(Un)Protecting Children: Refuting Danielle Smith’s Policies on 2SLGBTQ+ Healthcare, Education and Sports

INTRODUCTION

Transgender, gender non-conforming, and two-spirited youth encounter multiple forms of discrimination in Canadian society. The Supreme Court of Canada (the “SCC”) recently recognized transgender people as a marginalized group.[1] Other courts have found that transgender people live their lives facing “disadvantage, prejudice, stereotyping, and vulnerability.”[2] Despite these legal decisions, politicians such as Danielle Smith are seeking to enact policies that further marginalize the 2SLGBTQ+ community by attacking its members’ constitutional rights. Specifically, Smith recently announced that she is seeking to implement a series of policies (which are currently unnamed) that attack 2SLGBTQ+ youth regarding healthcare, education, and sports. After outlining Smith’s proposed policies, the author rejects these policies because they are not only immoral but also unconstitutional.

SMITH’S POLICY ANNOUNCEMENTS: “PROTECTING YOUTH,” BUT NEGLECTING 2SLGBTQ+ YOUTH

On January 31^st, 2024, Smith posted a video on social media explaining her plans to address “gender identity” with new policies. Smith began her announcement with the following statement: “I want every Albertan that identifies as transgender to know I care deeply about you and accept you as you are. As long as I lead this province, I will ensure you are supported, and your rights are protected.”[3] Following this statement, however, Smith immediately announced that she was seeking to implement a series of sweeping and unprecedented policy reforms that contradict her statement regarding caring for and protecting 2SLGBTQ+ youth. The policies are expected to be tabled in the legislature in the next few months, and Smith’s objective is to have them fully implemented before 2025.[4]

The first proposed policy concerns healthcare. Smith announced the following:

1. Gender-affirming top and bottom surgeries for anyone under 18 will be banned;
2. Gender-affirming hormonal treatments, such as puberty blockers, will also be banned, except for those who have already begun hormone therapy;
3. Youth between 16 and 17 years of age will require parental consent to begin hormone therapies.[5]

The second proposed policy concerns education with specific references to classroom conduct. Smith announced the following:

1. Subject matter related to sexual orientation, gender identity, and human sexuality cannot be taught without parental notification and parental opt-in;
2. The Government of Alberta’s Ministry of Education must approve materials related to sexual orientation, gender identity, and human sexuality for those materials to be taught in K-12 classrooms;
3. Name and pronoun changes for students under the age of 16 will not be approved without parental notification and consent;
4. Parents of students between 16 and 17 years old will be notified if their child requests a different name or pronoun to be used at school.[6]

The third proposed policy concerns sports. Smith stated that cisgender girls and women face “unfair disadvantages…when competing with biologically stronger transgender female athletes.”[7] In response to this belief, Smith announced the following:

The Government of Alberta will work with sporting organizations to ensure that cisgender women and girls can choose to compete in “women’s only” divisions that exclude transgender women.[8]

REJECTING DANIELLE SMITH’S STANCE ON 2SLGBTQ+ HEALTHCARE

Smith’s position on 2SLGBTQ+ healthcare is contrary to the position of public medical bodies, scholars, and the courts, and yet she stands by her proposed policies as a way to support “the long-term health care needs of Transgender Albertans.”[9] The proposed policy reforms by Smith would effectively banning gender-affirming healthcare for 2SLGBTQ+ youth, including puberty blockers until the age of 16.[10] Smith attempted to justify these bans with the following rationale: “Making permanent and irreversible decisions regarding one’s biological sex while still a youth can severely limit that child’s choices in their life.”[11] However, puberty blockers have no known irreversible effects.[12] Additionally, it is unheard of for people to remain on puberty blockers forever.[13] To further weaken Smith’s argument, the Canadian Paediatric Society (the “CPS”) notes that puberty blockers are often prescribed in Canada, and access to these medications has been associated with improved mental health, psychosocial functioning, and lower odds of suicidal ideation.[14] The CPS is a national association of paediatricians committed to the health of all children and youth by advocating to all levels of government for legislation, programs, and policy that support children and youth’s well-being and health.[15] Rather than imposing laws based on arguments that have been largely rejected by leading paediatricians, the author encourages Smith to embrace the CPS’ perspective on why gender-affirming healthcare is necessary for 2SLGBTQ+ children and youth.

