Judge sides with province, removes injunction pausing ban on Alberta youth receiving gender-affirming care

A judge ruled Thursday to remove an injunction in place since the summer against Alberta's law prohibiting doctors from providing gender-affirming care to youth.

The government had appealed to have that injunction removed, after it passed Bill 9 last week.

That legislation, the Protecting Alberta's Children Statutes Amendment Act, invoked the notwithstanding clause to override Charter challenges and protect the provincial government's trio of laws related to transgender youth.

One of those laws is Bill 26, which prevents doctors from providing treatment like puberty blockers to youth under the age of 16.

2SLGBTQ+ advocacy groups Egale Canada and Skipping Stone Foundation, along with five families, successfully filed for an injunction against that bill in June, effectively pausing it since then.

Lawyers for those groups plan to amend their challenge of Bill 26 now that the notwithstanding clause has been used.

Both parties were in a Calgary court Thursday.

Lawyers arguing against the government's appeal called for the injunction to either be kept in place, or that a new, temporary one be granted while they await a hearing date on their amended challenge of the law.

Adam Goldenberg, representing Egale Canada from McCarthy Tétrault LLP, argued it would create harm and confusion for youth who rely on gender-affirming treatment if the injunction was lifted, only to be put back in place if their updated court challenge was successful.

"Don't let the toothpaste out of the tube in the short period of time it will take for us to argue that amending application," he said.

Government lawyer David Madsen argued the judge could not grant an interim injunction based on arguments that are not yet before the court.

"I could stand here today and say, 'I'm going to file a statement of claim tomorrow. Can you give me an injunction, please?' You cannot do so," he said. "That is not only legally unfair, it's procedurally unfair."

Ultimately, Justice Allison Kuntz, who had previously granted the temporary injunction, ruled in the government's favour.

Kuntz said Egale's proposed amended challenge "does not change the fact that the current landscape is an injunction based on the potential infringement of Charter rights that the government is entitled to override."

In a press release, Egale Canada called the decision “cruel and dangerous,” saying it will harm vulnerable young people.

The organization said it, along with Skipping Stone, will be seeking a new injunction “based on constitutional arguments not subject to the notwithstanding clause.”

A date for a hearing on the amended challenge to the law itself was set for the end of January.

Egale Canada has also launched a legal challenge of Bill 27, which requires parental consent for youth under 16 to change their pronouns at school, and says it intends to challenge Bill 29, which legislates only athletes assigned female at birth can compete in women’s sports.