To: Hon. Mickey Amery (Minister of Justice and Deputy House Leader)
Re: Bill 26 (Health Statutes Amendment Act, 2024 (No. 2))
Bill 27 (Education Amendment Act, 2024)
Bill 29 (Fairness and Safety in Sport Act, 2024)
After careful review and analysis by CBA Alberta’s Equity, Diversity and Inclusion Committee and the CBA Alberta Sexual and Gender Diversity Alliance Section, the Executive Committee and Board of Directors provide you the following points for your consideration, regarding the three bills presently before the legislature. As you are aware, the Canadian Bar Association, Alberta Branch (“CBA Alberta”) is an organization representing nearly 5,500 lawyers in Alberta and is part of CBA National (“CBA”), which represents over 39,000 lawyers in Canada.
CBA Alberta and CBA recognize the need for protection for individuals who, as part of their identity, sincerely feel their inner sense of gender does not align with their biological sex at birth (“transgender”) and believe being able to change their bodies will reduce self-hate and suicidal ideation. Many CBA Alberta members are concerned that the bills above, recently introduced, will not enhance this protection; and in fact, from a legal standpoint will permit greater harm to the interests of these Albertans. Further, we are concerned that this legislation in fact subverts protections, that are already in place in law and practice.
Transgender people have rights and should be protected. Gender identity and gender expression are now protected grounds in human rights legislation across Canada, including in Alberta. In Hansman v. Neufeld, 2023 SCC 14, the Supreme Court of Canada recently affirmed the unique discrimination and disadvantages that transgender people face in society. Accordingly, it is clear that transgender people exist, they are worthy of dignity and human rights, and they are the subject of significant discrimination in Canadian society.
Transgender youth exist and are extremely vulnerable. Statistics show that transgender youth face greatly elevated risks of homelessness, mental health issues, and suicidality. This all then gives rise to a critical question: how can we support these vulnerable children and youth? If we do not support our youth, there is a very real risk that many transgender and gender-diverse youth in this province will never become adults.
A clear role for parents in protecting vulnerable transgender youth has already been defined. CBA Alberta recognizes that section 21 of the Family Law Act already provides guardians certain relevant powers, responsibilities, and entitlements of guardianship such as “to nurture the child’s physical, psychological and emotional development and to guide the child towards independent adulthood, to make decisions about the child’s education, including the nature, extent and place of education and any participation in extracurricular school activities, to consent to medical, dental and other health related treatment for the child, to receive from third parties health, education or other information that may significantly affect the child”.1 However these powers, responsibilities, and entitlements are to be exercised according to the best interests of the child and provide the “greatest possible protection of the child’s physical, psychological and emotional safety.”2 CBA Alberta is committed to the best interests of the child and notes that the Child, Youth and Family Enhancement Act encourages “any person who has reasonable and probable grounds to believe that a child is in need of intervention” to make submissions to authorities.3 It is within this context. that we express concern at this time.
Changes to the law must be constitutional. CBA Alberta shares the government’s goal of protection; however proposed changes to the law must be constitutional. We note the more recent Alberta Court of Appeal decision PT v Alberta, 2019 ABCA 158, addressing a constitutional question regarding the relationship between transgender children, parents, and schools. CBA Alberta expresses concern that elements of the proposed legislation may later be found to be unconstitutional. At the outset, it is trite law that gender identity is an analogous ground under section 15 right to equality: Hansman v Neufeld, 2023 SCC 14 at 88.
Provisions of the proposed legislation violate ss. 2b, 7, 12, and 15 of the Charter, largely for the reasons articulated in this open letter from ~35 law professors from the University of Calgary and the University of Alberta.
Bills 26 and 27 can also be seen as contrary to the Alberta Human Rights Act, which prohibits discrimination based on gender expression or identity in the provision of services. Further it can be seen as running contrary to the UN Convention on the Rights of the Child which calls for non-discrimination, operating in the best interests of the child, fostering the right to life and development, and the right to participation.
Particularly, Bill 26 can be seen as being in violation of section 7 of the Charter by preventing transgender minors from accessing medical care needed for them to realize their rights to life, liberty and security of the person, given the documentation of higher suicide rates in transgender minors who do not have access to these services. It can also be seen as being in violation of section 15 of the Charter by discriminating against transgender minors in access to medical procedures and medication, which remain available for minors accessing these for purposes other than gender-affirming care. There are no bottom surgeries in the province for anyone under 18. The gender affirming care being given is all reversible, after extensive consultation with a team of medical professionals. As such, this violation of Charter rights would likely not be found to be justified.
