NDP 'combat misinformation' as legal experts say Smith's gender policies violate charter rights

The UCP is facing a new wave of criticism over proposed gender-based policies by the official oppositions and legal experts in Alberta.

In a video released by the NDP Friday, medical professionals, parents, athletes and members of the LGBTQ2S+ community decry the province's proposed policies aimed at trans and non-binary youth.

"It's really important that we start to combat the misinformation that is being promoted and that people understand the consequences of the cruel policies that [Smith] is really proposing," NDP leader Rachel Notley said at a press conference after the video was launched.

The policies were announced by Premier Danielle Smith in a social media video Feb. 1.

If passed, they would limit health-care access to gender-affirming care and bring sweeping changes to women's sports, and sexual education and pronoun policies in schools.

"For a party that really touts itself as cutting red tape, that sure is a lot of red tape," said High School teacher Sam Yamamoto in the video.

Yamamoto said Smith's policy requiring parents to opt in to sexual education at school is needless bureaucracy and will keep young people from getting a comprehensive sex education.

"Parents already have the power to opt out in the curriculum, they have that choice. So this, this just needlessly flips it on its head."

• 'Preserving kids' choices': Alberta premier says transgender rules coming in fall
• Alberta doctor says Smith's new gender policies based on 'ideology, lack 'medical expertise'
• 'It's terrifying': Advocates say new gender policies will hurt vulnerable youth

Reacting to Smith's proposed ban on trans-women in women's sports, Olympian and Albertan Jen Kish said the issue is "not this epidemic [Smith] is making out to be."

She pointed out that video cited by Smith in her announcement video featured cis-gendered female athlete Joanne Lagona.

"This premier justifying a policy off the back end of a video that she saw online that relates to a rugby player who she misidentified as transgender. This policy basically is nothing more than a comment section on Twitter," Kish said.

Legal questions arise

Since being announced, the policies have faced backlash from the LGBTQ2S+ community, as well as Alberta parents, medical experts and educators.

• Doctors call out contradictions in UCP gender policies, say policies create 'culture of fear'
• Edmonton pediatrician says Smith 'drumming up fear' with new policies on trans health care
• 'A direct attack': Alberta's trans health lead protests new guidelines

On Thursday, dozens of law professors and legal experts from the University of Alberta and University of Calgary joined critics to call on the province to reconsider.

In an open letter, the group said the restrictions aimed at trans and non-binary youth would violate their rights under the Canadian Charter of Rights and Freedoms.

"Maybe not all of the features of the government policy, but certainly some of the features, there will be strong arguments [they] have interfered with various Charter rights involving trans individuals," said Eric Adams, professor of law at the University of Alberta, on Friday.

Adams said additional challenges could be raised over other policies, including changes to sexual education in schools.

He said the UCP can either defend the policies as reasonable or invoke the Charter's notwithstanding clause.

Smith has hinted at using the notwithstanding clause, however a court decision in Saskatchewan suggests that may not be enough to put the matter to rest.

On Friday, a judge ruled a court challenge can go ahead against the Saskatchewan government's policy requiring parental consent for name and pronoun changes at school for students under 16 years old.

• 'Historic decision': Saskatchewan government says pronoun law may go to Supreme Court

"For a long time, I think there was just this idea that once the notwithstanding clause was used, that kind of was the end of it," Adams said. "But the more that governments use the notwithstanding clause, the more that there will be lawyers who want to argue that it's necessary to continue to to involve the courts."

In the open letter, Alberta legal experts said it would be wrong for the province to use the clause to force through legislation violating charter rights.

Smith's press secretary Sam Blackett responded to the video Friday, calling Notley's comments "harmful" and accusing her of "fear mongering."

Blackett did not respond to questions about whether the recent ruling in Saskatchewan would be factored into Smith's possible use of the notwithstanding clause against legal challenges in response to the legislation.

Instead, Blackett said Smith and the cabinet will work to put the policies in place by the end of 2024.

"Some of these policies will be implemented through regulation and ministerial orders; other [sic] may need legislation. In addition, some policy implementation will require consultation and feedback from various stakeholders," Blackett said in a statement. "The Premier and Cabinet will work together through this process with the goal of having these policies fully implemented by the end of the year."

With files from The Canadian Press and CTV News Edmonton's Chelan Skulski