Court battle brewing between Alberta government and LGBTQ2 organizations over Bill 26

Egale Canada, Skipping Stone and several families in Alberta have united to initiate litigation against the government of Alberta challenging the constitutionality of Bill 26.

The controversial bill, which denies medically necessary care from being provided to gender diverse youth in the province, passed on Dec. 5, 2024. The decision to initiate litigation was announced Saturday morning in a press release.

“The actions of the Government of Alberta are unprecedented. Never before in Canada has a government prohibited access to gender affirming health care,” said Kara Smyth, partner at McCarthy Tétrault and co-counsel to lawyers from Egale.

The litigating party asserts that Bill 26 violates the Charter rights of gender diverse young people in Alberta; specifically, their section 7 right to security of the person, their section 12 right to be free from cruel and unusual treatment, and their section 15 right to equality.

“Governments should not be interfering in medical decisions that young people and parents have a right to make alongside doctors and health care professionals,” Smyth said. “The draconian measures imposed in Bill 26 run directly counter to expert guidance and evidence, violate the constitutional rights of 2SLGBTQI people, and will lead to irreparable harm and needless suffering.”

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The group also believes Bill 26 violates the newly amended Alberta Bill of Rights, including the right to equality and the right to not be subjected to, or coerced into receiving, medical care, medical treatment, or a medical procedure without consent.

Dr. Victoria Bucholtz, from the TransAction Alberta coalition, says the Alberta government has disregarded expert guidance and evidence as well as the voices of Albertan families. The coalition believes the policies use fear and disinformation to target a small and vulnerable part of the community: 2SLGBTQI young people.

“We’re asking her (Premier Danielle Smith) to stop, she has ignored that plea and the UCP caucus has forced through an unpopular piece of legislation that does not help the community,” she told Global News.

“Because the premier and the province have refused to listen to the vast majority of us… we are left with no recourse but to take them to court.”

Professor Eric Adams of the University of Alberta Faculty of Law said the announcement isn’t surprising and he believes the litigating party has “potentially very strong arguments.”

“You don’t win the case by yelling louder, you don’t win the case by pounding your fists, you win the case with evidence and arguments, so courts will be looking very carefully at the evidence,” Adams told Global News during an Skype interview.

“Beyond the words, what do the studies say, what do experts say, what does medical literature say.”

Adams says the Alberta government could eventually invoke the notwithstanding clause, which offers a protective shield against court decision, but he says they haven’t yet attached that clause to the legislation.

“So, the stakes are high,” Adams added.

Premier Smith recently said she doesn’t believe she’ll need to invoke the notwithstanding clause to shield the three transgender bills from legal challenges.

When Global News reached out for comment from the province, the Minister of Justice’s senior press secretary Chinenye Anokwuru provided this statement: “Alberta’s government carefully considers the rights of Albertans when drafting legislation, and we believe this legislation strikes an appropriate balance. As this matter is now before the courts, it would be inappropriate to comment further.”

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