Bill 29 also runs counter to the Alberta Human Rights Act (in the protected area of memberships and associations on the basis of gender identity and expression), and section 15 of the Charter. Bill 29 requires Ministerial approval for establishment of mixed gender and mixed leagues, uses outdated terms such as biologically male and female, and includes a broad regulatory power for the Minister to arbitrarily create and apply regulations. Auer v Auer, 2024 SCC 36 and TransAlta Generation Partnership v Alberta, 2024 SCC 37 make clear that it is now less burdensome to challenge the legality of unreasonable regulations upon judicial review. The power to make regulations is not without the requirement of reasonableness.
The government can be held liable for damages for unconstitutional laws. All three Bills have a provision that states that “no action lies against [the Crown, or listed entities] for anything done or omitted to be done in good faith when acting or purporting to act…” in accordance with the Bills. This is in contravention of the recent Supreme Court of Canada Decision Canada (Attorney General) v Power, 2024 SCC 26, which affirmed that the Crown can be held liable for damages related to unconstitutional laws.
All three Bills are lacking in checks and balances. Bills 26 and 27 give the Minister broad power to add medications, treatments or policies without consultation; and Bill 29 for largely defers to regulations which will govern accessibility to sports for transgender Albertans, which are entirely at the discretion of Cabinet, with no ability for the Legislature to scrutinize, and have not yet been released publicly.
The legislation poses more harm, not less, for transgender youth. Bill 27 can be seen as violating section 7 of the Charter, as research has shown that when youth are prevented from using pronouns and names that reflect their gender identity, they experience increased suicidal ideation, poor mental health, and poor performance in school. Additionally, requiring schools to inform parents of a change in pronouns or name puts the student at risk of physical and psychological harm at home. It deprives school as an affirming and safe environment for children. It can also be seen as a violation of section 15 of the Charter, as it explicitly states that it does not require parents to be informed or provide consent for a name change, if it is for reasons other than gender identity.
Bill 27 requires children to be “outed” to their parents and if there is no consent from parents, it requires them to be misgendered (referring to an individual by pronouns or other gender markers that do not accord with their gender identity), and deadnamed (referring to an individual by a name that does not accord with their gender identity). Misgendering has a profoundly stigmatizing and marginalizing impact.4 It signals to trans people that their identities are not seen or respected, and that they may not be in a place where it is safe to be themselves. “Coming out” to parents is a very important, sensitive experience with implications for physical and psychological harm - school is often a safe haven to “test” out one’s authenticity without that harm. Including such prohibitions also perpetuates stigma and transphobic rhetoric. These potential violations of section 7 and 15 are not justifiable under section 1 of the Charter, given the legislation being arbitrary in nature, not linked to any justifiable objective (makes schools less safe, and does not foster more parental involvement since the result will be children remaining “closeted” to avoid reach of the legislation), and is disproportionate.
The legislation poses significant challenges for medical and teaching professionals. This proposed legislation has been denounced by leading medical associations in Canada, with expertise on these issues. One reason is that the legislation risks placing doctors in a difficult position, in which they will be forced to withhold necessary gender-affirming care, that would have otherwise been recommended.
Also concerningly, Bill 26 takes the decisions out of the hands of medical experts treating minors and arbitrarily places it in the hands of the Minister’s judgment; and has sections that allow the Minister to denote any type of drug or surgery to fall into the prohibitions’ purview without Parliamentary checks and balances. This Bill brings changes to the Health Professions Act which applies to 27 medical professions; when really these prohibitions should only be related to one profession, physicians. It is also important to note that physicians’ conduct is already restricted by the Criminal Code and professional standards of conduct, which is where regulation of that profession should fall under; not under the Health Professions Act. Such regulations should fall to the regulator of the health profession, not by amending the Health Professions Act. The Bill deprives parents and minor patients of their right to independent medical decision-making, as well as leads to potential intrusive punishments against physicians, for exercising their medical expertise to provide a proven and accepted medical treatment. It is also concerning that these prohibitions run directly counter to freedom of expression, thereby contradicting the proposed Bill of Rights.
A specific impact of Bill 27 is increased red tape and bureaucratic hurdles, for teachers and administrators to work through. CBA Alberta note that the proposed legislation has been denounced by other organizations who work closely with youth, including the Alberta Teachers’ Association and the Social Workers Association of Alberta. Other organizations, such as the Canadian Association of Social Workers have denounced similar provisions in legislation advanced by other provinces. We urge the government to carefully consider those concerns as well.
