Premier Danielle Smith has said her government may invoke the “notwithstanding clause” to defend three recently enacted laws that affect transgender people, citing concerns that court proceedings could take “years and years and years” before the rights of youth are settled. The laws in question oversee policies on pronouns in schools, female participation in sports, and restrictions on gender-affirming health care.
An internal government memo directs provincial legal staff to prepare legislation this fall so that the three laws may operate notwithstanding certain provisions of the Canadian Charter of Rights and Freedoms and the Alberta Bill of Rights. The proposal is expected to be taken to cabinet on October 21, 2025.
Premier Smith addressed this issue during her call-in radio program on September 13, stating she’s ready to defend the laws in court, but reiterated that invoking the clause may be necessary if litigation drags on. “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,” she said.
These three laws were passed in December of 2024:
Health Statutes Amendment Act, 2024 (Bill 26) bans certain gender-affirming treatments, including puberty blockers and hormone therapy for youths under the age of 16.
Education Amendment Act, 2024 (Bill 27) prescribes that students under 16 require parental consent for name or pronoun changes at school; ages 16-17 do not need consent but do require notification.
Fairness and Safety in Sport Act limits participation in female amateur sports to individuals assigned female at birth.
Advocacy groups and affected youth have already initiated legal challenges. Organizations such as Egale Canada and Skipping Stone, together with several young people and their families, have filed lawsuits arguing the laws are discriminatory. One of their core arguments is that denying gender-affirming care causes emotional harm and may lead to permanent physical changes discordant with a youth’s gender identity.
A temporary injunction was granted in June 2025 restricting application of the health care-limiting law, and Alberta is currently appealing that injunction.
Notwithstanding Clause: What It Means
The notwithstanding clause, also known as Section 33 of the Canadian Charter of Rights and Freedoms, allows provincial governments to pass laws that operate even if they violate certain Charter protections, for up to five years. It is a rare tool, used only in special circumstances.
Smith has described this clause as a possible “last resort,” noting that legal processes tend to be slow and may leave children affected in the meantime.
The proposal has drawn sharp responses from advocates, legal experts, and rights groups. For many, invoking the notwithstanding clause in this way is seen as an erosion of constitutional protections for transgender and gender-diverse youth. Egale called the move “an unconscionable attack on 2SLGBTQI people,” emphasizing the risks of sidelining established rights in the name of expediency.
Government officials say the laws reflect concern for minors and believe the policies are reasonable measures taken to protect youth. They contend that they are “balanced, proportionate and evidence-based,” and that proceeding via the notwithstanding clause may be necessary if the courts do not act swiftly.
As October 21 looms—when the cabinet will reportedly consider formal legislation invoking the clause—the stakes remain high both legally and socially. For many Albertans, this may be one of the most significant Charter-related battles in recent years.
