGBTQ+, have challenged the law in court.
In June the judge issued an injunction suspending implementation of the law, saying the new rules could cause harm if passed before the court hears all the evidence.
Advocacy groups Egale and the Skipping Stone Foundation are also challenging the law, formerly known as Proposition 27, which would impose new requirements on how school personnel handle gender identity issues.
Staff must inform parents or guardians of students under 18 years of age who wish to be addressed by their name or other gender pronoun. Parents of students under 16 years of age must give school staff permission to use the student's chosen name and pronouns.
The bill also made Alberta the first province to require parents to include students in lessons about sexual health, gender identity or sexual orientation.
A leaked government memo is raising concerns that Alberta could use the clause to sidestep constitutional problems with laws affecting transgender people. Michelle Bellefontaine narrates.
The Secretary of Education must approve all resources and facilitators for lessons on sexual health, gender identity, or sexual orientation.
The third bill, the Fairness and Safety in Sports Act, would require anyone who competes in women's-only sporting events in Alberta to be assigned female at birth. Some organizations, including school boards, have adopted policies allowing people to anonymously challenge the gender identity of athletes.
In an emailed statement last week, an Egale spokesman said the organization had not filed a lawsuit against the sports bill but was determined to oppose the legislation.
“This is necessary now,” says the minister
Justice Minister Mickey Emery said that as evidence and policy on better standards of care for trans youth develops around the world, his government is trying to use the provision to “err on the side of caution” by restricting access to puberty blockers, hormones and surgery.
While the Prime Minister defended the moves, saying children deserve to have their fertility preserved until they are mature enough to make potentially life-changing decisions, doctors Experts say taking puberty blockers alone should not affect a person's long-term fertility.
In response to questions from reporters about why it was important to protect schools and sports laws from lawsuits, Emery said the government did not want to return to the legislature to repeatedly invoke the clause.
“Thisthis is necessary now. This should be a broad movement against all three of these actions,” he said.
If passed, the Alberta Child Welfare Charter Amendment Act, also called Bill 9, would protect these laws from Charter challenge for five years.
House Bill 9 was introduced in the Legislature on Tuesday.
It will also permanently suspend the enforcement of the Alberta Bill of Rights and the Alberta Human Rights Act.
Emery said that once the bill is passed, courts will not be able to strike down laws to which the provision applies. He said the proclamation of Bill 9 should stop all legal action against the bills.
Expecting the bill could be introduced in the legislature on Monday, advocates gathered outside the legislature in Edmonton to oppose the move.
Opposition calls move 'cowardly'
Trans woman Marnie Panas said the government's decision to preemptively apply the provision before the courts have had a chance to consider whether gender bills breach Charter rights is an attack on human rights and vulnerable young people.
“The justice system exists as a check and balance on political power,” Panas said. “When governments undermine this system to impose laws based on the ideology or whims of the leader, democracy begins to break down.”
This is the second time in three weeks that the Alberta government has resorted to the notwithstanding clause to stop a court from striking down its laws.
On October 27, the government introduced and passed the Back-to-School Act on the same day, which forced 51,000 locked-out teachers back to work, imposed a four-year contract on them, and used the clause to limit litigation.
The Alberta Teachers Association filed a court appeal against the bill, regardless of its provisions.
Alberta NDP Leader Naheed Nenshi said Monday the premier's move to suspend more rights is “cowardly” and alarming.
“We are taking away the right of parents and doctors to choose the best course of treatment for their children,” he said. “Where does it end?”
