Alberta Premier Danielle Smith said using the whatever clause to overturn her government's transgender health restrictions is on the table as a “last resort.”
A provincial law would ban doctors from offering sex-affirming treatments such as puberty blockers and hormone therapy to under-16s. A surgical ban already in effect would prevent “over the top” gender-affirming surgeries for minors.
Speaking on her radio call-in show this weekend, Smith said she was willing to invoke the clause anyway, a measure that would allow governments to override certain Charter rights for up to five years.
“Because I feel strongly about protecting the right of children to preserve their fertility until they reach adulthood, we have to use the clause as a last resort, though.”
“I hope it doesn't come to that, but definitely, we will,” she said.
He explained Saturday that he didn't want to use the clause because doing so would suggest lawmakers weren't taking enough precautions.
“We think we've been very careful in our lawmaking.”
Smith, when asked whether she was willing to use the clause even though it was only recently on December 4, was non-committal, saying she did not want to prejudice the court.
She is instead expressing confidence that her government's bill will withstand a Charter challenge.
“We're going to argue that we're rational, proportionate and evidence-based, and we'll see how it goes in court,” she reiterated on Saturday.
Advocacy groups challenging the law
Two LGBTQ+ advocacy organizations, Egale Canada and the Alberta-based Skipping Stone Foundation, along with five families, are challenging the law in court.
Egel Canada legal director Bennett Jensen has previously said they will call for an injunction to protect young people's access to health care while a court decides whether the law is constitutional.
They argue in court documents that the change in health law violates gender diverse youth's Article 7 Charter right to protection of the person, their Article 12 right to be free from cruel and unusual treatment and their Article 15 right to equality.
See | Alberta's transgender law would prohibit minors from receiving certain types of gender-affirming care:
Alberta's transgender law would bar minors from receiving certain types of gender-affirmation procedures, require parents to be notified if children want to use a different name or pronoun in the classroom, and require parents to opt in before teaching their children about sex.
Lawyers for both sides are expected to make their first appearance in Alberta's Court of King's Bench on Monday in Calgary to advance the next procedural steps in the case.
The health bill is the first of three to pass debate in the legislature affecting transgender youth and adults in the province.
The Alberta Education Bill requires children under 16 to get parental consent if they want to change their name or pronouns at school.
A similar law governs school policy in Saskatchewan, where the government invoked the clause last year notwithstanding.
A third bill would mean transgender athletes would not be allowed to compete in women's amateur sports starting next fall, and would require sports organizations and schools to report eligibility complaints to the government.
Jensen said the bills and the months of debate that preceded them hurt transgender children and athletes.
He also raised Smith's point that banning puberty blockers prevents children from making irreversible life decisions.
“Puberty blockers do exactly what they want to protect for young people, they want to spend time and prevent irreversible changes,” he said.
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