Boe v. Marshall in Canada

How will the fallout from a case in Alabama affect Canadian courts?

Photo by Tom Carnegie on Unsplash

The case of Boe v. Marshall which is currently before the United States Federal Court is a turning point in the struggle to regulate paediatric gender medicine. Like the Bell v. Tavistock decision in the United Kingdom, the case will have ramifications that go far beyond its eventual outcome. However, it is questionable whether these ramifications will extend to Canada.

Boe v. Marshall is a challenge to an Alabama state law which banned puberty blockers or cross sex hormones for minors with gender dysphoria. The case is one of many that are working their way through the American courts but what singles it out is a brilliant tactical decision by the Alabama Attorney General. The plaintiffs relied heavily on Version 8 of the Standards of Care of the World Professional Association for Transgender Health in support of their claim that the legislation discriminated against transgender youth by denying them medically necessary care. The state argued that because the WPATH Standard of Care was so central to the case, WPATH should be required to submit to pre-trial discovery. The judge agreed and ordered WPATH to produce e-mails and other documents relating to the creation of SOC8.

What the state found in the huge number of e-mails that were produced was not merely the proverbial smoking gun but a whole arsenal of weapons that could be turned on the credibility of WPATH. The details of the disclosures have been discussed at length elsewhere. The last minute decision to remove age limits from WPATH SOC 8 was made as a result of political pressure from U.S. Assistant Secretary of Health Rachel Levine. The documents also show that WPATH commissioned a series of systematic reviews from Johns Hopkins University but suppressed publication of most of the reviews when it did not like the results. LGBT Courage Coalition has a web page on the systematic reviews with copies of the key documents.

The Attorney General of Alabama has now submitted a summary judgment application which seeks to have the claim dismissed without trial. His motion brief lays out a devastating case against WPATH and the affirming care model in general. A copy of the brief and the supporting documents are available at this web link.

The proceedings in the Alabama case have been stayed pending the decision of the United States Supreme Court in United States v. Skremetti. This is an appeal from a decision of the 6^th Circuit Court of Appeals which denied a preliminary injunction against implementation of a Tennessee law restricting medical transition of minors. Because the Tennessee case deals only with a preliminary injunction and the case has not proceeded to discovery, there is much less evidence on the record than there is in the Alabama case. It has been suggested that one of the reasons why the United States government chose to appeal this case to the Supreme Court is that they wanted the case to be heard before even more damaging information about WPATH to become public. Fortunately, the judge in the Alabama case has allowed the unsealing of discovery documents to continue.

The Attorney General of Alabama has submitted an amicus brief to the Supreme Court which sets out the case that WPATH is an advocacy organization rather than a medical society and that SOC8 is not a reliable clinical guide in detail with backing evidence from WPATH’s internal documents.

The credibility WPATH is not directly relevant in the case before the Supreme Court, which is primarily concerned with questions of law. The legal basis for the challenges to bans on pediatric gender transition is that they violate the equal protection clause by depriving transgender youth of medically necessary care. The main question the Supreme Court will decide is what standard of review should apply.

Under the U.S. equal protection clause, it is possible to challenge any legislation which results in different treatment of different classes of persons. At one time this restriction was interpreted very broadly by the courts to strike down labour and social welfare legislation. For example, the 1905 case of Lochner v. New York found that a law which forbade bakers from working more than 60 hours a week violated the equal protection clause. Today, most legislation is upheld on the basis of rational basis review which requires only that the law serve some legitimate government interest.

However, where the legislation applies to a suspect class, namely race, national origin and religion, strict scrutiny applies. This requires the state to demonstrate that the law serves a compelling national interest, that the law is narrowly tailored to achieve that interest and that it is the least restrictive means for achieving that interest.

Intermediate scrutiny or heightened scrutiny, as its name suggests, falls between the other two standards. It requires that the state show that the law furthers an important government interest and is substantially related to that objective. Courts have applied intermediate scrutiny to discrimination on the basis of sex.

The Court of Appeals in Skremetti found that the legislation in question discriminated only on the basis of medical condition and that the rational basis standard of review applied. The appellants claim that the court should have applied intermediate scrutiny, either because gender identity should be recognized as a new protected class or because the law in fact discriminates on the basis of sex.

The Supreme Court will hear arguments in Skremetti in December and is expected to render a decision by June, 2025. The trial courts will have to apply the Supreme Court decision to the facts of the cases before them. If the  Supreme Court decides that rational basis review applies, it is likely that all of the pending cases will be dismissed. However, if the court finds that intermediate scrutiny applies, the states can still go to trial and attempt to meet this standard.

The evidence from the WPATH documents gives the Attorney General of Alabama a very strong case that the requirements of intermediate scrutiny have been met. Protection of minors from harm is clearly and important interest and medical transition, as recommended under the WPATH guidelines, causes serious harm.

Canada does not yet have any legislated bans on medical transition of minors but the government of Alberta has announced it will be introducing legislation this fall and various advocacy groups have promised to bring a legal challenge. A case is likely to be filed early next year. It will certainly take several years for the case to go to trial and longer for appeals but an application for a preliminary injunction is likely to be heard fairly quickly.

