Taking Stock of Alberta’s Human Rights Landscape in Light of Recent Uses of the Notwithstanding Clause

On December 9, 2025, the Alberta Legislative Assembly successfully passed Bill 9 on third reading,^[1] invoking the notwithstanding clause in an effort to thwart Charter challenges against three statutes that affect the rights of transgender individuals in the province: the Health Statutes Amendment Act, 2024 (No. 2)^[2] (previously Bill 26), which prohibits access to gender-affirming medical treatments for gender diverse youth under 16; the Education Amendment Act, 2024^[3] (previously Bill 27), which requires parental notification and consent for youth to use their chosen names and pronouns in schools; and the Fairness and Safety in Sport Act^[4] (previously Bill 29), which requires gender verification for participation in girls’ and women’s sports.

This capped off an unprecedented spate of recent section 33 invocations by the Alberta government following the clause’s use in the Back to School Act^[5] (previously Bill 2) at the end of October 2025, which forced striking teachers in the province back to work. The public backlash against Bill 2’s invocation — the first use of the clause in Alberta in 25 years — came swift and strong, but the reaction to Bill 9 has been much more muted, despite concerns over the law’s potentially catastrophic impacts on trans youth in the province. Many of these impacts flow from the rules preventing gender-diverse youth from accessing gender-affirming medical care, which are widely known to adversely impact mental health, contributing to gender dysmorphia, anxiety and depression, and high risk of self-harm and suicide. Laws that require parental notification and consent have similar effects,^[6] forcing youth into situations where they are either unable to live as their authentic selves, or are forcibly outed to their families, exposing those in unwelcoming or abusive family dynamics to family violence. These impacts, among many others, directly implicate fundamental rights like the right to life, liberty and security of the person, the right to be free from cruel and unusual punishment, and the right to equality — all of which are now without proper legal effect due to the government’s use of the notwithstanding clause.

The intention for this piece is not to explain what the notwithstanding clause is, why it’s being used, whether it can or should have been used, or even why we have it — all important questions though they may be. Rather, I want to take these recent developments as an opportunity to look at the state of human rights in Alberta and ask: what human rights protections remain available for vulnerable trans youth in the province?

Our Starting Point: The Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms^[7] enshrines various human rights into Canada’s constitutional order. These rights include fundamental freedoms like freedom of religion, freedom of expression, freedom of assembly, and freedom of association under section 2; the right to life, liberty, and security of the person under section 7; and an equality right under section 15, which guarantees the right to equal protection and equal benefit of the law without discrimination based on listed characteristics such as race, age, or sex (this right also offers protection against discrimination on the basis of “analogous” grounds like sexual orientation). As part of the Constitution, the rights set out in the Charter are part of the country’s “supreme law,” which means that all other laws in Canada must be consistent with them.

These rights are not without limits, however. Section 1 provides that Charter rights can be lawfully limited so long as the limit is “reasonable” and can be “demonstrably justified in a free and democratic society.” To determine whether a limit is reasonable and justified, a court will apply a legal test asking whether the law has a pressing and substantial objective, whether the law is rationally connected to that objective, whether the law is minimally impairing, and whether the negative effects of the law do not outweigh its benefits.

But separate from section 1 is section 33, which allows Parliament and provincial legislatures to declare that a law operates “notwithstanding” certain Charter rights.^[8] The notwithstanding clause effectively insulates the chosen law from the normal legal effect of certain Charter rights, meaning a court cannot strike the law down for violating the rights set out in section 2 and sections 7-15. While the suspension is temporary (lasting up to five years),^[9] it can be re-invoked an unlimited number of times if desired.^[10]

When the notwithstanding clause is invoked and claims under sections 2 and 7-15 of the Charter are no longer available, alternative legal protections have to be relied upon. In some cases, sections of the Charter that are not subject to the notwithstanding clause can be used (such as, perhaps, section 28’s gender equality guarantee^[11]), but oftentimes rights protections will have to come from outside the Charter — the downside being that those rights will not have constitutional force.

Human Rights Legislation

The next applicable legal framework providing rights protection in Alberta is the province’s human rights framework, which comprises several pieces of legislation.

