Smith noncommittal on overriding Charter as court challenge looms over trans bills

EDMONTON — Alberta Premier Danielle Smith says she doesn’t believe she’ll need to invoke the Charter’s notwithstanding clause to shield her government’s three transgender bills from legal challenges.

The bills passed third and final reading in the legislature this week and are set to become law. Two LGBTQ+ advocate organizations — Egale Canada and Skipping Stone Foundation — say they plan to file a legal challenge.

It’s anticipated the challenge will be on grounds the bills violate Charter rights, including equality rights.

“I don’t want to prejudge the court,” Smith told reporters at an unrelated news conference Wednesday when asked if she would use the notwithstanding clause.

“We will put forward a robust case — that this (legislation) is reasonable in a free, democratic society, that it’s evidence based, and that we’re protecting children and their right to be able to make adult decisions as adults.”

One 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 measure that allows governments to override certain Charter rights for up to five years.

The Alberta bills go further, encompassing a range of topics from sex education to transgender surgery and sports.

One bill compels parents to opt-in for their children to receive lessons in school on sexuality, sexual orientation and gender identity. Outside resources or presentations would also need to be pre-approved by the Education ministry, unless they’re part of a religious school program.

Physicians would be banned from offering gender-affirming treatment, such as puberty blockers and hormone therapy, for those under 16. There would be a prohibition on gender-affirming “top” surgeries for minors.

Transgender athletes would no longer be allowed to compete in female amateur sports, and sports organizations would be required to report eligibility complaints to the government.

Bennett Jensen, Egale’s legal director, said the bills and the months of debate that preceded them have already hurt transgender children and athletes.

Jensen said when political leaders discriminate against one segment of the population, it communicates that there is something wrong with that identity.

“The consequences of having your identity debated in the public sphere for months is devastating,” Jensen said in an interview.

“Anxiety is way up, depression is way up, bullying is way up, and this is without anything (legal) being in effect.”

Jensen 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.

The Canadian Civil Liberties Association said it may seek to be an intervener in the legal challenge.

“This is a dark time for freedom in Alberta,” Harini Sivalingam, director of the association’s equality program, said in a statement.

“The passage of these intrusive laws will severely erode the liberty of individuals and families to make deeply personal decisions about their lives.”

NDP Leader Naheed Nenshi said he expects some of the United Conservative Party government’s legislation will be deemed unconstitutional by the courts and wondered why Smith believes her bill is different.

“(Saskatchewan Premier) Scott Moe knew it was unconstitutional and used the notwithstanding clause pre-emptively,” Nenshi told reporters.

This report by The Canadian Press was first published Dec. 4, 2024.

Lisa Johnson, The Canadian Press