Advocates in Alberta are kicking off 2026 by heading back to court to challenge the Alberta government’s ban on gender-affirming care for minors.
And this time around, they’re trying a new tactic to circumnavigate Alberta premier Danielle Smith’s use of the Notwithstanding Clause.
Last June, the advocacy groups Egale Canada and Skipping Stone Foundation—on behalf of five Alberta youth and their parents—successfully won a court injunction to pause the law banning gender-affirming care for minors, arguing that the law violated trans youth’s rights under the Charter of Rights and Freedoms. However, that injunction was halted after Smith’s government invoked the notwithstanding clause to force through its three anti-trans laws.
Eagle and Skipping Stone returned to court in Alberta this week to argue that the law targeting gender-affirming care is about criminal penalties and therefore actually falls under federal jurisdiction, not the province’s.
In their application to the Alberta Court of King’s Bench, the groups argue that because the law includes criminal penalties for doctors and other medical professionals who administer gender-affirming care to youth, it’s actually federal responsibility, and Smith and her government have no business creating criminal penalties like this.
And to be clear, there is precedent for this approach. In 1993, the Supreme Court of Canada ruled in R. v. Morgentaler that provincial legislation restricting abortion access was unconstitutional because it amounted to criminal law.
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