Alberta Human Rights Act

Alberta has had some form of human rights legislation in place since 1966, beginning with An Act respecting Human Rights.^[12] In 1972, the Lougheed government enacted what we refer to today as the Alberta Human Rights Act (“HRA”), the province’s primary human rights statute.^[13] In contrast to the 1966 Act that it repealed and replaced, the HRA has a special “primacy,” requiring all other provincial statutes to conform with the rights it guarantees.^[14] This “quasi-constitutional” status recognizes the special nature and purpose of human rights codes in protecting human dignity.^[15]

Unlike the Charter, which guarantees a range of fundamental rights, the HRA is focused on equality rights alone, protecting individuals against discrimination in five areas of public life for matters under provincial jurisdiction: 1) employment;^[16] 2) tenancy;^[17] 3) provision of public services, accommodation, and facilities (such as education and health care);^[18] 4) publications, notices, and signs;^[19] and 5) membership in a trade union.^[20] Also unlike the Charter, which protects equality on both enumerated and analogous grounds, the HRA only protects against discrimination on set grounds, including “gender,” “gender identity,” and “gender expression.” The scope of the HRA is also different from the Charter: while the Charter applies only to the federal and provincial governments (and certain non-governmental bodies, depending on whether they perform government functions or are significantly controlled by government), the HRA protects Albertans from discriminatory actions by individuals, companies and businesses, organizations, and the provincial government. Complaints for violations of the HRA are made to the Alberta Human Rights Commission, which can refer cases to the Human Rights Tribunal for adjudication. The Tribunal has the authority to order a broad range of remedies for successful complaints, including declaring Alberta legislation to be inoperative where it violates the HRA.

The Alberta Bill of Rights

In addition to the HRA, Alberta also has the Alberta Bill of Rights (“Bill of Rights”).^[21] Introduced in the same year as the HRA, the Bill of Rights is the provincial equivalent of the Canadian Bill of Rights that was introduced in 1960 — with both statutes predating the Charter.

Like the Charter, and unlike the HRA, the Bill of Rights protects a range of fundamental freedoms, including the right to liberty and security of the person,^[22] the right to equality,^[23] freedom of speech and expression,^[24] and freedom of assembly and association.^[25] 

The Bill of Rights has gone through several iterations over the years. In the most recent amendment in 2024, the right of an individual “not to be subjected to, or coerced into receiving, medical care, medical treatment or a medical procedure” without their consent^[26] was added. While this is an intensely controversial addition, the promise of this right in the specific context of Bill 26 is an interesting question to consider: can this right inform the right of trans youth to access gender affirming care? Put another way, can the right to not be coerced into medical treatment be extended to a situation where treatment is legally being denied? It may be possible to characterize the denial of access to gender affirming medical care as coercively imposing “treatment” — especially when we consider the consequence of denying that medical care is to force children to undergo puberty, which is not reversible. While it’s hard to predict whether this argument would have any traction in court, it’s an interesting interpretation to consider when weighing the rights that are at issue in this case.

Do These Statutes Offer Protection in the Case of Bill 9?

Ordinarily, when recourse to Charter rights is denied by the invocation of the notwithstanding clause, human rights legislation acts as an alternate source of rights that individuals can rely on. The sticking point here, however, is that both the HRA and the Bill of Rights also have notwithstanding clauses,^[27] both of which were invoked in Bill 9. Whereas the notwithstanding clause in the Charter is limited to select sections and applicable for a limited period of time, the notwithstanding clauses in both the HRA and the Bill of Rights do not have similar restrictions. Rather, Bill 9 allows the three statutes to remain in force notwithstanding all the rights set out in the HRA and the Bill of Rights for an indefinite period of time. With all three notwithstanding clauses invoked, trans individuals in Alberta are being denied legal remedies for the violations of their rights under the Charter, the HRA, and the Bill of Rights.

Admittedly, this isn’t an unusual practice; Quebec, who has also been prolific in invoking the Charter’s notwithstanding clause in recent years, typically enacts statutes notwithstanding its own human rights statute^[28] in addition to section 33. The consequence here, however, is that the invocation of all three notwithstanding clauses effectively creates a legal vacuum for those individuals whose rights are being denied. Such action clearly demonstrates that the provincial government’s issue is not with Charter rights specifically, but with human rights more generally — even those that are recognized and protected under Alberta law.

What About International Human Rights Law?

Canada is a state party to 7 of the 9 core UN international human rights treaties, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Elimination of All Forms of Discrimination against Women, and the Convention on the Rights of the Child (“CRC”).^[29] As a party to these international conventions, Canada has legal obligations to protect and uphold the rights articulated in those instruments.

