Charter Challenges Of An Anti-Transgender Law

This is part of a series on potential paths of legal challenge for anti-transgender laws in Canada: 

1. Anti-Transgender Laws Are Jim Crow Laws
2. Legal Challenges of an Anti-Transgender Law

In the first post of this series, I claimed that anti-transgender laws are in many respects about segregation and humiliation much like the racist Jim Crow Laws were.  Yes, I realize that the US legal environment is quite different from Canada's - the point here is to draw a comparison that I think is broadly understood by most. 

In this post, I will explore several avenues through which the law can in fact be challenged, both in the presence of, and in the absence of, the invocation of the NotwithStanding Clause (S33).  

Countering The Law 

Charter Challenge Options

I want to be clear here:  in my opinion, none of these challenges are mutually exclusive, and each must be considered with respect to a particular law to determine if the challenge applies. 

Challenges under S2 and 7-15

All of these challenges are within the purview of S33 to override them.  That said, they are all relevant arguments, not to be simply swept away by a government invoking S33.   

Freedom of Expression and Association (S2)

S2 of The Charter reads as follows: 

2 Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

These are very broad freedoms, and they can be used in some circumstances to challenge the validity of anti-transgender laws - especially those that attack transgender people for carrying on in their daily lives.  

For example, a law aimed at banning drag could well be argued as an unreasonable infringement on S2(b).  Similarly, a law passed in Alberta in 2019 which effectively banned Gay-Straight Alliances in schools could also be argued as unreasonably infringing on students' rights under S2(d) in particular.  

Legal Freedoms (S7-S15)

Legal freedoms is a rich vein under which anti-transgender laws can be challenged.  These laws are vulnerable under any number of arguments under S15, but also under S7.  

There are two primary areas of challenge here - the first is under S7, the second is of course S15. 

S7 reads:

7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

There are several scenarios where S7 becomes relevant here.  First, as the SCC ruled in R v Morgentaler, security of the person limits the right of the state to make legislation which interferes with a person's health.  This applies both to matters such as medical interventions related to gender identity as well as laws which would impair a person's health in the short or long term such as a "bathroom ban".  

I would go a step further with both of those and argue that based on my earlier post about "Jim Crow" laws that anti-transgender legislation in general violates S7's "principles of fundamental justice" clause as well.  In other words, the purpose of those laws being to isolate and segregate transgender people violates the principles of fundamental justice.  

S15 reads:

15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.  

The SCC has generally acted to "read in" minority groups not explicitly mentioned in S15(1).  The fundamental principle of interpreting The Charter in a manner beneficial to minority groups being a significant aspect of how The Charter is intended to be used.  That in general terms means that laws which unnecessarily infringe upon the rights of any minority are bound by a principle of "minimal interference necessary to accomplish the policy goal".  When the goal is simply to eradicate an entire minority, there is no "minimal interference" line, and that renders the laws themselves invalid under S15 as well.  

S15(2) reads as follows: 

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

While one might expect that the application of 15(2) is moot in a situation where S33 has been invoked, that certainly does not mean that the Alberta government won't try to apply it here.  They would likely argue that their intent with this bill is to ameliorate the condition of women in gendered space, and that it is necessary in order to protect women from the presence of male predators in these "vulnerable spaces".  

However, there are some very straightforward counter-arguments to this.  First, there are already extant laws that deal with such situations, ranging from voyeurism to indecent exposure laws.  This law is redundant.  Second, the law itself makes implicit assertions about a subclass of people based on characteristics unrelated to the impugned actions.  Both of those points weaken the "urgent necessity" for such a law. 

The government could argue that "women experience discomfort when there is a transgender person in the space".  The problem with that is no other law holds the "perpetrator" responsible for the feelings and reactions of others in the course of going through their lives.  Is a person with a bunch of tattoos responsible for the reactions of others who might believe that "people with tattoos are violent"?  No, of course not, nor is there any evidence that people with tattoos are violent.  

Section 26 of The Charter:

26 The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.

Section 26 is the foundation upon which S15 is read expansively, and becomes a very important section when we are talking about the rights of transgender people.  Again, its presence in The Charter should give the courts a significant pause when looking at laws like those that Alberta is passing to attack transgender people.  

