A Calgary court has lifted an injunction that previously blocked the enforcement of Alberta’s controversial Bill 9, banning doctors from providing gender-affirming care to minors. Justice Kuntz wrote the unanimous decision after hearing oral arguments between attorneys on each side. This important decision comes on the heels of the province’s use of the notwithstanding clause. This move further constrains the courts’ already limited ability to challenge the legislation’s constitutionality.
The ban will now be allowed to go into full effect. The legislation bans youth under 16 years old from receiving puberty-suppressing medication and all other gender-affirming care. This ruling is an important milestone and victory for the dozens of families involved. They have been waiting for years to provide care for their transgender children.
Court’s Rationale Behind the Decision
Justice Kuntz emphasized that the court had no choice but to intervene, as the government used the notwithstanding clause. This action really removed the legal basis for the injunction. This new clause gives the government the ability to pass legislation that violates rights protected by the Canadian Charter. Yet, these laws will not enjoy immediate judicial review.
“The legal premise for the injunction no longer exists, and as a matter of constitutional imperative, the injunction must be vacated,” – Lawyer for the province
In particular, Kuntz responded to advocates’ concerns that ostracizing vulnerable youth would do them harm. He stated, “Having issued the injunction, I can appreciate Egale’s concerns regarding irreparable harm to a vulnerable group of youth.” However, even with this recognition, he affirmed that the government is within its rights to seek its position under Section 33 of the Charter – the notwithstanding clause.
“But the fact is that under Section 33 of the Charter, the government is entitled to disagree with the court’s ruling on those issues,” – Kuntz
That reasoning has received vitriolic backlash from advocacy groups like Egale Canada and Skipping Stone. These charities would be happy to modify their lawsuit. In particular, they seek to counter novel arguments that they contend reach beyond the province’s authority and thus can’t be shielded by the notwithstanding clause.
Impact on Trans Youth and Families
Amelia Newbert, a representative from Skipping Stone, testified to the potential harm the ruling poses to transgender youth, saying it is dangerous. She stressed that this is the most stressful time for many trans youth to be going through. Much of this stress is experienced when they face physical changes that are incongruous with their gender identity.
“Parts of access to care can be legislated away, but nobody can legislate away trans people,” – Amelia Newbert
Newbert further illustrated that a lot of families have been eagerly awaiting access to this kind of care. The ban’s impact on those families will be catastrophic.
The ban does not apply to youth under the age of 16. Furthermore, anyone who began hormone replacement therapy or puberty suppression therapy before moving to Alberta will continue to be exempt, even if they filled their prescriptions after the ban was implemented.
Legal Responses and Future Actions
Given the significance of this ruling, Egale Canada and Skipping Stone shared their intention to seek further novel arguments in court. Their application asks for leave to go further and argue these problems that they claim go beyond what is permitted within provincial authority.
Adam Goldenberg, a lawyer from McCarthy Tétrault LLP representing Egale Canada, called for restraint in the rapid implementation of the ban. He cautioned, “Don’t let the toothpaste out of the tube.” He strongly impressed upon us that we only need a small amount of time to make our case on the application.
Heather Jenkins, a spokesperson for Alberta’s United Conservative government, verbally sparred to defend Bill 9. She stated that it “preserves the choices of children and youth” while ensuring fairness and safety in competitive sports.
“Alberta’s United Conservative government will be unapologetic in our commitment to these principles,” – Heather Jenkins
Along with many advocacy groups across the country, we’re preparing for further legal challenges. Their hope is that public attention will shift away from eroding the rights and well-being of transgender youth.