International instruments have to be incorporated into Canadian domestic law before they are binding, but our federalist system can make the implementation of international human rights instruments somewhat complicated, as some rights like those relating to education and health care touch on provincial heads of power. While the federal government binds the country to human rights obligations, it is up to the provincial governments to ensure that the human rights guarantees that are within their jurisdictions are implemented and fulfilled. Practically, provinces cannot opt out of these human rights obligations — to do so would put the Canadian state in violation of its international commitments.

Bill 9 in no way seeks to opt out of international human rights agreements, but another statute recently passed by the provincial government may allow this to happen. November 2025 saw the coming into force of the International Agreements Act^[30] (previously Bill 1). This statute provides that an “international agreement” (defined as an agreement entered into by the federal government and a foreign country or an “international organization,”^[31] like the UN) that deals with matters “not exclusively within federal jurisdiction” is not binding on the Government of Alberta or part of the domestic law of Alberta unless that agreement is implemented through legislation passed by the provincial legislature.^[32] This statute repeals and replaces the International Trade and Investment Agreements Implementation Act,^[33] which restricted its focus to international trade agreements, but the broad language of the new Act indicates that it covers all international agreements touching on provincial jurisdiction — including human rights conventions. The new Act is also retroactive, applying to international agreements that were entered into before the Act came into force,^[34] and consequently encompassing all of the UN human rights conventions Canada has signed.^[35]

While the government’s intentions for the use of the International Agreements Act remain to be seen, the ultimate consequences of the Act in the human rights context is especially uncertain, and questions are now raised about the applicability of human rights instruments like the CRC which have not been explicitly incorporated into provincial legislation.

What’s Left?

Between the invocation of the three notwithstanding clauses in the Charter, the HRA, and the Bill of Rights, trans youth in the province have been left with little or no human rights protections. The fact that the Alberta Legislative Assembly passed Bill 9 to strip trans Albertans of their rights only one day before Human Rights Day is painfully ironic, if not obviously telling of the government’s stance towards this community.

Initially, an injunction against Bill 26’s ban on gender-affirming medical care remained in place after it was granted in June 2025, but this has since been lifted due to the invocation of the Charter’s notwithstanding clause. This raises the question: with key human rights laws effectively overridden by the government, and with the initial injunction on Bill 26 lifted, what options remain for challenging the three statutes that have been impacted by Bill 9?

A number of options still remain. For example, Egale Canada and Skipping Stone, who together applied for the now-lifted injunction as part of their challenge to Bill 26, are set to amend their challenge on new constitutional grounds, bypassing the notwithstanding clause to argue that the Act is ultra vires the provincial legislature insofar as it strays into the federal government’s exclusive jurisdiction to pass criminal laws.

Amended constitutional arguments aside, it is also possible that declaratory relief may be available, even if the statutes can’t be struck down as unconstitutional by virtue of the Charter’s notwithstanding clause. The Saskatchewan Court of Appeal held that such relief is available in its August 2025 decision in the UR Pride case,^[36] which dealt with the invocation of section 33 in a Saskatchewan statute similar to Bill 27. This decision, however, is in stark contrast to the position taken by the Quebec Court of Appeal on declaratory relief in its World Sikh Organization decision.^[37] Which approach will win out will ultimately be determined by the SCC when it considers the appeals of both cases later this year.

Although it is perhaps the most contentious debate currently surrounding the notwithstanding clause, the availability of declaratory relief is also the most important question to answer and, if it is available, would be an incredibly significant remedy, as it has the potential to shape the discourse around the clause and the laws to which it is attached. Providing declaratory relief may not change the constitutional status of the law, but it plays an important public educational role, informing people of the state of Charter rights in our country. This is an incredibly valuable and meaningful thing, even if it wouldn’t directly alter the legal force of laws that invoke the notwithstanding clause.

The real significance of declaratory relief rests in its potential to support the public in demanding political accountability when the notwithstanding clause is invoked. Despite this piece’s focus on human rights instruments, the reality is that human rights don’t begin or end with a legal framework. Rather, human rights are by their very nature a function of our relationships towards one another as fellow humans, and ultimately, any discussion we can have — with our governments, with our courts, and with each other — about ongoing threats to rights is invaluable in ensuring their protection.

Beyond legal responses, then, democratic responses also remain an option. There are important social institutions — academia and the media among them — that can raise their voices and speak out in support of trans Albertans (as Skate Canada did in mid-December). Individually, citizens can engage their democratic rights by protesting, voting against the government in the next election, or, in the interim, engaging in recall petitions (even if unsuccessful). All of these actions signal to the UCP government that trammeling the rights of vulnerable youth will not be tolerated. On a more personal front, it is also open to people to have difficult conversations with neighbours, friends, and family to confront transphobia and help those with blind spots see how harmful these laws are. These are, of course, only a few political actions that can be taken. In the end, democratic engagement can take many forms.

