Legal experts raise concerns about Alberta's plans for transgender youth

Alberta Premier Danielle Smith arrives for a news conference in Ottawa on Monday, Feb.5, 2024. (THE CANADIAN PRESS/Sean Kilpatrick)

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

The open letter, sent Thursday, was signed by staff at the University of Alberta and University of Calgary law schools.

"We have come together to express our deep concerns with the government's announcement of restrictions targeting transgender youth," says the letter.

“These restrictions will harm two-spirit, trans, and gender diverse children and youth by undermining their education, restricting their access to health care, and narrowing their sport and recreation opportunities.

“We believe these restrictions violate their rights as enshrined in the Canadian Charter of Rights and Freedoms.”

Alberta Premier Danielle Smith has said the fall sitting of the legislature would bring new rules, including restrictions on youth changing their names or pronouns at school, as well as on hormone treatment and surgery for gender affirmation.

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

Smith's office did not immediately respond to a request for comment on the letter.

Jennifer Koshan, a law professor at the University of Calgary, said she and her colleagues wrote to the UCP government because they want to shine a spotlight on the legal aspects to the debate.

"Many of these youth have been speaking out themselves and have been telling very compelling stories about their own personal circumstances and the impact that these policies would have on them," Koshan said in an interview.

"So, we're just trying to add to the discussion with the type of expertise that we can bring forward here, which is the legal expertise that puts all of these issues in the framework of the Charter."

The experts say the proposed changes violate multiple sections of the Charter, including freedom of expression, the right to security of the person, and say the rules may constitute cruel and unusual treatment.

The letter also addresses Smith’s refusal to rule out using the Charter’s notwithstanding clause to push through the changes.

“We believe that it would be wrong for the government to invoke the notwithstanding clause to force through legislation that violates the Charter rights of minors,” said the letter.

The legal experts note the Supreme Court of Canada has recognized the transgender community as a marginalized group in Canadian society.

"Two-spirit, trans, and gender diverse youth are especially vulnerable," says the letter.

"They depend on adults to care for them. Too often, adults in their lives are not prepared to accept and care for them because of who they are. They are bullied. They are subject to violence and gender-based victimization.

"The Charter has a critical role to play in protecting them, given their heightened vulnerability."

The transgender policies have spurred protests — both at the grassroots level and from professional groups such as the Alberta Medical Association.

There was a student walkout at high schools across the province last week to show support to students who would be affected by the policies.

This report by The Canadian Press was first published Feb. 15, 2024.