A leaked memo indicates the Alberta government will invoke the Charter's notwithstanding clause to amend three laws affecting transgender individuals, a topic Premier Danielle Smith had avoided for over a year.

An internal Justice Department document obtained by the Canadian Press reveals a September 10 directive from Smith's office for other departments to gather information to invoke the notwithstanding clause.

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The memo from Deputy Justice Minister Malcolm Lavoie indicates the premier's office has ordered legislation for the fall session. This will amend existing laws, allowing them to operate despite the Canadian Charter of Rights and Freedoms and the Alberta Bill of Rights.

"This legislative initiative is highly sensitive and should be approached with the utmost confidentiality," Lavoie wrote in the memo.

.@SheilaGunnReid asked Premier Smith if she'll follow Sask. and use the notwithstanding clause to enshrine the UCP's new parental rights legislation.

She's hopeful about not invoking the clause, and that courts will see it as a "reasonable" change.https://t.co/vuu2u10GNz pic.twitter.com/F6UdMpggT1

— Rebel News (@RebelNewsOnline) November 2, 2024

Officials are to prepare a legal background for Smith by October 21, when the proposal goes to cabinet, two days before the house resumes.

Heather Jenkins, Justice spokesperson, stated Thursday that Alberta's government will continue to protect children's safety and well-being using all legal and constitutional means, including the notwithstanding clause if deemed necessary.

It would impact three laws to regulate student name/pronoun changes, bar transgender girls from female sports, and restrict ‘gender-affirming’ healthcare.

Smith has not commented on using the notwithstanding clause, though she previously stated parents have a right to protect their "child's innocence" from "issues of sexuality."

Her remarks follow Saskatchewan, who invoked the clause in 2023 to protect parental rights in all school environments.

Saskatchewan invoked the notwithstanding clause to table legislation that protects parental rights in all school environments.

READ MORE: https://t.co/s8ak0ifZHl pic.twitter.com/FZTDbpZdvt

— Rebel News (@RebelNewsOnline) October 12, 2023

Helen Kennedy of Egale Canada called the use of the notwithstanding clause "an unconscionable attack on 2SLGBTQI people, and a horrific example of state-sponsored transphobia," criticizing the laws as discriminatory.

"When our governments abuse their power by invoking the notwithstanding clause to limit the protections of the Charter of Rights and Freedoms, it's not just an attack on queer and trans communities, it is an attack on all Canadians," Kennedy told the Canadian Press in a statement.

The notwithstanding clause, a rarely used provision, allows governments to override certain Charter sections for up to five years. Smith considered it a last resort for transgender health restrictions.

Egale Canada launched challenges against the laws in late-2024. Premier Smith is confident they will withstand a Charter challenge, arguing they are "reasonable, proportionate and evidence-based."

Please see my statement on Canada’s intervention before the Supreme Court. pic.twitter.com/8c6QBbfbjS

— Sean Fraser (@SeanFraserMP) September 18, 2025

Ottawa sought Supreme Court limits on the notwithstanding clause, which Alberta defends as safeguarding provincial parliamentary sovereignty. Prime Minister Mark Carney opposes its pre-emptive use.

Smith expressed “extreme disappointment” on the federal government's appeal, deeming it an attack on provincial sovereignty and a threat to national unity and constitutional principles. She urged immediate withdrawal of the appeal.

Saskatchewan’s pronoun law, upheld by the notwithstanding clause, faces a constitutional challenge under Charter section 12, which prohibits cruel and unusual treatment.

A 2023 Angus Reid poll reported that only 14% of Albertans and 10% of Saskatchewanians do not want to be informed if their child wants to change names or pronouns. 

“The notwithstanding clause is part of the Constitution of Canada and allows federal and provincial governments to enact legislation that operates notwithstanding certain provisions of the Charter,” reads a 2023 Government of Saskatchewan statement.

A 2023 Leger poll found 46% of Canadians support provinces using the notwithstanding clause for parental consent on 'gender identity' matters. 63% want schools to inform them if their children change pronouns or gender.