A leaked memo suggests the government is preparing to enact Section 33 of the Canadian Charter to “protect kids” this October…
Premier Danielle Smith is willing to use the notwithstanding clause (Section 33 of the Canadian Charter of Rights and Freedoms) to “protect kids.” A leaked memo sent to The Canadian Press revealed Smith’s intention to use the clause as it amends three transgender laws.
“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,” the memo from the deputy minister of justice read.
Smith spoke about the memo this past weekend on the Corus Radio call-in show Your Province. Your Premier. She reiterated her government will do “whatever it takes” in relation to the issues.
Why is Alberta considering the notwithstanding clause?
The use of the clause seems to be in relation to a series of court challenges, specifically against the Health Statutes Amendment Act (Bill 26) targeting gender affirming care.
“I’m prepared to go to court and battle it out. I think we need to,” she said on Corus Radio. “But if it turns out that the court process may take years and years and years to resolve, then we may have to take that measure in order to protect kids.”
Egale Canada, Skipping Stone and five gender diverse youth (supported by their parents) have initiated litigation against Bill 26. The case, Egale Canada et al. v. His Majesty The King In Right Of Alberta et al., was granted an injunction on June 27, 2025. This blocks Bill 26 as the constitutional challenge proceeds.
There is also a challenge by The Canadian Medical Association (CMA) and three Alberta doctors. The group argues that the bill “violates a doctor’s right to freedom of conscience.”
What are the three trans laws in question?
Three bills targeting the trans community were introduced in the Alberta legislature last year. The bills have come with a series of criticism and legal challenges.
The main law is the Health Statutes Amendment Act (Bill 26). The law prohibits gender-affirming hormonal treatments and gender-affirming surgeries for those under 18.
The Education Amendment Act (Bill 27) came into effect this school year. The act requires those under 16 to have approved parental consent for any name or pronoun change in the classroom. For those 16 and older, schools will have to notify parents. Advocates say the move makes schools less inclusive and welcoming for 2SLGBTQI+ students.
As of this month, transgender athletes 12 and older are banned from female-only amateur sports under the Fairness and Safety in Sport Act (Bill 29). School divisions have sent eligibility forms asking parents to confirm their child’s gender. The new rules will not apply to trans athletes competing in male-only amateur sports.
What is the notwithstanding clause?
The notwithstanding clause “permits Parliament or the legislature of a province to adopt legislation to override certain rights and freedoms for a limited period…” The ‘limited period’ is defined as up to five years. The addition to the Canadian Charter was introduced by Pierre Trudeau’s government.
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