Alberta legal scholars say UCP’s proposed trans policies are ‘unconstitutional’

Alberta legal scholars say UCP’s proposed trans policies are ‘unconstitutional’

Thirty-six law professors, legal researchers and other staff from two Alberta universities are asking the province to reconsider policy changes affecting transgender youth.

The open letter is from staff at the University of Alberta and University of Calgary law schools.

Alberta Premier Danielle Smith has said the fall sitting of the legislature would bring new rules, including parental notifications and/or consent for youth changing their names or pronouns at school, as well as restricting access to hormone treatment and surgery for gender-affirming healthcare.

The province would also clamp down on transgender female athletes competing in women’s and girls’ sports.

The letter says the proposed policies would be unconstitutional and infringe on the rights and freedoms enshrined in four different sections of the Charter of Rights and Freedoms: freedom of expression in section 2(b), the right to life, liberty and security of the person in section 7, the right to not be subjected to cruel and unusual punishment in section 12, and equality rights in section 15.

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“Protecting fundamental freedoms, safeguarding legal and equality rights, and respecting human dignity are guiding principles of Canadian society. Infringing Charter rights and freedoms undermines our collective aspirations and diminishes all of us,” the open letter reads.

The legal scholars also said any use of the Charter’s notwithstanding clause would be “wholly unnecessary” if the government believes the restrictions are in the best interests of trans youth, and that using that section of the Charter would be needed if the government believes “neither the science nor the human rights are on their side.”

The law professors said they received confirmation of receipt from the offices of the premier and ministries they sent the letter to.

Late Thursday, the premier’s office responded to the open letter.

“Alberta’s government has put these policies forward and will develop legislation with the best interests of the child in mind,” Smith’s press secretary Sam Blackett wrote. “There’s a legal court process that designates certain individuals as mature minors in very limited circumstances, these policies will not change that process.”

Without seeing the drafted or final language of the policies, the law professors and legal researchers said they are only able to go on what Smith has said about the types of restrictions her government plans to implement.

“We do think the policies are unconstitutional,” U of C law professor Jennifer Koshan said. “We think there are strong arguments that those policies, once they’re put into writing, would violate the Charter.”

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“There is a sense that these types of policies are really chipping away at the respect for human rights and respect for the Charter and the Constitution that we have in Canada that are really meant to protect minority groups from majoritarian rule,” U of A assistant professor of law Florence Ashley said.

While expressing concern for trans kids, Smith has previously said the policies are intended to protect the choices a youth could make about altering their body until they’ve “grown mature enough to make such choices safely, and with a full understanding of what that means for the rest of your life.”

“We have to preserve the rights of kids to be able to make decisions as adults,” Smith said on Feb. 1. “We’re aiming to be supportive of children’s rights. We want to make sure that children do not prematurely make decisions that are going to be irreversible.

“We think that this is preserving of choice.”

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The legal scholars said requiring parental approval and/or notification for name or pronoun changes at school would violate the freedom of gender expression, a fundamental freedom in section 2(b) of the Charter.

“Denying youth access to care violates their rights to autonomy and freedom of expression,” the legal scholars wrote.

Click to play video: 'Comparing Saskatchewan and Alberta’s parental consent policy'

Comparing Saskatchewan and Alberta’s parental consent policy

Life, liberty and security of the person

The open letter said that will cause youth to either misgender themselves at school or out themselves to potentially non-supportive parents, causing “significant harm” and would be a “cruel choice” that violates their section 7 rights to “make fundamental personal decisions and be free from state-imposed psychological distress.”

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The law professors noted a Saskatchewan court granted an injunction to prevent “irreparable harm” to trans and gender-diverse youth from a similar policy.

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The Saskatchewan government would later use the notwithstanding clause to put that policy into law.

Another “serious violation” of the right to life, liberty and security of the person, the letter said, would be in the government imposing a medical decision by prohibiting “standard-of-care interventions” of gender-affirming care, the letter said.

Under the mature minor doctrine of common law, youth who understand a medical procedure and its possible consequences can legally make that decision.

Already in Canada, youth must be the age of 18 before having “bottom surgery.”

The letter quoted a 2009 Supreme Court decision that said “young people should not automatically be deprived of the right to make decisions affecting their medical treatment,” but are instead “entitled to a degree of decision-making autonomy that is reflective of their evolving intelligence and understanding.”

Smith was asked about the possibility of the new policies violating childrens’ Charter rights in accessing health care on Feb. 1.

“I guess I’ll have the lawyers debate that out,” the premier said. “But my understanding is that it’s pretty well understood that parents are principally responsible for their children up to and including age 15. At age 16 or 17, that’s of course when kids develop a little bit more autonomy.”

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Koshan previously told Global News there’s no set age at which a child can be considered a mature minor, and is instead identified on a case-by-case basis depending on the minor’s maturity, understanding of the decision and the context of the decision.

The premier claimed a mature minor making decisions was “fairly rare.”

“I think that the practice has been that we do rely on parents to be able to provide for their kids,” Smith said on Feb. 1.