In addition to puberty blockers, the CPS advocates for all healthcare providers to provide gender-affirming healthcare (including gender-affirming surgery) for all children and youth, including those who are transgender, gender non-conforming, and two-spirited.[16] Furthermore, the CPS notes that gender-affirming care is the standard of care for healthcare providers since it is inclusive of transgender and gender-diverse youth, especially for those with intersecting identities such as racialized and two-spirited 2SLGBTQ+ individuals who encounter immense stigma from healthcare professionals.[17]

It is also important to consider the legal implications of Smith’s proposed policies on healthcare The SCC has affirmed in AC v Manitoba (Director of Child and Family Services) (“AC”) that an adult has a common law right to make decisions about their healthcare, and that that right is essential to their humanity and bodily integrity.[18] With respect to minors, the common law “mature minor” doctrine recognized that children are entitled to a degree of decision-making autonomy that is reflective of their evolving intelligence and understanding.[19] More specifically, the SCC in AC noted that youth should not be “automatically deprived of the right to make decisions affecting their medical treatment”.[20] Instead, the SCC held that youth are “entitled to a degree of decision-making autonomy that is reflective of their evolving intelligence and understanding.”[21] From a legal perspective, 2SLGBTQ+ youth should be able to contribute to healthcare decisions that affect their own body. Smith’s various bans on gender-affirming healthcare therefore violate 2SLGBTQ+ youths’ rights to autonomy and freedom of expression.

Furthermore, Smith’s proposed policies would likely violate 2SLGBTQ+ children and youths’ rights under the Canadian Charter of Rights and Freedoms (the “Charter”). Section 7 of the Charter states that everyone has the right to life, liberty, and security of the person.[22] The SCC has confirmed that security of the person is engaged when state action has the likely effect of seriously impairing a person’s physical or mental health.[23] Additionally, the SCC has confirmed that state action that prevents individuals from partaking in risky but legal activity and taking the necessary steps to protect themselves can also impact security of the person.[24] Therefore, Smith’s outright prohibition on gender-affirming care for youth refuses to adhere to the standard of care and is thus a violation of 2SLGBTQ+ youth’s rights to life, liberty, and security of the person because it will significantly impact 2SLGBTQ+ youth’s physical and mental health.

Section 15 of the Charter provides that every individual is equal before and under the law and has the right to equal protection and benefit without discrimination.[25] In Fraser v Canada (Attorney General), the SCC reiterated that s. 15 protects against differential treatment regardless of whether it is explicitly stated in law or is simply the result of negative effects stemming from the law.[26] Since Smith’s policy solely targets gender-affirming care which disproportionately impacts 2SLGBTQ+ youth’s access to healthcare, s. 15 is triggered as 2SLGBTQ+ youth’s right to equality under the Charter is violated.

REFUTING SMITH’S TRANSPHOBIC POLICY ON SPORTS

Smith’s commitment to work with sports organizations to establish “women’s only” divisions is overtly transphobic and grounded in myths surrounding transgender female athletes. It is important to debunk the myth that transgender women are akin to cisgender men in sports. E-Alliance, a research hub led by academics advocating for gender equity in sports, notes that transgender women are assimilated into the stereotype of a “cheater” who enters women’s competitions with the objective of exploiting a single-sex space reserved for women. This myth is unsubstantiated and ignores the material living conditions that transgender women experience in sports. To begin, it is untrue that transgender women dominate all sports. The fact that transgender women are the subject of numerous media attacks that portrays transgender women as a “threat” corroding women’s sports leagues is used by many politicians to ban their presence in sports leagues.[27]

