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Advocacy groups to argue Alberta transgender legislation amounts to criminal prohibition
- David Ebner | The Globe and Mail
- 4 days ago
- 4 min read
Advocacy groups are attempting a new legal strategy to combat an Alberta law that prohibits doctors from providing gender-affirming health care to transgender youth – legislation the provincial government has shielded with the Charter’s notwithstanding clause.
Last June, Egale Canada, Skipping Stone Foundation and five youth and their parents won a court injunction to put a pause on the law as they pursued a legal challenge under the Charter of Rights and Freedoms.
But in December the government, led by United Conservative Party Premier Danielle Smith, invoked the notwithstanding clause to insulate the law from Charter challenges. The Court of King’s Bench soon lifted the injunction.
On Monday, the groups are back at the Court of King’s Bench in Calgary. They plan to argue that Alberta’s law is a criminal prohibition, rather than one focused on health care under the province’s Health Professions Act.
Provinces oversee health care, but in the Constitution, the federal government is in charge of criminal law. The goal is to strike down the law on this basis.
This legal move is part of a broader cross-country fight on the part of individuals and advocacy groups to protect what they see as the rights of Canadians under attack from government legislation.
Among various legal challenges in recent years, the biggest one is happening in late March: The Supreme Court of Canada is holding a landmark week-long hearing on Quebec’s Bill 21 that revolves around the notwithstanding clause.
The clause, Section 33 of the Charter, allows governments to override a range of Charter rights, from freedom of religion and security of the person to the right to a lawyer if arrested. Use of the clause in conservative-led provinces has become more common since the late 2010s. Alberta used it in four laws last fall.
But the notwithstanding clause isn’t an all-purpose legal trump card. It does not apply to the Constitution’s division of federal and provincial powers.
The challengers to the Alberta government are asking the court on Monday to allow them to pursue their new legal strategy. If the court agrees, the question will proceed to the next stages.
The challengers are also asking the court to grant another injunction, to once more put the law on pause, after lifting the previous one.
In the challengers’ legal filing, they note that Alberta is the only jurisdiction in Canada to prohibit or severely restrict gender-affirming health care to young people. They claim this causes irreparable harm to gender diverse youth.
The advocacy groups argue that the law falls under the criminal domain because it includes prohibitions and penalties on doctors who violate the law.
“It purports to legislate in an area of exclusive federal jurisdiction, namely, the criminal law,” the legal filing states.
The Alberta government is calling on the court to dismiss the application and argues that there is no legal foundation for the advocacy groups’ new position.
In a legal filing, the government said its law is about protecting “the health, safety and long-term choices of minors with gender dysphoria or gender incongruence from potential harm by regulating medical interventions not proven to be sufficiently safe and effective.”
The government said this is firmly within the province’s legislative jurisdiction and declared: “There is no merit to any suggestion to the contrary.”
In March, the Supreme Court of Canada will consider potential limits on the notwithstanding clause as several groups mount a final appeal against Quebec’s Bill 21. The Quebec government twice won in the lower courts.
Bill 21, which is shielded by the notwithstanding clause, bans public-sector workers including teachers from wearing religious symbols such as a hijab at work.
The eventual ruling from the top court will decide crucial questions of individual rights and government powers.
While the notwithstanding clause is at the heart of the Bill 21 case, it involves myriad legal issues and arguments. Among those many approaches was an attempt to paint Bill 21 as a criminal law and thus beyond the jurisdiction of the Quebec government.
Like the other arguments against Bill 21, that didn’t succeed in the lower courts.
In a wide-ranging 2021 ruling from the Quebec Superior Court, it was noted that while Bill 21 has attributes of public morals and public order, it doesn’t fall under federal criminal law because it does not include a penalty.
The Quebec Court of Appeal in 2024 upheld the 2021 decision. The appeal-court judges said that Bill 21’s restrictions on freedom of belief and religion – enabled by the notwithstanding clause – are “far removed from the criminal law” and federal powers.
In the Alberta case on Monday, the advocacy groups are relying on a 1993 Supreme Court precedent known as Morgentaler III.
After the Supreme Court’s landmark 1988 Morgentaler abortion ruling, Nova Scotia tried to outlaw abortion clinics. That was done under the guise of a health care law. But the lower courts, and the Supreme Court, all disagreed and saw it as criminal law, all ruling that Nova Scotia didn’t have the power to enact such a law.
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