That being said, we have to recognize the challenges that exist for political responses in Alberta in the present moment. In a political climate where power seems to rest with how well one can pander to party-lines that are increasingly shifting to the far-right, any attempt by the public to push back more often than not falls on deaf ears — or is confronted by those who simply refuse to engage. But it’s important in moments like these to take the broader view of the fight for human rights: oftentimes, the goal is not to shift the minds of opponents, but is to show up in solidarity for those whose rights are on the line, in whatever capacity is possible.

***

Kira Davidson is the Public Legal Education Coordinator with the Centre for Constitutional Studies at the University of Alberta

[1] Bill 9, Protecting Alberta’s Children Statutes Amendment Act, 2025, 2nd Sess, 31st Leg, Alberta, 2025 (assented to 11 December 2025), SA 2025 c 24.

[2] Health Statutes Amendment Act, 2024 (No. 2), SA 2024, c 16.

[3] Education Amendment Act, 2024, SA 2024, c 14.

[4] Fairness and Safety in Sport Act, SA 2024, c F-2.5.

[5] Back to School Act, SA 2025, c B-0.5.

[6] Florence Ashley refers to these as “blanket veto and disclosure laws”: see Florence Ashley, “Parental Rights Over Transgender Youth: Furthering a Pressing and Substantial Objective?” (2024) 62:1 Alta Law Rev 87.

[7] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

[8] Ibid, s 33(1).

[9] Ibid, s 33(3).

[10] Ibid, s 33(4).

[11] I say “perhaps” because this is a point that has been put into debate by parties challenging Quebec’s Bill 21, although it has been rejected by the Quebec Court of Appeal: see World Sikh Organization of Canada v Attorney General of Quebec, 2024 QCCA 254 at paras 416-506 [World Sikh Organization]. The ability of section 28 to act as a “shield” against section 33 will very likely be considered by the SCC in the upcoming appeal in March 2026.

[12] An Act respecting Human Rights, SA 1966, c 39.

[13] Alberta Human Rights Act, RSA 2000, c A-25.5 [HRA]. The HRA was originally enacted as The Individual’s Rights Protection Act. The title was changed to the Human Rights, Citizenship and Multiculturalism Act in 1996, and then changed again to its current title in 2009. For a brief history of the development of Alberta’s human rights legislation, see Alberta Human Rights Commission, “Alberta’s Human Rights History”, online: <https://albertahumanrights.ab.ca/what-are-human-rights/about-human-rights/alberta-s-human-rights-history/>.

[14] Ibid. See HRA, supra note 11, s 1(1).

[15] See Ont Human Rights Comm v Simpson-Sears, 1985 CanLII 18 (SCC) at para 12.

[16] HRA, supra note 11, ss 6-8.

[17] Ibid, s 5(1).

[18] Ibid, s 4.

[19] Ibid, s 3(1).

[20] Ibid, s 9.

[21] Alberta Bill of Rights, RSA 2000, s A-14.

[22] Ibid, s 1(1)(a).

[23] Ibid, s 1(1)(b).

[24] Ibid, s 1(1)(d).

[25] Ibid, s 1(1)(e).

[26] Ibid, s 1(1)(h).

[27] See HRA, supra note 11, s 1(1); Alberta Bill of Rights, supra note 19, s 2.1

[28] Charter of Human Rights and Freedoms, CQLR c C-12.

[29] Of the 9 core human rights instruments, Canada is not a party to the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and the International Convention for the Protection of all Persons from Enforced Disappearance. Canada’s ratification status of all UN instruments can be explored here: <https://indicators.ohchr.org/>.

[30] International Agreements Act, SA 2025, C I-3.8.

[31] Ibid, s 1.

[32] Ibid, s 3.

[33] International Trade and Investment Agreements Implementation Act, RSA 2000, c I-7.

[34] International Agreements Act, supra note 28, s 2.

[35] The last human rights instrument signed by Canada was the Convention on the Rights of Persons with Disabilities in 2010.

[36] Saskatchewan (Minister of Education) v UR Pride Centre for Sexuality and Gender Diversity, 2025 SKCA 74.

[37] See World Sikh Organization, supra note 10 at paras 332-372.