EDMONTON - Alberta Premier Danielle Smith has instructed officials to invoke the Charter's notwithstanding clause to amend three laws affecting transgender individuals, according to a leaked government memo. The internal document, sent on September 10 by the justice department, requests other departments to gather information in line with Smith's directive.

The memo, authored by Malcolm Lavoie, deputy minister of justice, states, "As you are aware, the premier’s office has directed that legislation be developed for the fall legislative session to amend the following pieces of legislation to permit each to operate notwithstanding the Canadian Charter of Rights and Freedoms and the Alberta Bill of Rights." It emphasizes the sensitive nature of this legislative initiative, urging confidentiality.

The document outlines plans to prepare background information on legal implications and other options. It indicates that Smith will be briefed before the proposal is presented to the cabinet on October 21, just before the legislature resumes with a throne speech.

Justice spokesperson Heather Jenkins commented on the memo, stating, "Alberta’s government will continue to vigorously protect the safety and well-being of children using all available legal and constitutional means at our disposal, including the notwithstanding clause should our government deem it necessary."

The three laws in question, introduced last year, include regulations for students changing their names or pronouns in schools, a ban on transgender girls participating in female amateur sports, and restrictions on gender-affirming health care for youth. Advocacy groups, including Egale and Skipping Stone, are currently challenging the school pronoun law and the health care restrictions in court, labeling them as discriminatory.

Helen Kennedy, executive director of Egale Canada, criticized the use of the notwithstanding clause, calling it "an unconscionable attack on 2SLGBTQI people, and a horrific example of state-sponsored transphobia." She added, "When our governments abuse their power by invoking the notwithstanding clause to limit the protections of the Charter of Rights and Freedoms, it’s not just an attack on queer and trans communities, it is an attack on all Canadians."

The notwithstanding clause allows governments to override certain sections of the Charter for up to five years. Smith has previously indicated that this measure was a last resort regarding the government's transgender health restrictions. She expressed confidence that the law could withstand a Charter challenge, stating, "We're going to argue that we're being reasonable, proportionate and evidence-based, and we'll see how it goes in court."

Legal challenges to the laws are ongoing. A law prohibiting doctors from providing gender-affirming treatments, such as puberty blockers and hormone therapy for youth under 16, is not yet in effect due to a temporary court injunction issued in June. Alberta appealed this injunction in August. The education law, which requires parental consent for students under 16 to change their names or pronouns, took effect at the start of the school year. Students aged 16 and 17 do not need consent, but parents must be notified.

The third law, currently in effect, prevents transgender athletes aged 12 and older from competing in female amateur sports in Alberta. Following the start of the school year, some school divisions sent forms to parents to confirm their children’s sex assigned at birth for participation on girls' teams. Recently, Smith directed Sport Minister Andrew Boitchenko to utilize all "legal and constitutional means necessary" to ensure the sports law is fully implemented.

Alberta is not the only province considering the notwithstanding clause. Saskatchewan Premier Scott Moe's government invoked the clause in 2023 for a similar school pronoun law, which is also facing legal challenges. A Saskatchewan court recently ruled that the notwithstanding clause prevents it from striking down that legislation, although it can still issue a declaratory ruling on potential constitutional violations.

Additionally, Alberta has filed arguments in a significant Supreme Court of Canada case regarding Quebec’s secularism law, which restricts public sector workers in authority positions from wearing religious symbols. Alberta supports Quebec's stance, asserting that the notwithstanding clause is a "hard-fought and hard-won compromise" from constitutional negotiations that preserves provincial parliamentary sovereignty. Prime Minister Mark Carney has expressed opposition to the pre-emptive use of the notwithstanding clause.