Danielle Smith prepares to use the notwithstanding clause to shield Alberta's transgender youth laws

“It is our responsibility to make sure that they are not overturned,” she added.

The second use of the notwithstanding clause in a month will again pit Smith’s socially conservative base against those in the prairie province who argue that her government has wielded the clause, a legislative sledgehammer designed to be used sparingly, as a means of shutting down debate on a contentious issue. This new application was laid out in legislation tabled Tuesday by Smith’s majority government. 

The limits passed last fall are some of the most restrictive changes to policies for transgender youth in the country. New rules banned puberty blockers for those younger than 16, gender-reassignment surgery for those under 18 and required parental consent when a student under 16 wished to use a different name or pronoun at school.

Amateur sport organizations were also required to limit participation in women’s and girls’ sports to athletes who were born female. The Alberta government also said Tuesday that major amateur sporting events seeking provincial grants — to the tune of a total of $2.5 million a year — must comply with these rules. 

The notwithstanding clause allows governments to sidestep certain charter rights when they feel that doing so is in the best interests of the public. Although designed to be used infrequently, more provinces have begun to lean on it in recent years and for a greater range of issues.

The Alberta government maintains that health decisions of this magnitude — meaning taking hormones or accessing surgery — must wait until a child becomes an adult. (In the case of hormones that means 16, or 18 for surgery.) But when it comes to pronoun usage, “parental choice is absolutely paramount,” Smith says.

The changes were promptly challenged in court by doctors and LGBTQ groups, and in June, a judge granted an injunction against the ban on gender-affirming care. In her ruling, Court of King’s Bench Justice Allision G. Kuntz found that the rules would cause “irreparable harm” by causing gender-diverse youth to experience permanent changes to their body.

She also said that “singling out health care for gender diverse youth and making it subject to government control” reinforces the “discrimination and prejudice” they already face. The Alberta government has appealed that decision.

This new use of the notwithstanding clause should bring court proceedings to a halt, Smith said. (This has not been the case in other jurisdictions. In Saskatchewan, lawmakers used the notwithstanding clause to override challenges to a similar law preventing students 16 and under from changing their names or pronouns at school without parental permission, but the Supreme Court of Canada has nonetheless agreed to hear an appeal.)

According to an online Leger poll from February, Albertans are roughly in step with the rest of Canada when it comes to their views on health care for transgender youth. 

About 42 per cent of Albertans surveyed said puberty blockers and hormone therapy should not be permitted for youth 15 and under, while 36 per cent said it should be allowed on a case-by-case basis or with parental permission.

Not quite half said gender affirming surgeries should not be permitted for those 17 and under. (Gender affirming surgeries below the waist are not permitted anywhere in Canada for those under 18.) The survey sampled 2,439 Canadians, 1,000 of those from Alberta. While an opt-in poll cannot be assigned a margin of error, for comparison purposes, a random sample of this size would have a margin of error of +/-1.98%, 19 times out of 20.

Less than a month ago, in late October, the Alberta government invoked the notwithstanding clause to force striking teachers across the province back to work, in a move that required them to accept an agreement they’d already rejected. It also drew criticism from those who said the province had moved too quickly to circumvent the right of teachers to strike.

Speaking Monday, Justice Minister Mickey Amery defended the use of the notwithstanding clause, arguing that Alberta only attempted to use it a handful of times: in the early 2000s (when Ralph Klein tried to limit the definition of marriage to opposite sex only) and then twice this year.

“I would argue that it’s not used frequently,” he said. “In fact, we very, very much carefully assess each and every time that we need to use this.”

Smith pointed to a recent Supreme Court decision in which a mandatory minimum sentence for child pornography was struck down as evidence that the courts are out of step with Canadian and Albertan values.

“If the courts are going to behave irresponsibly, then they should expect that legislatures are going to respond.”