Alberta’s United Conservative government invoked the notwithstanding clause four times to shield legislation from judicial scrutiny under the Canadian Charter of Rights and Freedoms. It did so, first, to override teachers’ right to strike and order them back to unsustainable working conditions. Then it did so to violate the rights of transgender youth to access medically necessary gender-affirming care and to transition socially in schools; as well as the rights of transgender women and girls to participate in sports that align with their gender identities.
In each case, the government steamrolled over Albertans’ constitutional rights in darkness and with limited debate in the legislature.
It’s all part of a rapidly coalescing authoritarian trend in Canada’s conservative heartland, one that has seen Alberta cabinet ministers, and even Premier Danielle Smith herself, disparage Canada’s system of constitutional checks and balances, which affords the courts an important role in reviewing legislation that potentially violates Canada’s supreme law. This includes introducing legislation to try to limit judicial review of a proposed referendum on separation.
With everything that has happened these past few months, there are plenty of good reasons to doubt whether the courts are going to be able to reign in an Alberta government hellbent on shattering Canada’s constitutional order. But while I find myself increasingly pessimistic about anything approaching reliance on the judiciary to get at the root of anti-trans hatred, in particular, court challenges remain a powerful tool to combat specific instances of legislative violence.
With Alberta making disturbingly frequent resort to the notwithstanding clause to void Charter rights, however, we’re going to need to get creative if our court challenges are going to succeed.
Here comes federalism
Shortly after Alberta passed amendments to its anti-trans laws to shield them from judicial scrutiny, Egale and Skipping Stone—two organizations coordinating the legal challenge to the ban on puberty blockers and other forms of gender-affirming care—announced that they would be seeking to amend their litigation documents to advance new constitutional arguments.
In addition to arguing that the court-ordered injunction already in place to prevent the Alberta government from enforcing this transphobic ban should continue, the organizations plan to argue that the legislation contravenes the constitutional division of powers between the federal and provincial governments—otherwise known as Canada’s system of “federalism.”
The argument here is pretty straightforward.
The Constitution Act, 1867, gives the federal government the exclusive power to legislate in respect of the criminal law. Provinces like Alberta simply aren’t allowed to do that. And, importantly, provinces can’t get around this prohibition by invoking the notwithstanding clause—that section of the Charter doesn’t apply in any way, shape, or form.
So, if Alberta’s ban on gender-affirming care is a criminal law, it is “ultra vires”: a fancy, legal way of saying it is not within the province’s power to lawfully enact.
In my opinion, this argument has a lot going for it.
Wait a second…
You’re probably wondering how the Alberta government could possibly be enacting a new criminal law if it isn’t amending the Criminal Code. After all, isn’t that a pretty complete statement of what is criminal and what is not? And isn’t it plain and obvious that Alberta’s gender-affirming care ban doesn’t touch that law?
Well, not so fast.
When you’re doing a federalism analysis, there are a few steps you need to follow. These were outlined in the seminal Supreme Court case of R v Morgentaler (1993), which concerned abortion access.
First, you need to clarify the law by accurately characterizing its “matter” and then figuring out which of the legislative powers listed in the Constitution that matter falls within. A law’s “matter” is sometimes known as its “pith and substance.” It basically amounts to a description of the overriding purpose or aim that the law is trying to achieve.
Second, you need to examine the law’s “purpose and effect,” both legally and practically. What rights does the law restrict, and how might this capture the purpose of the legislation? What is the larger social context that has given rise to the law, and what will be the law’s long-term impacts when it is actually applied?
Third and finally, you need to define the scope of the relevant legislative power you’re arguing a particular piece of legislation falls within, in order to determine whether the legislation is within the constitutional purview of the provincial or the federal government.
Once you’ve done all of this, you’re in a position to say whether a law is ultra vires the legislative body that enacted it.
Moralism by any other name
So, what happens when we follow these steps with respect to Alberta’s ban on gender-affirming care?
In pith and substance the law has as its dominant purpose the restriction of a particular set of practices that the Alberta government views as morally wrong or, as Egale is putting it, “socially undesirable.”
We know this because of the social circumstances that have given rise to Alberta’s legislation as well as the practical impacts of the prohibition it enacts.
We are living through a time of widespread moral hysteria over the ability of youth and adults to access gender-affirming care. Myths about the so-called “irreversible damage” that that care allegedly causes are being peddled by anti-trans activists and influencers. And conservative members of Alberta’s legislative assembly rehashed those myths and pandered to that hysteria in their speeches in support of the gender-affirming care ban. As the Minister of Municipal Affairs put it, falsely, in his address on December 9, “We have young girls … that are being treated to chemical hormones for irreversible damage to absolutely essential parts of their human dignity, including the ability to have children in the future.”
In practice, what the law does, then, is restrict the ability of trans youth to access the medical care necessary to manage their gender dysphoria; and thereby increase the likelihood that those youth will die, including by suicide, before they can mature into adults. As I’ve written before, it’s all part of a concerted effort by anti-trans activists and legislators to erase the transgender community altogether by eliminating our community’s future.
To all this important context for the gender-affirming care ban we should add in its actual, legal language and purpose: The law prohibits a particular kind of medical care and imposes penalties like fines and imprisonment for those who violate the prohibition.
The Supreme Court has already held that a provincial government that bans a medical procedure (like abortion), imposes penalties on those who violate the ban, and does so for a moral purpose is unconstitutionally infringing on the federal government’s exclusive authority to enact criminal laws. It’s a fairly settled point.
There’s no reason to think the courts will look on Alberta’s gender-affirming care ban any differently.
Which means, there is still a way to get this transphobic law struck down—the notwithstanding clause be damned.
Watch out, Alberta: Federalism isn’t through with us, yet. If Alberta wants to legislate transphobic violence, it just might have to separate after all.
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