Two LGBTQ+ advocacy organizations along with a group of five children and their parents have begun legal action against one of Alberta’s recently passed transgender bills, alleging it breaches Charter rights in three respects.
Bill 26 — the Health Statutes Amendment Act 2024 — was one of three pieces of government legislation passed in the fall sitting regarding transgender policy. It aims to prohibit health-care professionals from performing any gender-affirming surgery on minors 17 and under.
Egale Canada and Skipping Stone say the legislation denies medically necessary care from being provided to gender-diverse youth and violates Charter rights to equality, security of person, and freedom from cruel and unusual treatment.
“The policy measures that the premier proposed early this year and then pursued to the legislature last month are ill-advised and will cause serious harm to the tiny population of gender diverse young people in the province,” Egale Canada director Bennett Jensen said in an interview.
“It’s such a tiny population. It makes sense that the majority of the population may not understand what is best for this tiny population.”
The five children who will be listed as applicants in the lawsuit are from across Alberta and range in age from six to 12 years old, and are therefor formally represented by their parents in the litigation.
There were 7,305 transgender persons, and 5,170 people who identified as nonbinary among Alberta’s population of 4.3 million, according to the 2021 census.
‘There’s almost a terror’
The group filed an originating application in Court of King’s Bench in Calgary late Friday with the documents expected to be formally filed in the same court early Monday.
They allege the bill violates the recently updated Alberta Bill of Rights, specifically equality rights as well as the right to not be subjected to or coerced into receiving medical care, medical treatment, or a medical procedure without consent unless that individual is likely to cause substantial harm to themselves or others.
Jensen said they hope to secure an injunction against the Act and that the lawsuit was necessary to prevent the harm the policies would cause.
“They don’t know how they would continue to live if they were forced to have changes happen to their body that aren’t right for them,” he said of the children, adding the new policies would harm their parents as well.
“There’s almost terror. You can see a slow-moving train coming for your children.”
Skipping Stone managing director Amelia Newbert accused the government of acting directly counter to expert guidance and introducing “policies that use fear and disinformation to target a small and vulnerable part of the community.”
Jensen said challenging Bill 26 was an immediate priority given its ban on surgeries came into effect right away with new restrictions on puberty blockers and hormones to come into effect soon after.
He said the organization will have more to say on the government’s two other trans bills — which require parental notice of pronoun changes and restrict trans women’s participation in sports — at a later date.
Bill given Royal Assent on Thursday
Government MLAs voted Bill 26 through third reading on Tuesday and the legislation received Royal Assent two days later.
In a statement, the office of Justice Minister Mickey Amery said the government “carefully considers the rights of Albertans when drafting legislation, and we believe this legislation strikes an appropriate balance.” It declined further comment given the case was before the courts.
In introducing the legislation on Oct. 31, Smith described it as a guardrail that would “protect the future choices of minors who identify as transgender or who are experiencing gender dysphoria.”
The legal action was anticipated to come throughout the week and Smith was asked Wednesday about a potential lawsuit and if her government would invoke the Charter’s section 33 notwithstanding clause, which allows certain rights to be suspended for a five-year period.
“I don’t want to prejudge the court,” Smith told reporters. “We will put forward a robust case — that this (legislation) is reasonable in a free, democratic society, that it’s evidence-based, and that we’re protecting children and their right to be able to make adult decisions as adults.”
— With files from Cindy Tran and The Canadian Press