When rights become conditional

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The Saskatchewan legislature was surrounded by demonstrators chanting “my pronouns, my rights” as Premier Scott Moe pushed the province’s Parents’ Bill of Rights through the legislature in 2023. The law requires students under 16 to obtain parental consent before schools can use a different name or pronoun.

Weeks earlier, a Saskatchewan court had granted an injunction against the policy after finding there was a serious issue to be tried under the Canadian Charter of Rights and Freedoms. Rather than wait for judicial review, the government invoked the notwithstanding clause so the law could operate anyway.

Politically radioactive no more

When governments pass laws that violate the Charter, courts can declare those laws unconstitutional, preventing them from taking effect.

But when the Charter was introduced in 1982, some premiers worried that judicial oversight would limit parliamentary supremacy. Section 33 — the notwithstanding clause — was a political compromise, allowing governments to override certain protections and shield laws from judicial invalidation.

For decades, the notwithstanding clause was considered politically radioactive. Governments rarely used it because public backlash carried political consequences.

There’s been a shift over the past decade, however, and Ontario played a central role in it. In 2018, Premier Doug Ford became the first Ontario premier to invoke the notwithstanding clause after a court struck down legislation to cut the size of Toronto city council during an election campaign. 

What did other governments take from this? They saw that courts could be bypassed, and the political damage was survivable.

Now, queer, trans, and non-binary youth are increasingly becoming the testing ground for this constitutional override.

This matters particularly for queer and trans rights because courts, not legislatures, have historically been the primary drivers of 2SLGBTQIA+ equality in Canada. In Egan v. Canada, the Supreme Court of Canada (SCC) recognized sexual orientation as an analogous protected ground under section 15 of the Charter. 

In Vriend v. Alberta, the Court read sexual orientation protections into Alberta’s human rights legislation after the province deliberately excluded them.

In M. v. H., the SCC extended spousal protections to same sex couples.

Legislatures resisted these changes until courts forced them to act. That history matters when governments increasingly treat courts not as constitutional partners but as obstacles to be bypassed.

Rights are poitical and courts are obstacles

Over the past few years, various provinces have implemented laws targeting queer and trans rights. 

New Brunswick was the first province to demonstrate how politically contingent these rights have become when, in 2023, it imposed parental consent requirements for pronoun changes in schools. A year later, after a change in government, that policy was reversed. 

Saskatchewan was next to introduce parental consent requirements in 2023. Then, in 2024, Premier Danielle Smith in Alberta introduced legislation restricting gender affirming healthcare for minors, limiting transgender participation in sports. It also required parental consent before students under 16 could change names or pronouns at school. In 2025, a court granted an injunction pausing the healthcare restrictions. Alberta responded by invoking the notwithstanding clause late last year

"The Supreme Court of Canada has affirmed that trans and gender-diverse people face unique vulnerability to discrimination. Denying these individuals access to courts to test the constitutionality of laws that specifically target them would entrench stigma, perpetuate inequality, and withhold the equal protection of the law,” the BC Civil Liberties Association, the Canadian Civil Liberties Association, and the Ligue des droits et liberties said in a joint statement at the time, decrying "a deeply troubling national trend."

“The harms are not speculative. These laws threaten the safety, dignity, health, and well-being of people who already face systemic barriers in all aspects of public life.”

When governments increasingly bypass constitutional review altogether, rights become contingent on politics rather than law. And the political environment surrounding trans rights is becoming increasingly shaped by moral panic.

Following the school shooting in Tumbler Ridge last year, online extremists fixated on the perpetrator’s gender identity to spread anti-trans narratives across social media. Researchers at the Institute for Strategic Dialogue documented a massive spike in anti-2SLGBTQIA+ hate speech in the aftermath. None of it changed the underlying reality that trans people are far more likely to experience violence than to commit it. 

That same dynamic increasingly shapes public policy. 

Governments frame these laws as protecting children. But constitutional rights are supposed to matter most when fear and political pressure make minority groups unpopular.

Major medical organizations, including the Canadian Medical Association, have warned that restricting access to gender affirming care disregards established medical standards and risks harming vulnerable youth.

Research consistently shows that family rejection and social isolation are associated with significantly worse mental health outcomes for trans and non-binary youth. 

Next steps

The legal challenge of Saskatchewan’s pronoun law, Saskatchewan v. UR Pride Centre for Sexuality and Gender Diversity, is headed for the Supreme Court of Canada later this year. In May, the Women’s Legal Education and Action Fund was granted leave to intervene in the case, which it says will determine if courts can decide whether the law at issue and other discriminatory laws passed using the notwithstanding clause violate fundamental rights guaranteed by the Charter. 

The Canadian Bar Association is also among the more than 20 intervenors and will argue that pre-emptive use of the notwithstanding clause should not prevent courts from reviewing legislation for Charter compliance.

As governments become more comfortable treating Charter protections as optional, there is no clear limiting principle for where that override ends. Rights do not disappear all at once. Sometimes they erode because governments discover the public will tolerate bypassing them. As Friends of Medicare director Chris Gallaway put it, “Today it’s trans Albertans. But ultimately, an attack on anyone’s rights is an attack on all of our rights.”

So as we celebrate Pride this month and this summer, along with the vast progress we have made, remember, “elbows up for trans people, too.”