Alberta Invokes Notwithstanding Clause to Shield Transgender Bills from Legal Challenges

Alberta Government Utilizes Notwithstanding Clause

The Alberta government has moved to invoke the notwithstanding clause of the Canadian Charter of Rights and Freedoms, the Alberta Bill of Rights, and the Alberta Human Rights Act, aiming to shield three pieces of legislation impacting transgender youth and adults from potential court challenges. The move was announced by Premier Danielle Smith on Monday, November 17, 2025, with the relevant legislation, Bill 9, the Protecting Alberta's Children Statutes Amendment Act, tabled in the provincial legislature on Tuesday, November 18, 2025.

Premier Smith stated that the invocation of the clause is a necessary step to protect the 'health and well-being' of children and to prevent lengthy court delays that could span 'years and years.' This marks the second time in less than a month that the Smith government has applied the notwithstanding clause to a bill.

Key Legislation Protected by the Clause

The three pieces of legislation that the notwithstanding clause is intended to protect address distinct areas concerning transgender individuals:

• Gender-Affirming Care: This includes a ban on gender reassignment surgery for individuals under 18 years old and a prohibition on puberty blockers and hormone therapy for youth under 16 years old.
• School Policies: New rules require parental consent for students under 16 to change their names or pronouns at school. For students aged 16 and 17, parents must be notified. Additionally, parental opt-in is mandated for any classroom instruction related to sexual health, gender identity, or sexual orientation.
• Sports Participation: Policies will require that female-only competitive sports in Alberta are restricted to individuals assigned female at birth.

These policies were initially introduced by Premier Smith in early 2024 and have since faced significant legal scrutiny and public debate.

The Role of the Notwithstanding Clause

The notwithstanding clause is a rarely used constitutional provision that grants provincial or federal governments the power to override certain sections of the Charter of Rights and Freedoms for a renewable period of five years. By invoking this clause, the Alberta government aims to prevent courts from striking down these laws on the grounds that they violate Charter rights, thereby fast-tracking their implementation and bypassing ongoing legal challenges.

Justice Minister Mickey Amery emphasized that the government is prepared to use 'every single legal and constitutional tool' to ensure the protection of children's health and well-being.

Widespread Opposition and Criticism

The government's decision has drawn immediate and strong condemnation from various groups. Naheed Nenshi, Leader of the Official Opposition (Alberta NDP), criticized the move as 'authoritarian governing' and a 'continued attack on the protected rights of all Albertans.'

The Canadian Medical Association (CMA) expressed deep disappointment, stating that the government is 'interfering in the clinical care of patients' and 'infringing on physicians' freedom of conscience.' Advocacy groups such as Egale Canada and the Skipping Stone Foundation, which are actively challenging some of the legislation in court, called the government's actions 'cynical and chilling' and a 'broad attack against members of 2SLGBTQI communities.' Amnesty International Canada also condemned the Premier's threat to use the clause, calling it 'cruel and unnecessary.'

Conclusion

The invocation of the notwithstanding clause by the Alberta government marks a significant development in the ongoing debate surrounding transgender rights and provincial autonomy in Canada. While the government asserts its necessity for child protection and legal efficiency, critics argue it undermines fundamental rights and bypasses judicial oversight, setting the stage for continued legal and political contention in the province.