The decision in UR Pride Centre for Sexuality and Gender Diversity v. Government of Saskatchewan, which concerned a policy requiring teachers to notify parents when a child changes name and pronouns, is the one Canadian case that has considered a related issue. (A court challenge to New Brunswick Policy 713 is still in the preliminary stages.) The court found that the plaintiffs had established that the claim that the new policy violated sections 7 and 15 of the Charter raised a serious issue to be tried and enforcement of the policy was likely to cause irreparable harm. This was a sufficient basis to grant a pre-trial injunction against the enforcement of the policy.

The UR Pride case was a motion for a preliminary injunction so the evidence was limited and the judge expressly stated that he was not weighing the strength of the evidence. The case moved very quickly and the government had difficultly obtaining expert evidence. The government responded by using the notwithstanding clause in the Charter to override the court’s decision.

The Supreme Court of Canada has not decided any cases which directly affect transgender rights but some indication of its current attitude can be found in the obiter comments in Hansman v. Neufeld  which refer to transgender people as “among the most marginalized in our society.”

Canadian and U.S. courts approach the issue of equality rights from different starting points. American jurisprudence takes as its starting point the need to protect against any arbitrary exercise of government power. Any law which treats different categories of persons differently is subject to review under the U.S. equal protection clause but, except in cases of discrimination on a suspect ground, the rational basis standard sets a very low bar for justifying the legislation.

Under Section 15 of the Canadian Charter of Rights and Freedoms,  the claimant has the initial burden of proof that the legislation discriminates on the basis of an enumerated ground or analogous ground, which are roughly similar to the suspect categories under U.S. law. The enumerated grounds are race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. The courts have also recognized a limited number of analogous grounds including marital status and sexual orientation.

Once the claimant has proved discrimination, the onus shifts to the government to show that the law can be saved under section 1 of the Charter as a reasonably limit “demonstrably justified in a free and democratic society.” This test is similar to the strict scrutiny test under U.S. law. Subsection 15(2) of the Charter also provides a specific exemption for affirmative action programs.

A Canadian provincial government attempting to justify restrictions on pediatric gender medicine will therefore face the same evidentiary burden as an American state would if the strict scrutiny test applied but would not have the same ability to obtain evidence.

The evidence that was obtained in the Alabama case depended on three things. The first was that U.S. Federal Court rules provide for extensive pre-hearing discovery. The second was that WPATH, the American Academy of Pediatrics and their officers were  resident in the U.S. and subject to subpoena. The third was that the State of Alabama was prepared to spend a lot of money on legal fees. Canadian rules of practice permit pre-trial discovery of third parties only in very exceptional cases and compelling production from foreign residents is difficult. It would be hard to get the extensive evidence in Boe v. Marshall before a Canadian court and as a result it will be easier to maintain the fiction that WPATH is a reliable clinical guide.

The Boe v. Marshall case shows that scientific consensus is a shaky foundation for jurisprudence on fundamental rights. Science and constitutional law make a poor fit. Scientific consensus is constantly evolving. In some cases, as is the case with gender medicine, a consensus turns out to be based on fraud, but even a scientifically sound consensus can be overturned by a single study. Constitutional law, on the other hand, seeks stability. The point of having constitutionally protected rights is to make it difficult to change them through the ordinary political process.

Court procedures are not designed for resolving policy issues which turn on complex and shifting scientific evidence. They are limited to considering evidence introduced by the parties through expert reports. In Canadian courts, only the actual parties may present evidence. Intervenors are allowed at the appellate level but they may not introduce fresh evidence and do not have the latitude allowed in the American amicus brief to discuss broader scientific issues and cite scientific literature. The cost of intervening in a court case is very high and all of the interests which might be affected by a decision are seldom represented. A court will very seldom have the whole range of relevant scientific evidence before it when deciding a case with complex policy consequences. Furthermore, the courts do not have a means of revisiting old decisions as new science emerges.

Legislatures, on the other hand, act on advice from experts in the civil service and are informed by a broad range of public submissions. Legislatures often get things wrong but, unlike courts, they have the ability to correct their mistakes quickly

Courts must frequently make decisions on the basis of limited and conflicting scientific evidence. In order litigation where the result affects only the immediate parties, this is not a major concern. However, in constitutional cases where the result can affect the entire nation and cannot be changed through ordinary legislative process, there is a strong case for judicial deference to the legislature. Unfortunately, Canadian courts seem to be moving in the opposite direction. A decision of the Ontario Court of Appeal recently found that Charter review can be extended to issues of climate policy.

At this point, the prospects for regulating gender affirming care for minors in Canada do not look good. An ill-considered decision could entrench as constitutionally protected rights, medical practices which the rest of the world has rejected as harmful.

However, a court case is some years away and the situation can change rapidly. More evidence is emerging about the dangers of the affirming care model and the corruption of WPATH. Other professional associations with join the American Society of Plastic Surgeons in questioning the affirmative care model. In Canada, a change in government may deny activist groups the federal money they have been using to fund litigation. But by far the best hope, although it is still a faint one, is that the medical profession will rediscover its duty to do no harm and reform the practice of gender medicine without the need for legislative intervention.