Alberta Premier uses emergency powers to block child sex change surgery, override courts

Section 33 of the Canadian Constitution’s Charter of Rights – the notwithstanding clause – allows the federal government or provincial governments to override decisions made by Canadian courts, up to and including the Supreme Court of Canada.

Smith also used the notwithstanding clause to force Alberta’s teachers back to the classrooms.

Bill 9, the Protecting Alberta’s Children Statutes Amendment Act, would change the Health Statutes Amendment Act, 2024, the Education Amendment Act, 2024, and the Fairness and Safety in Sport Act.

At a news conference on Tuesday, Smith explained that “Bill 9 will invoke the Canadian Charter's notwithstanding clause and to amend and uphold three critical pieces of legislation without further court delay or uncertainty. This government does not turn to the notwithstanding clause unless the stakes warrant it, and in this case, the stakes could not be higher.”

“This is one of the most consequential actions our government will take during our time in office, these measures reflect the views of an overwhelming majority of Albertans, and it is our responsibility to make sure that they are not overturned,” she continued.

“This is not a hypothetical discussion. This suite of legislation is in active litigation right now. At this moment, we have three lawsuits working their way through the courts with one injunction in place, these lawsuits could take years to resolve, including possible appeals to the Supreme Court. These delays are not acceptable to this government when children are in harm's way.”

Alberta NDP Leader Naheed Nenshi called Smith’s decision to invoke the notwithstanding clause an “awful thing” and said, “this premier shreds any credibility she has as a libertarian … this government says they don't care about your fundamental human rights. It's disgusting,” adding that “Albertans deserves so much better than that.”

In February 2024, Alberta Premier Danielle Smith announced a new series of changes to the province's rules regarding "gender-affirming" care and athletes who identify as members of the other sex.

Smith revealed that under the new rules, anyone under 17 will not be able to access "top and bottom gender reassignment surgeries," and those under 15 years will be prevented from receiving puberty blockers and hormone therapies aimed at interfering with their natural sexual development. Women's sports will also be protected by barring biological males who claim to be females from competing.

When she invoked the notwithstanding clause to end the teacher’s strike, Smith told The Post Millennial, “We knew we had to do something. So we knew we had to legislate. That was our only option. And we chose the option of using the notwithstanding clause, just because in this situation, it's very unique. We were dealing with a province wide strike with 61 separate school boards.”