People protest Alberta Premier Danielle Smith’s proposed youth transgender policies as she appears at an event in Ottawa on Monday, Feb. 5, 2024.PATRICK DOYLE/The Canadian Press
In a rare move, the Canadian Medical Association will file a constitutional challenge Wednesday alongside three Alberta doctors against the province’s legislation that limits access to medical treatment for transgender youth.
The national advocacy organization, which represents more than 75,000 physicians, is venturing into new territory by taking a provincial government to court. The CMA says it had no choice but to step in to guard the relationship between patients, doctors and families in making treatment decisions.
Alberta’s Bill 26, which became law last December, prohibits doctors from prescribing puberty blockers and hormone therapies for those under 16. It also bans doctors from performing gender-reassignment surgeries on minors (those under 18) – an already rare occurrence in the province.
On Wednesday, the CMA will submit a judicial challenge to the Court of King’s Bench of Alberta, arguing the legislation violates doctors’ Section 2 Charter right to freedom of conscience.
The organization calls Bill 26 an “unprecedented government intrusion” because it requires physicians to follow a law rather than clinical guidelines, the needs of patients and their own conscience.
It will be the second legal challenge against Alberta’s transgender legislation. The first was filed last December by advocacy groups Egale Canada and Skipping Stone Foundation and families with gender-diverse children that allege the law violates several Charter-protected rights and contradicts Alberta’s own Bill of Rights.
Dr. Joss Reimer, president of the Canadian Medical Association, says government restrictions on medical decisions puts doctors in a difficult position where they have to choose between what’s best for their patients and following the law.JOHN WOODS/The Canadian Press
CMA president Joss Reimer said the law has created a “moral crisis” for physicians and it affects patients’ ability to make medical decisions in consultation with their family and their physician.
She said doctors see individuals in their offices who are vulnerable and who have experienced challenges, adding that an “ideological influence” does not help the patient.
“When governments get involved and start restricting medical decisions, that means that doctors are then put into a position where they have to choose between following their ethical standards, following what they feel is best for their patients, or following the law,” Dr. Reimer said in an interview.
The legislation is part of a trio of laws passed in Alberta that affect transgender people – also in classrooms and sports – that together form the most restrictive legislative package in Canada dealing with gender, sexuality and identity. Premier Danielle Smith has come under widespread criticism for the measures, from transgender advocates and medical experts in Alberta and beyond.
The Alberta government has yet to comment on the CMA’s legal filing because it will be made in court on Wednesday. It declined to comment on the earlier legal action last year, citing it was before the courts.
The United Conservative government has defended Bill 26 as a measure to protect the health and safety of Alberta youth, who Ms. Smith has argued are not able to “fully understand” the risks associated with gender-affirming treatments. The Premier, when the legislation was tabled last October, also contended that doctors do not always make the right decisions for care.
Calgary doctor Jake Donaldson says the legislation puts trans youth at risk for more harm.Sarah B Groot/The Globe and Mail
Calgary-based physician Jake Donaldson, a co-applicant with the CMA, who provides gender-affirming care to about 40 youth, said Bill 26 puts an already-vulnerable group of people at risk for more harm. These individuals already face significant and disproportionate rates of discrimination, violence and mental-health challenges.
“If they are able to blend into society and move around in a body that aligns with their gender identity … they are safer and they are happier,” said Dr. Donaldson, who also served as a witness in Egale’s case.
“It’s just this massive impact on quality of life that we can fix if we were able to support these folks through their initial puberty, at the point of adolescence.”
Dr. Donaldson said he and other doctors are experiencing moral injury when they are at risk of being reprimanded for providing gender-affirming care to their patients. He estimates fewer than 20 physicians prescribe hormones for youth in Alberta.
The legislation, he said, “commands physicians to stand on the sidelines and watch them suffer.”
The CMA’s Dr. Reimer said her organization wants to work with government to repeal the law. It is important “politicians are not making medical decisions,” she added.
Those decisions, she said, should be made based on the best science, along with what an individual patient needs, adding this can only happen between a patient and provider.
“We don’t want to see any laws that are restricting medical decision-making because science evolves over time,” she said.
The Premier has said she would be willing to invoke the notwithstanding clause, which is a rarely used mechanism that allows government to override certain sections of the Charter of Rights and Freedoms for up to five years, as a “last resort.”
This could shield Alberta from legal action, though Ms. Smith has said she is confident it won’t be necessary, arguing the legislation is reasonable, proportionate and evidence-based.
