Alberta Challenges the Gender Identity Establishment
Alberta Challenges the Gender Identity Establishment
A Review of the Legislation Package
The government of Alberta has just introduced a package of legislation dealing with issues around gender identity. The intention of the legislation is to put tight restrictions on medical gender transition of minors, protect the female category in sports and put some controls on the teaching of human sexuality, sexual orientation and gender identity in schools. Premier Danielle Smith announced her intention to introduce the legislation at the end of January of this year and since then the government has engaged in extensive consultation with interested parties.
The Legislation
Sports
Bill 29, the Fairness and Safety in Sports Act has been promoted as legislation to ensure that women and girls have the right to compete in biological female only divisions. The intent of the legislation is sound. The science is clear that males have a decisive advantage over females in almost every sport and this advantage is not eliminated by reducing testosterone levels in transwomen. The government is following recommendations of the United Nations Special Rapporteur on Violence Against Women and Girls and is consistent with policies that have been adopted at the international level by rugby, athletics, aquatics and cycling. Special credit should go to Alberta’s own Linda Blade who as President of Athletics Alberta, took a firm stand to protect female sports in the province.
While the intent is good, the implementation is clumsy. The bill does never actually says that women and girls have a right to a female only category. Instead, it creates a bureaucratic framework which is intended to be filled out by detailed regulations for each sport. The act also contains some ambiguous references to both mixed sex and mixed gender leagues.
There is a simpler way to approach this problem without getting the government involved in micromanaging every sport. I suspect that the majority of cases where males are allowed into female sports happen not because the organizers think it is right but because they are afraid of a human rights complaint if they refuse. The most efficient solution would be to amend the human rights act to provide that nothing in the code prevents sports teams and competitions from determining eligibility to compete in a designated female category on the basis of sex (which should be clearly defined as biological) rather than gender identity. Once it is clear that sporting bodies are legally free to maintain sex-based categories, pressure from female athletes and their parents should do the rest.
Furthermore, there is a risk that without changes to the Alberta Human Rights Act to provide more explicit protection for sex categories in sport, any new policies could be overturned by a human rights tribunal. The is a particular risk in Alberta because the human rights act substituted the word gender for sex. It should be a priority to amend the human rights act to make it clear that sex and gender are different and that sex is biological, binary and immutable.
Healthcare
The changes on healthcare are contained in Bill 26 the Health Statutes Amendment Act, 2024 (no.2). There is an absolute ban on “sex reassignment surgery” on a minor. This is defined to mean a list of operations if used to treat “gender dysphoria or gender incongruence.” The list of procedures can be added to by regulation. The wording of the section is intended to exclude procedures performed for other purposes such as the treatment of cancer.
The bill also prohibits a regulated member from prescribing puberty blockers or cross sex hormones to a minor except in accordance with an order of the minister. The press release accompanying the legislation says that regulations will not permit puberty blockers or hormone therapy for children age 15 and under unless they have already started treatment but would allow minors ages 16 and 17 to commence puberty blockers or hormones with parental or psychologist approval.
The legislation would be enforced by professional discipline proceedings by the applicable professional regulator.
The proposed restrictions are less rigid than the absolute bans found in many American states and are close to the policies adopted by the NHS in England in response to the Cass Review. The main difference is that there is no exemption which permits use of puberty blockers in a research study, but that could easily be created by regulation.
Education
The changes regarding education are included in Bill 27 the Education Amendment Act, 2024 which covers a variety of issues such as dealing with a future health care emergency. A press release provides further background.
Schools will not be able to change the preferred name or pronouns of a students aged 15 or under without parental consent. Parental consent is not required for name and pronoun changes for students ages 16 and 17 but the parents must still be notified. If a parental notification is expected to result in psychological or emotional harm, the school must provide the student with support or assistance before notifying the parents.