S33 Overrides All This, Right?

The provinces want you to believe that.  I'm not so convinced.  As I've written about previously, the current case before the SCC regarding S33 seems quite likely to relegate S33 to the status of "emergency power".  Having spent a fair bit of time reviewing both the arguments of the provinces and the position put forth by the Attorney General of Canada in that matter, I believe the Attorney General of Canada has put forward a compelling argument that there are legitimate limits to the application of S33, and that a failure to acknowledge those limits would effectively render The Charter moot in our laws.  

I can't tell you when that ruling will come down, but when it does, I expect there to be considerable gnashing of teeth and wailing by certain provincial governments.  

However, if you read on, there are several additional angles of attack which could be brought to bear even if S33 is deemed to be "legitimately invoked" regarding laws which restrict transgender people's rights. 

Gender Equality Challenge (S28)

Section 28 of The Charter reads: 

28 Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.

 I think there are several ways in which these laws violate S28 of The Charter through perverse consequences.  Even if the law is written such that it includes both transgender women and transgender men, there are perverse consequences that are inherently contradictory to this clause of The Charter.  

a). It places an unreasonable burden mostly on female persons to prove that they are "genuinely female".  This could extend to having to carry copies of birth certificates, birth records, or other documentation.  

b). It presupposes that there is a "normal" presentation and in doing so, places an unreasonable burden upon anyone who does not fit that profile to be prepared to "prove" their sex when challenged.

c). If the law is written in such a way that it encompasses transgender men, it creates a situation where a transgender man is theoretically required to use the designated female washroom, while at the same time subjecting them to having to repeatedly prove that they should be in that space "by law".

In other words, in its effort to segregate transgender people from "gendered spaces" appropriate to their identity, the law would unreasonably impact cisgender users of those spaces who are allegedly being "protected" by the law.  

In practical terms, it creates an environment where women are subjected to increasing scrutiny based on appearances.  If you are too "much" anything that is broadly outside the societal norms for female (or more correctly feminine), then you may find yourself facing a huge amount of scrutiny every time you do something as minor as use a public washroom.

This would mean that such a law does violate S28 of The Charter.  

S6 Mobility Rights Challenge

I talked about this a bit in Novel Arguments For Challenging Anti-Transgender Laws In Canada.

This relies on understanding S6 of The Charter, which reads: 

6 (1) Every citizen of Canada has the right to enter, remain in and leave Canada.
Rights to move and gain livelihood 

(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right

(a) to move to and take up residence in any province; and

(b) to pursue the gaining of a livelihood in any province.

Limitation
(3) The rights specified in subsection (2) are subject to

(a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and

(b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.

Affirmative action programs
(4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.

In particular, the argument here revolves around S6(2).  The right to move and live "in any province" in Canada would be significantly impaired by such a law in any given province.  The impairment here is that for one class of Canadian Citizens, they would have substantially restricted rights to access public services - the impact of which could be quite significant, ranging from creating an inability to access public washrooms in parks to in some circumstances making attending post secondary classes more difficult, especially where there are only multi-user washroom facilities available in a given building or floor of a building.  These are not trivial impairments, but in fact could create actual health impacts as well.

The effect of such a law would be to discourage people who are transgender themselves, or have transgender family members from moving to Alberta, and for transgender people living in Alberta, it becomes a significant incentive to leave the province.  In effect, a perverse consequence of the law is an implicit impairment of rights guaranteed under S6(2) of The Charter. 

There are a couple of possible avenues where the Province might argue against this position.  First would be to claim that S6(3)(a) applies.  The second argument would be to try and extend S6(4) to apply, or even argue that the law is protected under S15(2) of The Charter.  We will explore each of these in more detail.

S6(3)(a) Limits on Mobility Rights

S6(3)(a) states: 

(a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and 

The Province could attempt to argue that the "bathroom bill" is a "law or practice of general application".   However, even in a situation where S33 has been invoked, you can ask the court to consider how the law violates rights held under both S7 and S15 of The Charter.  There is a "knock-on" effect here because this law subjects a portion of the population to specific discrimination on the basis of assumed characteristics.  Legislating on a characteristic (being transgender) creates a situation where you are making the person a criminal for existing.  Just as homosexuality laws were ultimately a gross injustice, anti-transgender laws are similar.  When a province legislates to shove people out of society on the basis of a characteristic the intent of the law no longer can be narrowly interpreted. 