CBA has provided guidance on ways to protect transgender youth. CBA recently passed national resolutions in this regard (A Call to Combat Homophobia and Transphobia, and A Call to End Harmful Education Policies.) CBA called on organizations and federal, provincial and territorial governments to implement the 45 recommendations from the CBA Access to Justice for Trans People Report, support and adopt laws to combat hate speech as discrimination, develop a national strategy involving all l evels of government to protect the rights o f 2SLGBTQI+ people, and combat increasing transphobia and hate crimes. In Call to End Transphobia and Homophobia, the CBA notes that 2SLGBTQI+ people are at high risk of systemic discrimination, harassment and violence, experience cooccurring legal problems at higher rates than the general public, and experience unique barriers in accessing justice.
CBA also spoke out against harmful education policies, noting that policies that may prevent youth from changing their name and pronouns in a school setting are contrary to a child’s rights under the UN Convention on the Rights of the Child. CBA called for the end of practices creating inequity for transgender people and condemned policies that force teachers to inform parents if a child wishes to be referred to by a different name, or pronouns.
As it stands currently in Alberta legislation, a child over the age of 12 must consent where a guardian wishes to change their name5, only changes to anatomical sex (attested by 2 physician), allow for a “change of sex”6. There is no requirement under the Education Act, that teachers strictly follow the Vital Statistics Act in relation to the name or gender of a student.
There is room for greater empathy and genuine support within policy. Individuals who feel their inner sense of gender does not align with their biological sex at birth, often face complex multi-directional challenges that makes a “one size fits all” approach, with zero exceptions, inappropriate. Circumstances vary greatly from person to person and can change over time. While CBA Alberta certainly acknowledge the announcement of 148 million dollars over 2 years for CASA Mental Health announced May 2024, we encourage additional or specified funding for transgender youth or youth experiencing a traumatic puberty, who are at significant risk.
We note that some of the language used throughout the Bills is outdated and may be discriminatory. Examples include the use of “sex reassignment surgery”, which is more appropriately referred to genderaffirming surgery (or more generally, gender-affirming care), and “preferred name/pronouns”, which are not referred to as “preferred”, as it suggests that the use of proper pronouns is optional. Also concerning, is the lack of definition for terms including sex, gender identity, and gender expression.
While we note some studies referenced in the debate on harm reduction, some of the referenced material was dated.
CBA Alberta also caution against making education optional in Bill 27, regarding transmission of sexually transmitted diseases, which may exacerbate the current above national average rates of chlamydia (402/363.2), gonorrhea (115.9/95.8), syphilis (35.7/16.9).7 We express concerns about unintended consequences that may result if this education is not utilized because of opt-in provisions.
CBA Alberta remains ready to participate and support the government in any efforts to ensure those who identify as transgender are treated with sensitivity, kindness, and compassion; and we welcome a meeting to discuss the above in more detail. Please also contact us if you need clarification on any of the above, from our EDI Committee, SAGDA Section, or Board of Directors; or if we can be of further help in achieving these goals.
Respectfully,
CANADIAN BAR ASSOCIATION
ALBERTA BRANCH
Robert D.L. Bassett, President
cc. Hon. Demetrios Nicolaides, ECA, Minister of Education
Hon. Adriana LaGrange, ECA, Minister of Health
Hon. Joseph Schow, ECA, Minister of Tourism & Sport, Government House Leader
1 Family Law Act, S.A. 2003, c. F-4.5, ss. 21, 21(5) and 21(6)
2 Family Law Act, S.A. 2003, c. F-4.5, ss. 18
3 Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched. 1, s. 4
4 Kevin A. McLemore, “Experiences with Misgendering: Identity Misclassification of Transgender Spectrum
Individuals” (2015) 14:1 Self and Identity 51; Kevin A. McLemore, “A Minority Stress Perspective on Transgender
Individuals’ Experiences With Misgendering” (2016) 3:1 Stigma and Health 53; Stephanie Julia Kapusta,
“Misgendering and Its Moral Contestability” (2016) 31:3 Hypatia 502; Florence Ashley, “Qui est-ille ? Le respect
langagier des élèves nonbinaires, aux limites du droit” (2017) 63:2 Service social 35 at 37-38. KC Clements, “What
Does It Mean to Misgender Someone,” Healthline (19 October 2017).
5 Vital Statistics Act, 2007, SA, 2007, c V-4.1, s. 15(5)
6 Vital Statistics Act, 2007, SA, 2007, c V-4.1, s. 30