The legislation requires that all teaching resources and external presenters on gender identity, sexual orientation and gender identity must be approved by the Minister of Education. This kind of restriction is sadly necessary to get rid of books that cross the line into explicit pornography and ideological indoctrination sessions by organizations with a poor grasp of child development and safeguarding principles.
The bill also requires that where students are provided with teaching or instructional materials that “deal primarily and explicitly with gender identity, sexual orientation or human sexuality” parents must be notified 30 days in advance and given an opportunity to opt-in to this instruction. Students whose parents do not consent must be provided with alternate instruction.
The legislation applies only to materials that deal “primarily and explicitly” with sexual orientation, gender identity and human sexuality and permit “incidental or indirect” discussion of these topics by teachers without advance notice to parents. These exemptions are probably unavoidable, since it would be very hard for teachers to avoid any discussion of sexuality in subjects like biology and literature at the more advanced grade levels. However, they also create a massive loophole which supporters of gender ideology will certainly exploit since they are already pursuing explicit policies of embedding discussions of gender identity in every subject.
The only real antidote to bad education on sexuality is good education. The government needs not only to get the SOGI 123 program out of schools but to inoculate children against this kind of indoctrination by introducing a curriculum which is science based, age appropriate and genuinely inclusive of all sexual orientations, gender identities, cultures and religions. This is becoming increasingly difficult as children’s publishing has been almost entirely captured by gender ideology and many good books for children on human sexuality are being re-written to embed ideas from Queer Theory.
What the Government Got Right
While there are some problems with the legislation, Premier Smith handled this initiative well, especially compared to the clumsy initiatives in Saskatchewan and New Brunswick. She announced the forthcoming changes early this year and has spent months in consultations and research. This does not mean that the proposals will not face fierce opposition but at least she seems to have her caucus onside and visible public support, including some from members of the LGBT community.
The legislation does not invoke the notwithstanding clause.1 Since a Charter challenge is a virtual certainty, it is to be hoped that this means that the government is prepared and will not find itself, as Saskatchewan did, scrambling to put together expert evidence on a tight timeline. There is also much more evidence to support the government’s case available now than there was a year ago when the Saskatchewan Charter challenge was heard. We now have the final report of the Cass Review and devastating revelations about the credibility of WPATH from the United States.
Dealing with both healthcare and education as a package will make both easier to defend from challenge. Name and pronoun changes in school are dangerous because they are often a gateway to medical transition. It is much easier to point out the dangers of social transition if you are also presenting evidence on the dangers of medical transition.
Another smart move that the government announced a few days ago was an initiative to provide greater protection for freedom of speech by professionals. Getting professional associations onside is key to the success of these initiatives. This is not something that the government can force but it can help to ensure that the many professionals who do not accept the dominant view on gender ideology are not intimidated from speaking out.
Missing Pieces
The larger problem is that age restrictions on medical procedures do not displace the fundamentally flaw gender affirming model of care. Requiring parental consent to starting puberty blockers and cross-sex hormones does not provide real protection if all of a child’s health care providers insist that there is nothing else they can do to help the child and that delaying medical transition will increase the risk of suicide. There is not much difference in performing a double mastectomy on a young woman with serious, undiagnosed mental health problems at the age of 19 as compared to 17.
The legislation will do some good. Holding off on starting puberty blockers or cross-sex hormones until age 15 will mitigate some of the risks of starting at younger ages and allow more time for natural resolution of gender dysphoria. However, what gender distressed young people really need but cannot get is holistic mental health therapy that addresses all of there problems and is provided by therapists who understand child and adolescent development and are not dogmatically committed to the gender affirming care model.
There are three obstacles to providing this kind of holistic mental care and the provincial government has very little control over two of them. The first is the shortage of therapists who are trained in dealing with gender dysphoria through anything other than the affirming care model. Change here is difficult because it requires working with and through universities and professional associations who are still very much in thrall to transgender activism.
