2SLGBTQ+ Groups Challenge Alberta’s New Transgender Health Laws

Two advocacy organizations for the 2SLGBTQ+ community, Egale Canada and the Skipping Stone Foundation, are proceeding with a court challenge against a provincial law impacting gender-affirming care for youth. This decision follows the recent passage of Bill 9 — the Protecting Alberta’s Children Statutes Amendment Act — by the Alberta legislature, which aims to shield certain laws affecting transgender youth from legal scrutiny.

Bill 9, passed on November 29, 2023, invokes the notwithstanding clause found in the Canadian Charter of Rights and Freedoms. This clause allows the Alberta government to enact laws that potentially infringe upon charter rights for a period of up to five years. Despite this legislative move, the advocacy groups are committed to amending their ongoing legal case against Bill 26, which prohibits minors under the age of 16 from accessing gender-affirming treatments such as puberty blockers and hormone therapy.

Bennett Jensen, Egale Canada’s legal director, emphasized the need for their challenge to address what they view as serious violations of the Charter. “We are seeking declaratory relief and arguing that Bill 26 is unconstitutional,” he stated. Jensen highlighted that the government attempts to criminalize healthcare options they do not endorse, an action he argues is discriminatory.

In June, a judge granted a temporary injunction that halted the implementation of Bill 26, allowing youth under 16 to continue receiving gender-affirming care. The Alberta government is currently appealing this injunction. While Bill 9 does not immediately negate the injunction, it has compelled Jensen’s team to adjust their legal strategy to maintain the injunction’s effectiveness.

The notwithstanding clause is a significant aspect of this legal battle. Jensen’s team intends to argue that Bill 26 encroaches on federal jurisdiction concerning criminal law, suggesting that the provincial government has overstepped its authority. He referenced a similar case from 1993 concerning abortion access in Canada, which ultimately led to a Supreme Court ruling that deemed the provincial legislation unconstitutional.

“If the government had genuine safety concerns, they would enact a ban on the medical treatments in question, but they haven’t done that,” Jensen continued. “What they have done is deny these treatments solely for gender-diverse youth, which we argue is rooted in moral objections rather than health and safety concerns.”

Legal experts note the complexity of the case. Eric Adams, a law professor at the University of Alberta, explained that the challenge hinges on determining whether the province’s actions are based on health regulations or moral prohibitions. “The criminal law involves prohibiting certain conduct based on moral considerations,” he stated, suggesting that this case tests the boundaries between provincial health jurisdiction and moral legislation.

Despite the controversy, the Alberta government, represented by Justice Minister Mickey Amery, remains firm in its position. In a recent statement, Amery’s office reiterated support for the principles outlined in Bill 9, asserting that it aims to preserve the rights of children and youth while reinforcing parental authority. “These laws affect real people and families in deeply personal ways,” the statement read. “These conversations deserve respect, patience, and compassion.”

The government has also introduced additional legislation alongside Bill 26. Bill 27 restricts name and pronoun changes for students, while Bill 29 prohibits transgender women and girls from competing in women’s sports. Egale Canada has already initiated legal challenges against both these bills, emphasizing their commitment to advocating for the rights of marginalized communities in Alberta.

As this legal battle unfolds, the implications for Alberta’s youth, families, and healthcare providers remain significant. The outcome of these challenges could have lasting effects on how health care is accessed by transgender youth in the province.