Alberta’s government is invoking the Charter’s notwithstanding clause to block courts from striking down three controversial laws. The bills restrict gender-affirming care for minors, require parental consent for pronoun changes in schools and limit girls’ sports to those born female.

Premier Danielle Smith and Justice Minister Mickey Amery introduced Bill 9, the Protecting Alberta’s Children Statutes Amendment Act, Nov. 18. If passed, the legislation will amend the Health Statutes Amendment Act, the Education Amendment Act and the Fairness and Safety in Sport Act.

Smith said the move was necessary to protect children and families.

“Children deserve the opportunity to grow into adulthood before making life-altering decisions about their gender and fertility,” Smith said.

The notwithstanding clause will apply to three pieces of legislation.

Bill 26, the Health Statutes Amendment Act, 2024, bans gender reassignment surgery for children under 18 and puberty blockers or hormone therapy for minors under 16.

Bill 27, the Education Amendment Act, 2024, requires schools to get parental consent for students under 16 who wish to change names or pronouns, and for lessons on gender identity, sexual orientation or human sexuality.

Bill 29, the Fairness and Safety in Sport Act, limits participation in women’s and girls’ sports to those born female.

“By invoking the notwithstanding clause, we’re ensuring that laws safeguarding children’s health, education and safety cannot be undone — and that parents are fully involved in the major decisions affecting their children’s lives,” she said.

Smith said the decision was taken after hearing from families, teachers, athletes, coaches and young people, and consulting medical professionals.

“As a government, we have a responsibility to provide clarity, a responsibility to protect all children and youth and a responsibility to give parents, not institutions or courts, the primary role in life-changing decisions about their children,” she added.

The three laws were passed more than a year ago and two of them face constitutional court challenges.

The government said the notwithstanding clause ensures the laws cannot be struck down by courts or challenged under the Charter of Rights and Freedoms, the Alberta Bill of Rights, or the Alberta Human Rights Act.

“At this moment, we have three lawsuits working their way through the courts with one injunction in place. These lawsuits could take years to resolve, including possible appeals to the Supreme Court,” Smith said. “These delays are not acceptable to this government when children are in harm’s way.”

The legislation bans gender reassignment surgery for children under 18 and puberty blockers or hormone therapy for minors under 16 for gender transition.

It also requires schools to get parental consent for students under 16 to change names or pronouns and to teach content on gender identity, sexual orientation or human sexuality.

Finally, it limits participation in women’s and girls’ sports to athletes born female.

“This legislation is not about denying care. We cannot and will not take the risk of a child undergoing medical, hormonal or surgical interventions that could permanently limit or eliminate the choices they may want to make as an adult to have children of their own one day,” Smith said.

Smith and Amery said the invocation of the notwithstanding clause was necessary due to “high stakes” involved.

“We believe that this is a necessary measure to ensure that these laws stand without further court delay or uncertainty,” Amery said.

“We’ve heard from Albertans, and they expect us to deliver on our mandate to protect young people and their families. Will not apologize for putting our children first.”

The move drew immediate criticism from teachers and opposition parties. Jason Schilling, president of the Alberta Teachers’ Association, called the legislation “an extraordinary step” and “dangerous.”

In a press conference Nov. 19, he said it could undermine trust between students, parents and teachers. Schilling warned that mandatory parental notification and consent could put vulnerable students at risk.

“What we saw yesterday is not normal. It is not routine governance. It is a dangerous escalation by a government that has grown far too comfortable reaching for the notwithstanding clause as a political weapon,” he said.

“Yesterday, the Alberta government introduced legislation that once again invokes the notwithstanding clause, not once, but three times.”

Earlier in October, the province had passed legislation to end the ATA-led provincewide teachers’ strike and impose a new four-year collective agreement. It had also taken the rare step of invoking the notwithstanding clause to prevent legal challenges.

Schilling called the government’s recent move an attempt “to ensure that no parent, no teacher, no student or no court can challenge these decisions, even when they affect fundamental rights.”

He called the sections being shielded some of the most sensitive in education, requiring careful handling.

Instead of creating safety, Schilling said, the rules could put vulnerable students at risk and turn moments of trust into mandatory disclosure.

Using the notwithstanding clause to bypass courts, he said, undermines accountability and the balance of power meant to protect all Albertans.

“This government is in effect, saying that they know these new laws violate Albertans’ rights, and they want them to move ahead anyway,” he added.

At a rural roundtable Nov. 24, Amery defended the government’s approach when asked about concerns raised by the ATA, including risks to vulnerable students, especially in small communities.

Amery said the government believes parental involvement is essential and rejected the ATA’s warnings.

“We are always taking the position that every single child deserves love and support,” he said.

“I think the problem with the position that the ATA has taken is that it encourages a disconnect between parents and children. It encourages children to or teachers, for example, to withhold important information that I think parents all across this province very much would like to know.”

He said the government believes that parents want the best for their children and they can address any issues that their children are having in a much better way if they know them. Therefore the government will not back away from mandatory parental notification.

“We take a very firm position that parental notification is important. Every single parent wants to know what’s going on with their young children. And I, as a father of three, would certainly feel the same way,” he said. “So that is something that I think that we’re not prepared to bend on.”

Amery said the province is increasing support for youth, noting new mental health resources and $27 million in funding since 2019 for programs supporting LGBTQ+ young people.

“We simply think that parents have a role to play, and we certainly do not think that children of a younger age should be able to make medically irreversible and certainly life-changing decisions before their brains and bodies are fully developed,” Amery added.

The Opposition also condemned the measure. Former Calgary mayor and NDP leader Naheed Nenshi said the UCP government was using the notwithstanding clause to enforce potentially unconstitutional laws.

“Introduction of Bill 9 is a continued attack on the protected rights of all Albertans,” Nenshi said in a press release.

“Children across the province are now asking, ‘if they’re going after my trans friends now, will I be next?’ Indeed, all Albertans should be asking themselves ‘Who’s next?'” he said.

The notwithstanding clause allows provinces to override certain rights in the Charter for up to five years. Alberta has now invoked it twice in less than a month.

Bill 9 will be debated in the legislature in the coming weeks, while court challenges to the previous legislation are still underway.

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This article was reported and written by Shootin’ the Breeze’s Local Journalism Initiative reporter.

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