Smith’s comments implicitly contribute to the discriminatory comparison between cisgender men and transgender women by referring to transgender female athletes as “biologically stronger” than cisgender female athletes, even though her comments avoid explicitly referring to transgender women as “biological males”.[28] Smith’s comments implicitly suggests that transgender women and cisgender men are the same which contributes to the myth that transgender female athletes have a “competitive athletic advantage” over cisgender women. Empirical evidence has debunked this myth, demonstrating that no direct or consistent research suggests that transgender women and girls have an athletic advantage over cisgender women in sports.[29] For example, the higher levels of red blood cell count experienced by cisgender men is removed within the first four months of testosterone suppression in transgender women. This causes a rapid decrease in athletic performance particularly in sports with an endurance requirement. Furthermore, there is no athletic advantage conferred by bone size density, other than advantages achieved through height. Elite athletes typically have higher than average height across genders which is not considered an athletic advantage.[30]  Therefore, the majority of these policies are discriminatory because they ban transgender women from competing in sports leagues with cisgender female athletes simply because they are transgender.

Additionally, Smith’s proposed policy fails to consider the material living conditions and stigmas that transgender women encounter in sports: lack of accessible washrooms and changerooms, violence from the staff, teammates, and the media that may shun them out of sports.[31] Smith’s policy of excluding and erasing transgender women from women’s sports leagues is a clear distinction based on sex and gender identity that solely impacts transgender women. As was previously stated with respect to Smith’s proposed policy related to healthcare, when the state solely targets a specific group with differential treatment rooted in discrimination, s. 15 of the Charter is triggered. Therefore, Smith’s proposed policy regarding sports impairs the right to equality of transgender female women under s. 15 of the Charter.

SMITH’S EDUCATIONAL POLICY ALIENATED 2SLGBTQ+ YOUTH IN SCHOOLS

Smith’s proposed educational policy requires parental notification and/or consent before students’ preferred names and pronouns will be used at school. Not only is this a violation of transgender, gender non-conforming, and two-spirited youths’ constitutional right to gender identity expression under s. 2(b) of the Charter, it causes immense harm to 2SLGBTQ+ youth encountering family violence. More specifically, this policy obliges students to either misgender themselves at school or outing themselves to their families which is alienating and may be incredibly dangerous if their families are abusive or non-supportive.[32] As a result, this policy further violates these youths’ s. 7 Charter rights to be free from state-imposed psychological distress as well as their s. 12 Charter rights to be free from cruel and unusual treatment.[33] Since this policy specifically and solely targets 2SLGBTQ+ youth, their equality rights protected by s. 15 of the Charter are also infringed.

Additionally, Smith’s educational plan prevents 2SLGBTQ+ youth from having access to educational resources that can assist them with understanding their gender identity and sexual orientation.[34] Egale Canada distributed a survey to 2SLGBTQ+ youth, and the results indicated that 90% of transgender students in Alberta experience verbal harassment within schools related to their gender and/or sexual identity, 58% of students found that 2SLGBTQ+ dating and sexuality were never discussed in schools, and that transgender students who could not use their preferred name and pronouns experienced alienation at school.[35] Therefore, Smith’s policy centred around “parental rights” and “protecting children” has unquestionable negative impacts on 2SLGBTQ+ youth in addition to it being unconstitutional.

CONCLUSION

Anti-2SLGBTQ+ discrimination and hate are increasing. Smith’s proposed policies are detrimental to the 2SLGBTQ+ community with disproportionate impacts on transgender, gender non-conforming, and two-spirited people. The author urges the Smith administration to cease the implementation of these proposed policies in order to promote 2SLGBTQ+ inclusivity and belonging in Alberta. It is impossible to “care” and “protect” the 2SLGBTQ+ community when the government actively invades the rights of 2SLGBTQ+ youth through these policies.

ABOUT THE AUTHOR

Brandon Bova is an incoming 3L student at Osgoode Hall Law School. While at Osgoode, Brandon remains committed to community involvement. He is the co-president of Osgoode Hall Animal Justice and vice president of the Osgoode Advocacy Society. Brandon is currently working as a summer law student for Miller Thomson LLP. Prior to joining Miller Thomson, Brandon worked for the College of Psychologists of Ontario in the Investigations & Resolutions Department.

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