Bill 9 not discouraging 2SLGBTQ+ groups challenging Alberta laws affecting transgender youth

Two 2SLGBTQ+ advocacy organizations plan to continue with a court challenge of a provincial law affecting gender-affirming care for youth, despite the Alberta government passing legislation that protects three of its laws affecting transgender youth from legal action.

Bill 9 — the Protecting Alberta's Children Statutes Amendment Act — passed through the legislature Wednesday, at the tail end of its fall sitting. The bill invokes the notwithstanding clause, overriding Charter challenges against three other pieces of legislation that relate to gender-diverse youth for years.

Egale Canada, Alberta’s Skipping Stone Foundation and five families had launched a court challenge last year against Bill 26, which prohibits minors under 16 to access gender-affirming care, including puberty blockers and hormone therapy.

Now, they're amending their case in light of Bill 9, said Bennett Jensen, Egale Canada's director of legal.

“One of the things that we are asking for is declaratory relief, the analysis of the Charter violations,” Jensen said.

“The second thing that we're arguing is that Bill 26 is unconstitutional, in addition to being a violation of Charter rights. It's unconstitutional because the government of Alberta is improperly seeking to criminalize health care that it doesn't agree with.”

In June, a judge granted an injunction. It paused Bill 26 from going into effect, meaning youth under 16 are still able to access treatments.

The Alberta government is appealing that injunction.

Bill 9 doesn’t immediately cancel out the injunction, but it forced Jensen's team to change their approach to the court challenge to ensure that it stays in place, he said.

The notwithstanding clause — Section 33 of the Canadian Charter of Rights and Freedoms — allows a government to pass legislation that infringes on certain parts of the Charter for up to five years. Although, the government could renew that provision.

Jensen's team now plans to argue that Bill 26 falls into the realm of criminal law, which is under federal jurisdiction, he said. Essentially, he said, that it amounts to the province having overstepped.

Jensen pointed to a similar court challenge in 1993 that fought provincial legislation restricting abortion access.

The case climbed up to the Supreme Court of Canada, where the legislation was determined to be unconstitutional because it amounted to a violation of criminal law.

“If the government had safety concerns, then they would bar the medical treatments in question, but they haven't done that,” Jensen said.

“They've just denied these treatments for gender-diverse young people. That's discriminatory, and we are arguing that they are doing that because they have a moral problem.”

A moral argument

If the organizations wanted to use the division of powers to defend the injunction, they would need to lean into a moral defense, said Eric Adams, a University of Alberta law professor.

“The criminal law involves prohibiting certain conduct on the basis of moral considerations or health and safety,” he said.

“This is not the province regulating health care, is the allegation. Rather, this is a moral prohibition on some kind of wrong and that, in providing this kind of care or this kind of legislation, the province is stepping into, effectively, the criminal domain.”

But this argument could get murky, Adams said.

This issue relates to health care, which is broadly dictated by provinces. So the government could argue that gender-affirming treatment falls under the jurisdiction, he said.

“Of course, it'll be for the judge to decide whether or not that argument succeeds," he said.

"But the province will, I think, go into that case feeling confident that they have strong arguments on their side that this is classic provincial jurisdiction.”

Heather Jenkins, press secretary for Justice Minister Mickey Amery, told CBC News in a statement that the government would continue to stand by the principles outlined in Bill 9, and the laws affecting transgender Albertans.

“Bill 9 preserves the choices of children and youth, strengthens the role of parents as a child’s primary caregiver, and ensures fairness and safety in amateur competitive sports,” Jenkins's emailed statement said.

“Alberta’s government understands that these laws affect real people, and real families in deeply personal ways. These conversations deserve respect, patience, and compassion — never anger or judgment.”

Along with Bill 26, the Alberta government also passed Bill 27, restricting pronoun and name changes for students, and Bill 29, prohibiting transgender women and girls from participating in competitive girls’ and women's sports teams.

Egale Canada launched a challenge against Bill 27 in September. The organization said it still intends to challenge Bill 29.