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A couple of weeks ago, an Alberta judge issued an interim injunction stopping the Alberta ban on medical transitioning for minors from going into effect. This marks the first time that a court in Canada has weighed in on medical transitioning for minors.
Alberta’s Bill 26, the Health Professions Act, passed last year, banned puberty blockers and cross-sex hormones for minors under 18 to treat gender dysphoria. Egale and the Skipping Stone Scholarship Foundation, described in the decision as “two leading 2SLGNTQI organizations,” as well as five children (aged 6 to 12) who claim to be transgender, and their parents challenged the legislation. They asked the court to strike down the law as violating the Charter rights to security of the person and equal protection under the law.
The Alberta justice did not issue a final ruling on the constitutionality of the law. Rather, she found that there are serious constitutional issues to be resolved at trial, and that the prospect of harm to the applicants justified an interim injunction, preventing the law from taking effect before the case is fully resolved.
The advocates in favour of medical transitioning argued that gender identity – a person’s internal sense of their own gender – is fundamental to their personal identity. And yet their personal identity cannot be entirely realized without puberty blockers. Specifically, withholding puberty blockers, the court ruled,
Will have a serious and profound effect on the psychological integrity of transgender and gender diverse youth because it will: (a) take away medically necessary gender affirming care for gender incongruence and gender dysphoria; (b) take away a young person’s option to delay puberty (and the associated stress and fear) so that they can have more time to consider their gender identity and options; (c) subject them to the irreversible changes associated with puberty, which may result in more difficulty transitioning at a later date; (d) deny gender diverse young people autonomy over their own bodies; and (e) make it more likely that others will identify them as trans, increasing the risk of bullying, discrimination, violence, depression, suicidal ideation and self-harm.
Since when does the “security of the person” include a right not to go through puberty? Will future cases find that Canadians have a right not to age in other ways too? Aging – or going through puberty – is not an experience that the government forces on people. They are natural, normal parts of the human lifecycle.
If there is any violation of the security of the person at issue here, it is medical transitioning. The Alberta government pointed the court to the Cass Review, and the UK’s subsequent ban on medical transitioning for minors. Alberta also noted, in defense of its law, that:
- Gender dysphoria in childhood often resolves after puberty
- Gender dysphoria is a “social contagion” that is responsible for the sharp increase in the number of minors with gender dysphoria in recent years
- “Gender-affirming care” is experimental and not medically necessary
- Medical transitioning does not lead to better health and functioning
- Medical transitioning leads to substantial and serious harms to fertility, sexual response, brain development, bone density and more
- Meaningful informed consent is impossible for children
- Psychotherapy is a better intervention than medical transitioning
Egale and company dismiss or minimize these risks by claiming medical transitioning in Canada is done carefully and always follows international guidelines. But the claim that Canadian doctors are slow to prescribe puberty blockers or hormones seems unlikely given that 62% of children and young adolescents referred to gender clinics were provided with hormones on their very first visit. And yet, the justice opines that there is a serious threat to the security of the person in restricting access to medical transitioning.
She also found that a ban on medical transitioning may violate the equality provisions of the Charter, a finding that diverges from that of a recent US Supreme Court decision/. The judge opined that gender identity is an immutable personal characteristic and that people who identify as gender diverse are “undeniably a marginalized group in Canadian society.” Both parties in the American case, however, admitted that gender identity is not immutable, but can change over time. Also, the US Supreme Court did not find a history of legal discrimination against people who claim to be transgender, and so they found that a ban on medical transitioning was not discriminatory. Although a powerful rhetorical and political argument, the existence of detransitioners demonstrates that gender identity is not immutable.
But there is more to this case than just disputes over science and rights. A much broader clash of worldviews and ethics is involved too. One of the expert witnesses on the pro-medical transitioning side was Dr. Palmert, a co-founder of the Transgender Youth Clinic at the Hospital for Sicks Kids in Toronto. In his opinion, “efforts to change a youth’s gender identity are harmful and unethical and should not be undertaken.”
Let Kids Be holds a different position: efforts to change a youth’s sexual identity (through medical transitioning) are harmful and unethical and should not be undertaken. A person’s sex (male or female) is immutable, even if his or her body can be medically manipulated to appear more masculine or feminine.
At the end of the decision, the Alberta justice grants the injunction because it “is necessary to ensure that Albertans under the age of 18 who want medical treatment are not denied the protection of their constitutional rights while the case works its way through trial.”
This case demonstrates just how deeply entrenched medical transitioning is among Canadian institutions and how much work is left for Let Kids Be to do. Although most Canadians want limits on medical transitioning for minors, most politicians, journalists, professional associations, and perhaps judges are firmly in favour of the practice. We need to keep up the work to advocate for society to let kids be.