The Alberta government is contemplating the use of the notwithstanding clause to safeguard three laws concerning transgender minors. This consideration comes as the Supreme Court of Canada reviews potential limitations on the clause's application. A memo from Premier Danielle Smith's office instructs the justice ministry to prepare for invoking the clause to protect these laws from judicial challenges.

The memo, issued by Deputy Minister of Justice Malcolm Lavoie, states, "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 three laws in question include a ban on medical treatments such as puberty blockers and hormone therapy for minors under 16, a requirement for parental consent for students to change their names or pronouns at school, and a prohibition on transgender athletes aged 12 and older from competing in female amateur sports. Currently, the first law is not in effect due to an injunction from Alberta’s Court of King’s Bench, following a Charter challenge from Egale Canada, the Skipping Stone Foundation, and five transgender youth.

Unlike Saskatchewan, which preemptively invoked the notwithstanding clause to protect its school pronoun legislation, Alberta has been cautious about using the clause before a court ruling. The notwithstanding clause allows governments to enact laws that may contravene the Charter, but it must be renewed every five years. The federal government has argued that the clause should not produce permanent effects and that courts should retain the ability to assess whether a law violates rights, even if the clause is invoked.

Premier Smith expressed her disappointment with the federal government's intervention in the Supreme Court, stating, "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."

Eric Adams, a constitutional law professor at the University of Alberta, commented on the situation, saying he would be surprised if the Supreme Court imposes limitations on the use of the notwithstanding clause. He noted, "The idea 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."

The Supreme Court's decision could significantly influence how Alberta and other provinces utilize the notwithstanding clause. In previous cases, such as Ford v. Quebec in 1988, the court did not impose restrictions on the preemptive use of the clause. However, the current legal landscape may change if the court decides to address whether it can make constitutional judgments despite the invocation of the clause.

The Alberta government maintains that there should be no judicial review of the invocation of the notwithstanding clause, arguing that it would improperly involve the judiciary in political matters. The province asserts that the use of the clause should include public debate and engagement, culminating in elections to hold the government accountable.