The Alberta government may use the notwithstanding clause to protect new controversial laws, including those requiring parents to be notified if their child wishes to use new, gender-related preferred names or pronouns at school.
In November 2024, LawNow published Student Charter Rights in the Wake of Bill 27, an article about Bill 27: Education Amendment Act, 2024. At that time, Bill 27 was only a proposed law. The article questioned whether it would become law and, if it did, whether someone would challenge it in court for violating students’ rights under the Canadian Charter of Rights and Freedoms (the Charter). This article provides an update on what has happened in the past year.
Bill 27 received Royal Assent on December 5, 2024 and came into effect on September 1, 2025. As a result, Alberta’s Education Act now contains a parental consent provision (see section 33.2), like the controversial parental consent provision that Saskatchewan added to The Education Act, 1995 in October 2023.
- For a student under the age of 16, parents must be notified and give consent before teachers and school staff can refer to the student by their new, gender-related preferred name or pronouns.
- For a student who is 16 or 17, parents must be notified but do not have to give consent.
Unlike Saskatchewan’s parental consent provision, section 33.2 of Alberta’s Education Act does not invoke the Charter’s notwithstanding clause.
The notwithstanding clause
The notwithstanding clause, found in section 33 of the Charter, allows Parliament or a provincial legislature to declare in a statute that the statute, or a provision in the statute, shall operate notwithstanding the rights and freedoms guaranteed by sections 2 and 7-15 of the Charter. When Parliament or a provincial legislature invokes this clause, it removes the courts’ power to invalidate the statute/provision for violating certain Charter rights and freedoms – that is, for being unconstitutional.
Explained another way: When a statute clearly states that it, or one of its provisions, shall be law even though its violates certain Charter rights and freedoms, the statute effectively overrides those Charter rights and freedoms.
A government’s use of the notwithstanding clause expires after five years unless it renews the declaration (see subsections 33(3)-(4) of the Charter).
A constitutional challenge of Alberta’s new rules
The Alberta Legislature did not invoke the notwithstanding clause when it created section 33.2 of the Education Act. This left open the opportunity for someone to challenge the provision in court for being unconstitutional. If the court agrees, it can declare the provision invalid (of no force and effect).
On September 3, 2025, just two days after the provision came into effect, Egale Canada and Skipping Stone filed a challenge against section 33.2 in the Court of King’s Bench of Alberta. The challenge alleges that section 33.2 unreasonably and unjustifiably limits the Charter rights of gender diverse students in Alberta. More specifically, it argues that the provision violates the following rights of gender diverse students:
- not to be deprived of security of the person (section 7),
- not to be subjected to cruel and unusual treatment (section 12), and
- to equality (section 15).
The challengers are asking the Court to declare section 33.2 unconstitutional for violating the Charter and invalid. A court hearing date has yet to be set for the challenge.
In mid-September, Premier Danielle Smith said her government is considering using the notwithstanding clause to protect section 33.2 of the Education Act and other new and controversial provisions. The other provisions:
- require parental notification and consent for school instruction on gender identity, sexual orientation or human sexuality (Education Act, section 58.11),
- require participants in girls’ or women’s sports to confirm that the sex they were assigned at birth is female (Fairness and Safety in Sport Act and its Regulation), and
- severely restrict access to gender-affirming care for youth (Health Professions Act, sections 1.91-1.93).
A familiar position for the Alberta Legislature
The Alberta Legislature was in a similar position in the late 1990s following a landmark Supreme Court of Canada (SCC) decision in Vriend v Alberta. The SCC decided that not including sexual orientation as a prohibited ground of discrimination in Alberta’s human rights law violated section 15 of the Charter (equality rights). As a remedy, the SCC read the words “sexual orientation” into Alberta’s statute, making the statute protect against discrimination based on sexual orientation.
Individuals and groups advocated for and against the Alberta Legislature invoking the notwithstanding clause to nullify the SCC decision. Then Premier Ralph Klein ultimately decided against invoking the clause. As a result, the SCC’s remedy stood and Alberta’s human rights statute was read as protecting individuals from discrimination based on their sexual orientation. In 2015, the Legislature changed Alberta’s human rights statute to also protect individuals from discrimination based on their gender identity and gender expression.
Public advocacy for and against invoking the notwithstanding clause
Today, individuals and groups are advocating for and against the Alberta Legislature invoking the notwithstanding clause to protect section 33.2 of the Education Act and the other new and controversial provisions.
Egale Canada’s Executive Director has said the Alberta Legislature’s use of the notwithstanding clause would be “an unconscionable attack on 2SLGBTQI people” and “all Canadians.” And the Executive Director of the Canadian Civil Liberties Association has said, “By trying to shield these laws from constitutional scrutiny, the government of Alberta is deliberately undermining the rights and dignity of trans people and [setting] a dangerous precedent for all Canadians.” Other 2SLGBTQ+ advocacy groups and civil liberties organizations, as well as doctors and teachers, have also been protesting against the Alberta Legislature’s potential use of the notwithstanding clause.
On the other hand, the Executive Director of the Alberta Parents’ Union has said there is nothing unseemly about the Alberta government considering using the notwithstanding clause to protect provisions that he believes protect parents’ rights. Other parental rights advocacy and socially conservative groups have also expressed their support of the provisions. And a poll conducted by Leger in 2023 suggested that many Canadians support their province using the notwithstanding clause to protect provisions like section 33.2 of Alberta’s Education Act.
If the Alberta Legislature ends up invoking the notwithstanding clause to protect section 33.2 of the Education Act and the other new and controversial provisions, its use of the clause will expire after five years unless renewed. It is also possible that a new government formed after the next provincial election in 2027 will repeal the controversial provisions.
To let the Alberta government know how you feel about its potential use of the notwithstanding clause, you can contact your Member of the Legislative Assembly of Alberta (MLA) and/or relevant Ministers (Justice, Sport, Education and Childcare, Children and Family Services, Health Services, and Status of Women). You can find your MLA and how to contact them using this Elections Alberta tool. And you can find the Ministers and their contact information using this Government of Alberta list.
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DISCLAIMER The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
About Jennifer Taylor
