First published on 22 March 2026

This week, the Act respecting the laicity of the State (“Bill 21”) will be challenged at Canada’s highest court. One of the key questions at play is, do courts still have to pronounce themselves on the constitutionality of a law, even when the notwithstanding clause (a mechanism allowing lawmakers to ignore fundamental freedoms guaranteed by the Canadian Charter of Rights and Freedoms) is invoked? Or, can governments act without restraint, even abusively so, while courts end up being unable to pronounce themselves on the human rights of Canadians?

Since Bill 21 became law in 2019, it has had deleterious effects on many religious minorities in Québec. Amongst other minorities, Muslim women wearing the hijab have had to choose between their employment and their religious freedom – the latter being a fundamental freedom which the government of Québec has decided to violate through the notwithstanding clause. The same can be said today of trans youth in Alberta and in Saskatchewan, whose right to use their chosen name and right to healthcare have been jeopardized through the use of the notwithstanding clause.

If the Government of Québec’s position on Bill 21 (as accepted by the Québec Court of Appeal) is upheld by the Supreme Court of Canada, courts will end up powerless in the face of the notwithstanding clause, and will not even be able to examine whether the rights of justiciables have been violated by the law. This would be a forty-five-year leap backwards for constitutionally protected rights in Canada, all the way back to prior to the coming-in-force of the Charter.

“Every person in Canada benefits from the same rights and freedoms in principle, no matter one’s religion or gender,” says Celeste Trianon, founding director of Juritrans. “This court challenge offers to the Supreme Court of Canada a historic opportunity to clarify the use of the notwithstanding clause and the possibility for courts to examine laws in spite of said clause. It’s time to put an end to the ‘open bar’ certain provincial governments have been asking for.”

As the only trans-run organization intervening at the Supreme Court of Canada on Bill 21, our position is clear : in the name of judicial independence, the rule of law and the protection of minorities, courts must have the ability to examine the validity of all laws, even when the notwithstanding clause is used. Judicial oversight is part of the foundation of a healthy democracy.

We’ll be heard by the Supreme Court on Thursday, March 26. We’d like to thank our attorneys, Sajeda Hedaraly, Steeves Bujold, Ad. E. and Mariame Touré (McCarthy Tétrault LLP, Montréal) for their pro bono representation for this judicial intervention.

For media requests, send an email to celeste <@> juritrans.ca.