Alberta’s transgender law returned to court Tuesday, with government lawyers arguing the legislation is grounded in science and keeps children safe.
The law bars youth under 16 from receiving hormone therapy and puberty blockers. It’s being challenged by groups representing transgender youth, who are asking the courts to temporarily suspend the law pending a hearing on its constitutionality.
The groups argue the law violates the Charter because it denies medical care.
Government lawyer David Madsen told court that’s not the case, as hormone therapy is not considered medically necessary.
“This Charter challenge will fail,” Madsen told Justice Allison Kuntz. He argued that the province is protecting at-risk youth from making life-altering decisions at a vulnerable stage of their lives.
“The polarized atmosphere surrounding this topic is exactly why Alberta has elected to follow the science and all the more reason to show deference to the legislation,” he said.
Madsen also argued scientific consensus around gender-affirming care is “rapidly shifting” and described the government’s approach to be precautionary in light of that uncertainty.
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The judge reserved her decision on the injunction to a later date.
Alberta became the first Canadian province to enact the legislation that prohibits LGBTQ2 youth from receiving gender-affirming medical care.
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Premier Danielle Smith’s United Conservative Party government passed the law last year, but it has yet to be fully proclaimed and put it into legal effect. The province has not said when that might happen. A prohibition halting gender-affirming “top” surgeries for minors came into effect in December.
Two LGBTQ2 advocacy groups, Egale and Skipping Stone Foundation, are seeking a court injunction. They have called the government’s action unprecedented, saying it’s unconstitutional to deny medical care on the basis of being gender diverse.
Lawyers for the groups and five unnamed transgender children, ages six to 11, presented their arguments Monday.
Adam Goldenberg, a lawyer representing the applicants, disputed many of the government’s arguments, including its assertion that the injunction application is premature because the law hasn’t been proclaimed.
“It would defeat the purpose of the injunction, if (transgender youth) actually had to be suffering the irreparable harm that the injunction seeks to enjoin,” Goldenberg said.
The law is one of three affecting transgender people that were passed in Alberta. The second, which is not being challenged in court, requires children under 16 have parental consent if they wish to change their names or pronouns in school.
The third bans transgender athletes from competing in female amateur sports and requires schools and organizations to report eligibility complaints.
Smith has said she’s confident the new restrictions fall within the Charter and would withstand a legal challenge.
But if the challenge is successful, Smith has said she would use the Charter’s notwithstanding clause. The clause allows governments to override certain Charter rights for up to five years.
“I hope it wouldn’t come to that. But for sure, we would,” Smith said on her radio show in December.
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