Restricting trans women from participating along their cisgendered counterparts would “likely violate all women and girls’ rights to privacy and bodily integrity under section 7 of the Charter by encouraging practices of ‘gender verification,’” the open letter states.

Click to play video: 'Alberta LGBTQ2 community members meet with cabinet minister on gender policies'

Alberta LGBTQ2 community members meet with cabinet minister on gender policies

‘Cruel and unusual punishment’

The open letter said the “state-imposed psychological distress” imposed by that “cruel choice” of either self-misgendering or facing unsupportive parents would also violate youth’s right to not be subjected to cruel and unusual treatment or punishment, under section 12 of the Charter.

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In the video announcing the policies and at subsequent news conferences, Alberta Premier Danielle Smith appeared to be relying on existing laws to protect children from any violence that stemmed from the policies.

“We have child protection laws that will be strictly enforced,” Smith said on Jan. 31.

The open letter said the existing child protection legislation is “insufficient,” and would require children to report their own parents to child protection authorities.

“This reliance on child protection laws is completely unrealistic and untenable, and exacerbates the violations of the Charter and human rights legislation discussed above,” the letter reads.

Ashley said the child protection system in Alberta is already under stress and that the child welfare system is overburdened.

“Laws need to be there in order to protect precisely those who do not feel safe telling their parents, because that’s the population that we’re actually thinking about. That’s the population that’s actually being impacted by these changes in laws,” they said.

The legal scholars also took umbrage with the proposed opt-in framework for in-school instruction on topics including gender identity, sexual orientation and human sexuality.

“The proposed restrictions will cause harm to all youth, especially to those who are vulnerable to sexual violence, including girls and 2SLGBTQ+ youth. In addition to the Charter provisions mentioned above, the proposed scheme impacts youth’s right to access to information, which is an important aspect of freedom of expression.”

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Smith said the change to opt-in was to keep parents “in the loop” about what’s being taught in schools.

The legal experts also said the policies announced by social media video on Jan. 31 would be inconsistent with Indigenous law. Citing the Final Report on Missing and Murdered Indigenous Women and Girls that “some First Nations also challenged European norms that understood gender as binary” and how two-spirit people were revered and included in social and ceremonial roles.

“Therefore, the Government of Alberta should also be consulting with Indigenous communities about the impact of the proposed restrictions on Indigenous law,” the open letter says.

Click to play video: 'What is SOGI 123?'

What is SOGI 123?

“By singling out a historically disadvantaged and vulnerable group for adverse impact, the restrictions also would violate the right to equality guaranteed by section 15 of the Charter and the Alberta Human Rights Act,” the letter says.

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The same rights would be violated under the proposed sports policy excluding trans women from participating alongside cis women.

“Such a clear distinction based on sex and gender identity unquestionably impairs the right to equality of trans women under section 15 of the Charter and under the Alberta Human Rights Act,” the letter says. “Differential treatment cannot be based on needless speculation or stereotype, but must be rooted in clear evidence of need and necessity.”

On Feb. 1, Smith said her government wants to enshrine the choice of women who are assigned female at birth to be able to “participate in a biological female-only category while still preserving the gender-neutral categories and coed opportunities so that everyone has the ability to participate.”

The notwithstanding clause

The Alberta legal scholars said the use of section 33 of the Charter, the notwithstanding clause, allows governments to bypass Charter rights and freedoms, and severely limit the possibility of judicial review.

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“If the government genuinely believes that the restrictions are in alignment with the best interests of trans youth, invoking the notwithstanding clause should be wholly unnecessary,” the letter reads. “Only if the government believes that neither science nor human rights are on their side does using section 33 become necessary.”

On Feb. 1, Smith said she hopes her government won’t need to use the notwithstanding clause.

On Thursday, Smith’s office did not respond to a request for comment about the possible use of that section of the Charter.

Koshan said so far, the Alberta government hasn’t provided any justification for the restrictions that would fall under “reasonable limits” under section 1 of the Charter.

Click to play video: '‘I hope it doesn’t come to that’: Premier Smith on notwithstanding clause option for new trans policies'

‘I hope it doesn’t come to that’: Premier Smith on notwithstanding clause option for new trans policies

The 36 legal experts said that lack of evidence led them to a conclusion about why the notwithstanding clause could be used.

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“Using the notwithstanding clause to promote partisan political aims at the expense of a small, vulnerable group of youth would be, in our opinion, unconscionable.”

Ashley said a government’s choice to use the notwithstanding clause in matters like these sends a clear message.

“I think that a government that uses the notwithstanding clause is more or less admitting in almost all normal situations that this is a law that indeed violates the rights of people,” they said.

That section of the Charter was included because of the possibility that voters could hold legislators responsible for a cavalier use of the notwithstanding clause.

However, according to the 2021 census, only 0.67 per cent of Albertans over 15 identified as trans or non binary.

“To override their rights knowing that they are too few to hold the government accountable at the ballot box would be fundamentally anti-democratic,” the legal scholars said.

–with files from The Canadian Press