Alberta considers use of notwithstanding clause to protect new transgender laws, while top court considers limitations

As the Supreme Court of Canada considers limits on the use of the notwithstanding clause, the Alberta government is considering invoking the clause to preserve three pieces of legislation affecting transgender minors in the province.

A memo from Alberta Premier Danielle Smith’s office directs the Alberta justice ministry to develop plans for the use of the notwithstanding clause to protect the controversial legislation from being struck down by the courts, The Canadian Press reported Thursday.

“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,” says the memo from Malcolm Lavoie, deputy minister of justice.

However, the use of the notwithstanding clause could soon be subject to new guidance from Canada’s top court, which could impact the way Alberta implements section 33 on its three pieces of legislation.

The first law, which is currently facing a Charter challenge from Egale Canada, the Skipping Stone Foundation and five transgender youth, seeks to ban doctors from providing medical treatment such as puberty blockers and hormone therapy for those under the age of 16 and imposed a blanket ban on gender reassignment surgery for minors in the province. It is currently not operative, subject to an injunction issued by Alberta’s Court of King’s Bench.

The second law requires students to receive parental consent to change their names or pronouns at school, and the third law bars transgender athletes aged 12 and older from competing in female amateur sports in Alberta.

The Alberta government has long considered the notwithstanding clause as an option of last resort to protect its legislation, and unlike Saskatchewan, which preemptively used the notwithstanding clause to shield its school pronoun legislation, Alberta has been reluctant to use the clause before the courts have actually ruled.

At present, the notwithstanding clause may be renewed indefinitely and there are no restrictions on a government invoking the clause preemptively.

In court filings related to a constitutional challenge to Quebec’s secularism legislation, the Canadian government asked the Supreme Court to consider temporal limitations on the use of the notwithstanding clause, which has been invoked to keep Quebec’s secularism law on the books. The clause, which allows governments to implement otherwise unconstitutional legislation, must be re-invoked every five years.

The federal government argues that the notwithstanding clause “cannot be used in a way that produces permanent effects” — that is to say, renewed indefinitely — that the notwithstanding clause cannot be applied to rights in several sections of the constitution, and that courts should still be able to say whether a policy violates rights, even if it cannot strike such legislation down because of the invocation of the notwithstanding clause.

“The constitutional limits of the s. 33 power preclude it from being used to distort or annihilate the rights and freedoms guaranteed by the Charter,” reads the submission.

Smith, writing on X on Thursday, urged the federal government to withdraw its intervention before the Supreme Court.

“We are extremely disappointed that the Federal Government would risk national unity and a foundational principle of our constitution by attempting to attack the use of the notwithstanding clause by a sovereign provincial government,” Smith wrote.

The Notwithstanding Clause is integral to the Canadian Charter of Rights and Freedoms and an unassailable provincial constitutional right.While the Alberta government does not support the content of Quebec’s Bill 21, we stand shoulder to shoulder with Quebec’s constitutional… https://t.co/3sKnFhL82Z

— Danielle Smith (@ABDanielleSmith) September 19, 2025

Eric Adams, a constitutional law professor at the University of Alberta, said he would be surprised if the Supreme Court of Canada sets limitations on the use of s. 33 of the Constitution.

“The idea that that there’s some kind of internal limit on the number of times that the notwithstanding clause can be deployed in a row, that’s a relatively novel legal argument,” said Adams in an interview. “I think there’s going to be strong pressure on the court not to go outside the bounds of the words of the provision itself.”

If, however, the Supreme Court places any sorts of limitations on the use of the notwithstanding clause, it could limit the way that Alberta — and other provinces — are able to use it. While the government of Canada’s factum does not specifically address the issue of preemptively using the notwithstanding clause, Prime Minister Mark Carney has said in the past that he’s uncomfortable with it being used in advance of a court decision.

In 1988, in the Ford v. Quebec case, Adams said that the Supreme Court declined to place prohibitions on the preemptive use of the notwithstanding clause. “If the court is going to change views on that, and I would be surprised if they do, it’ll have to be that they overrule themselves,” Adams said.

Where the court is more likely to make a decision is on the question of whether a court can make a constitutional judgment in spite of the invocation of the notwithstanding clause. In the case of Saskatchewan’s pronoun case, the Saskatchewan Court of Appeal concluded that the court could still weigh in on the constitutionality of the province’s Parents’ Bill of Rights, even if it could not be struck down because the notwithstanding clause had been used.

“Just like a government might use the notwithstanding clause after a court says that a law is unconstitutional, there’s nothing very different from that scenario than from a scenario in which the government uses it preemptively, but then the court says, ‘OK, but, but we still have the capacity to explain the way in which this might limit rights,'” said Adams.

While the Alberta Court of Appeal has not faced a similar question, since Alberta’s transgender laws are still in the early stages of their court battles, whichever way the Supreme Court rules could affect what the courts have to say.

In its filings with the Supreme Court, lawyers for the Alberta government argue that there can be no judicial review of the invocation of the notwithstanding clause and that there is “no legal basis for a court to issue what is in effect an advisory ruling on what the Constitution would require in the absence of s. 33.”

The scenario that would emerge here is one in which a government may have shielded its legislation with the notwithstanding clause but the court nevertheless says that in the absence of the notwithstanding clause, it would be invalid. The Canadian government argues that such information would “inform the evaluation, by voters and their representatives, of the justification of re-enacting a s. 33 declaration,” but the Alberta government argues that this would inappropriately pull the judiciary into the political sphere.

“A court proceeding on this basis would effectively become an interest group vying for the attention of voters in a political forum,” Alberta argues. The province also says that the use of the notwithstanding clause includes “public debate in the assembly along with broader public discussion and engagement,” which culminates in an election to hold the government accountable.

“It should not be assumed that this alternative process … will necessarily lead to unacceptable or inferior outcomes when compared to judicial review,” the province says.

National Post with additional reporting from The Canadian Press

• Ottawa and the provinces prepare to battle in constitutional combat over notwithstanding clause
• Ottawa argues for limits on use of notwithstanding clause in challenge to Quebec secularism law

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