The second is federal conversion therapy legislation which is a serious deterrent to any therapist who questions the affirming care model. The province has some flexibility here because the decision to lay charges rests with the Provincial Attorney General.2 It would be possible for the Attorney General’s office to issue a policy statement to the effect that it does not consider exploratory psychotherapy and similar treatments to be conversion therapy. However, this offers only limited comfort to therapists because governments can change and there is no limitation date on bringing charges under the Criminal Code.
The third problem, which the province could do something about, is that many parents have difficulty affording mental health services for their children. However, unless the other two problems are addressed, little good will come of putting money into a broken system.
The problems created by gender ideology cannot be solved by provincial legislation alone. It is embedded in universities, professional bodies, the media and insitutions at a national and international level. The Alberta legislation is not perfect but what any legislation does at this point is subject the proponents of gender affirming care and related ideas to the public scrutiny they have tried so hard to avoid.
This is a provision of the Canadian Charter of Rights and Freedoms that permits a legislature to declare that a law shall operate notwithstanding that it may infringe on Charter rights. The declaration must be renewed every 5 years.
One of the peculiarties of Canadian constitutional laws is that while making criminal law is an exclusive federal power, enforcement is a provincial responsibility.
**Edit: Leslie here. Substack gets us mixed up even though I sign in with my own e-mail address.
I agree that your approach to sport would have been more practical. However, curtailing gender expression as a human right would be a bold political step, even if it was narrowly defined as not extending, as it seems to now, to requiring leagues and venues to allow men to present and compete as women or face a ruinous and effectively undefendable* human rights complaint.
The only politician I have ever heard call for outright removal of "gender" (as distinct from binary sex) from Human Rights Codes is Maxime Bernier. It is that far outside the Overton Window in Canada. Certainly, what you were proposing is not to remove the protection of gender expression entirely. But any ring-fencing of the right to freedom from all discrimination -- saying "not quite" to the premise that a woman is any person who says he or she is a woman -- strikes at the very heart of trans activism. Saying, "A woman is any person who says he or she is a woman.....except when the state says otherwise" is a hill the activists will die on, to quote Chase Strangio of the ACLU (of all things) in calling for book bans. If a right can be circumscribed at the whim of the state, it is not much of a right. (That's why we don't really have freedom of expression in Canada where they do in the United States.) A lot of reasonable people of good will are sympathetic to the idea that trans people shouldn't have to face discrimination because of how they dress or refer to themselves but they, still of good will, say, "except in bathrooms, locker rooms, violence shelters, sports, and prisons." Yet those are the very protections trans activists shout the loudest for. The way you queer society is to attack traditional protections for women right where they are most vulnerable. What are "reasonable limits" to us normies are anathema to the activists.
In sum, I think Premier Smith just may not have the political capital to do the medically important part -- banning hormones for minors -- *and* tackle the larger issue of "trans rights." She won her first election as a sitting Premier with a reduced majority and fewer seats in the two large cities, and faces a leadership review. The NDP is an ever-present threat. She does have to tread carefully. I give her a B+ for this legislation: good enough for grad school (i.e., her government's second term with her as sitting leader.)
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* Why "undefendable"? Because the Courts won't over-rule Human Rights Tribunals on judicial review unless the Tribunal acted "unreasonably." They can be wrong, so long as they aren't unreasonably wrong. So everyone walks on eggs in fear of a human rights complaint. Even if the Justice Centre takes your case, you have to hope they can win at the Tribunal. (That's my take. I'm not a lawyer.)
That’s a great point about making changes to the human rights code to ensure sports bodies are comfortable making eligibility changes. I am surprised that Alberta would directly replace sex with gender as I don’t believe that’s the case for BC which is much more woo about this. I do think though that the threat of a HR case is not the only thing stopping sports bodies from protecting the sex category. The pressure from TRAs can be really fierce. So I personally think some sort of provincial legislation is helpful to ensure that the female category is respected. Thank you for this summary! Very interesting.