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Legal battle brewing over Alberta gender identity, health care policies

Government 'not on solid footing,” U of A law professor says

Advocacy groups and legal experts are questioning the validity and legal standing of a slate of new policies about youth gender identity and health care announced by Alberta Premier Danielle Smith last week.

“The measures are clearly unconstitutional,” said Bennett Jensen, the director of legal for Egale, a non-profit research, support, and advocacy organization for 2SLGBTQI+ people. 

“We at Egale believe that all young people deserve a chance to live happy and healthy lives,” Jensen said. “[Smith's new policies] appear to be a systematic assault on the ability of gender diverse young people to do that.”

At a press conference on Feb. 1, Smith said the policies, which range from banning gender-affirming top surgery for minors to barring transgender girls and women from competing in girls' and women's sporting competitions, won't be implemented until the fall. Smith said the government will seek consultation on how exactly the policies will be implemented.

The policies are all being put forward, Smith said, to “preserve the choices children have regarding their gender identity until they are mature enough to make them.”

Jensen said Egale, in conjunction with Calgary-based non-profit the Skipping Stone Foundation, will begin legal action if the Alberta government starts implementing the policies. The Skipping Stone Foundation works to connect transgender people with support and resources across the province.

“How our arguments are constructed or the exact mechanisms that we will use to challenge these policy measures ... will depend on what instrument the premier uses to roll them out,” Jensen said. It's likely the argument against the policies will be similar to the argument against the Saskatchewan government's policy requiring schools to obtain parental consent for youth under the age of 16 to use preferred pronouns or name in the school system, Jensen added. 

Saskatchewan's policy is also one that Smith announced this week, although she said Alberta will also require schools to notify parents — but not obtain parental consent — when youth aged 16 or 17 want to use preferred pronouns and names in the school system.

Jensen is co-counsel for the UR Pride Centre for Sexuality and Gender Diversity, a non-profit based at the University of Regina that filed the lawsuit against the Saskatchewan government last fall.

In the Saskatchewan Court of King's Bench in Regina, Jensen, along with co-counsel Adam Goldenberg, argued the policy violated multiple sections of the Canadian Charter of Rights and Freedoms. As a result, Court of King's Bench Justice Michael Megaw granted an injunction in the case so a hearing could be held to determine the constitutionality of Saskatchewan government's policy. 

“It is noted that the government does not appear to advance an argument that such treatment of the younger students is in their best interests or will, necessarily, lead to better outcomes for them from a mental health perspective,” Megaw noted in his decision. “The attempts therefore to restrict or control a student's use of particular pronouns is unsupported, potentially, by any legitimate governmental action.”

“I determine, at this preliminary stage, the public interest in recognizing the importance of the governmental policy is outweighed by the public interest of not exposing that minority of students to exposure to the potentially irreparable harm and mental health difficulty of being unable to find expression for their gender identity.”

However, as CBC Saskatchewan reported at the time, just hours after Megaw granted the injunction, Saskatchewan Premier Scott Moe announced his government would use the Charter of Rights and Freedoms' notwithstanding clause to pass the bill into law, effectively overriding the injunction.

The notwithstanding clause, or Section 33 of the Charter, allows provincial governments to pass legislation that may impede on the rights and freedoms that are supposed to be protected in the Charter for a period of five years. The clause specifically allows governments to pass legislation that may impede on 10 types of rights and freedoms, including the right to life, liberty, and security of the person; equality rights, such as the right for every individual to have “protection and equal benefit of the law without discrimination”; and more.

The Saskatchewan government passed its legislation, called the “Parents' Bill of Rights,” into law using the notwithstanding clause in October. CBC Saskatchewan reported the provincial government was the first in Canadian history to use the notwithstanding clause against the rights of children.

The government's use of the notwithstanding clause also led to the resignation of one of Saskatchewan's six human rights commissioners, Heather Kuttai. 

“I cannot tell you the depth of my disappointment in the government I have worked for and supported for the last nine years,” Kuttai wrote in her resignation letter.  “I strongly disagree with the proposed legislation that requires teachers to seek parental permission to change a child's name and/or pronouns when they are at school.”

“This is an attack on the rights of trans, non-binary, and gender-diverse children.”

During the news conference on Thursday, Smith was asked if she'd consider using the notwithstanding clause if need be, to which she said “I hope it doesn't come to that.”

“We believe that the child's best interests is served by making sure that when they're making decisions that it's not irreversible until they're of an age where they're prepared to live with the consequences of that,” Smith said. “I think because of those aspects, I would hope that this is supported.”

“That's the spirit with which we've gone into it, is to making sure that we're protecting children's rights and children's choices.”

Florence Ashley, a University of Alberta faculty of law professor who specializes in trans law, says these policies don't protect rights; rather, the policies violate rights.

“There is very little doubt that the policies announced by the UCP would violate the Charter rights of trans people, especially Section 7 [which is the right] to life, liberty, and security of the person; and Section 15, rights to equality,” Ashley said, adding Smith's announcement that access to hormone therapy and puberty blockers will be banned for those under the age of 15 may also violate federal laws like the Canada Health Act.

“Legally speaking, the government is not on solid footing,” said Ashley. “These policies will undoubtedly harm trans kids and adults, as well as violating their rights in major ways.”

After being asked how confident she was that these policies wouldn't violate the Charter or the Canada Health Act, Smith said on Thursday that lawyers will have to “debate that out.”

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