Alberta argues against trans health legislation injunction, says drugs 'not medically necessary'
Legislation would prohibit puberty blockers, hormone therapy for those under 16
A lawyer for the Alberta government says the province and, in particular, Premier Danielle Smith has "concern and compassion" for the LGBTQ+ community and that legislation banning certain gender-affirming treatments for children under the age of 16 is "protecting the health, safety and long-term choices" of youths.
Government lawyer David Madsen told Justice Allison Kuntz on Tuesday there is no constitutional right for gender-diverse youth to use hormone drugs and they are "not medically necessary."
A day earlier, opponents to the legislation argued that withholding medical care from adolescent Albertans is a violation of their Charter rights.
The province's new legislation — which received royal assent in December but has yet to be proclaimed — is being challenged in court by Egale Canada, Alberta's Skipping Stone Foundation and the families of five gender-diverse Alberta youths.
Once proclaimed, the law would prevent doctors from prescribing puberty-blockers and hormones to youth under the age of 16.
Premier Smith said in December the bill is necessary to protect children's fertility options in adulthood.
The first step in the court action is an injunction application which, if successful, would see the court protect access for gender dysphoria or gender incongruence (GDI) youth to continue to receive gender-affirming treatments while a judge considers the applicants' Charter challenge to the new provincial legislation.
The government has not said when the law would come into effect and its lawyers argued the injunction application is premature.
On Monday, the applicants argued it is unconstitutional to deny medical care to a specific group of Albertans and said it is a violation of the Charter right to equality.
Lawyer Ljiljana Stanic told Justice Kuntz there is "compelling, clear, non-speculative evidence" that withholding gender-affirming health care will cause irreparable harm through "unwanted, irreversible bodily changes."
On Tuesday, lawyers for the province had their turn to argue before the judge.
The Cass review
Madsen said the science on the issue of health care for gender-diverse youth is "rapidly evolving."
"The applicants are advocates for a certain position in this debate," said Madsen. "Alberta is an advocate for following the science."
"[The Act] is a precautionary response to scientific uncertainties and harms and was introduced against a backdrop of a rapidly shifting scientific consensus and international reforms."
The provincial government relies, in part, on the Cass review — a contentious 2024 examination of gender-affirming care for youth in England, commissioned by England's National Health Service.
Its findings led to a ban on prescriptions for puberty-suppressing hormones.
The ban moved away from the standard of care supported by international medical bodies, including the Canadian Paediatric Society, the American Academy of Pediatrics and World Professional Association for Transgender Health.
Several European countries, including Sweden, Finland and Australia, have also restricted access to puberty blockers and other gender-affirming treatments for youth.
The author of the report said demographics have changed and now include more youth with complex mental health needs as well as more who are neurodiverse.
The report also said the ideas around gender are also shifting, with more young people seeing gender as fluid rather than binary.
Notwithstanding clause
Smith has previously expressed confidence that her government's bill will withstand the Charter challenge but said the notwithstanding clause is on the table as "a last resort." The clause is a constitutional measure that allows a government to override certain Charter rights for up to five years.
A ban on gender-affirming "top" surgery for youths is already in effect as part of Bill 26.
The bill is one of three transgender laws the government seeks to implement.
Justice Kuntz is likely to reserve her decision on the injunction application.
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