While invoking S33 does insulate a law from direct challenge under sections 2, and 7-15 of the Charter, it does not insulate the law from scrutiny for impairment of other rights.  

Closing Notes

These are the primary avenues which can be used to challenge a law attacking transgender rights and autonomy using The Charter.  At some point in the future, I may attempt to build up the body of relevant case law which would buttress the lines of reasoning presented here.  In particular, I think the combination of a coherent argument that helps the court understand the exclusionary purpose of these laws in conjunction with a mobility rights challenge could well turn out to be the legal approach which brings these kinds of laws down.

It is important to note that while this post is focused on different aspects of The Charter, there are other types of legal challenge which can be brought to bear in challenging these laws.  I will talk about those in another post.  

The underlying point here is that while it may feel hopeless in the face of provincial governments that seem indifferent or hostile to transgender issues, there are avenues of law which can bear fruit in terms of challenging these abuses of power.    

Anti-Transgender Laws Are "Jim Crow" Laws

This is part of a series of posts sketching out legal paths for challenging anti-transgender laws in Canada.

1. Anti-Transgender Laws Are Jim Crow Laws
2. Charter Challenges of an Anti-Transgender Law

Laws do not exist in a vacuum - the cleverest of legal arguments are often decoupled from the human experience and day to day lives of people.  Therefore, laws must be understood in the context of the society in which they exist, as well as the legal frameworks in place. 

"Jim Crow" laws were laws passed in various states to create a segregation between white people and people of colour in the United States.  These were the laws that forced black people to sit at the back of the public transit bus, or required them to use specific bathrooms (sound familiar?) or drinking fountains.  They also enabled businesses to refuse service to people based on such characteristics. 

I would hope, that in today's world, such laws are seen as the injustices they are - laws designed to target people based on characteristics - humiliating, segregating, and ultimately criminalizing their existence.  In today's Canada, S15 of The Charter specifically prohibits that kind of legislation.  

Anti-transgender laws are, in this writer's opinion, very much the "new Jim Crow" laws.  Largely they are based on ginned up fears of the "dangers" that the targeted group represents for society.  I'm going to walk through why these laws should be invalidated in Canada, and I will do so by deriving a possible test that could be used to objectively identify a "Jim Crow" law, regardless of whom is targeted. 

The Smith Referenda In October

Albertans face a daunting prospect on October 19 - not one, but 10 referendum questions that they will vote on.  On the agenda are a passel of manufactured issues ranging from "control over immigration" to "appointing judges", all topped off with a whipped turd froth of a separation question. 

There are good reasons to be skeptical of all of these referendum questions.  Not the least of which is the complexity of them.  Each one is lengthy reading on its own, and is crafted to confuse the average person reading them.  My intuitive reaction is to suggest that on the basis of the wording being less than clear, that it is utterly appropriate to vote 'No' on the first 9 questions and "A" on the separation question.   That is basically voting for status quo. 

The Formation of The UCP Sowed The Seeds of Its Failure

When Jason Kenney created the UCP he set up the preconditions for the party to get to where it is today, and its eventual demise.  What do I mean by this?  Kenney may have believed that he could control the extreme elements in the UCP in much the same way that Harper did so as leader of the CPC. 

Harper allowed the extremist factions in the CPC to exist and even to have something of a voice in the party, but at the moment that a given push looked like it would have a political cost for him, he would shut it down.  This was done through a combination of tools - Harper exercised considerable personal control over the party apparatus.  That meant that in large part, if you kept him happy, your career was secure.  The leader's office had the power to quash constituency decisions such as new nominees, and the "public face" of the party was carefully protected.  So, while the extremist wings of the CPC could make a certain level of noise - it was never enough to do more than keep their followers believing the party was aligned with them.  

However, Harper was able to do this because the Federal CPC is a much bigger entity than the UCP in Alberta - and although the Prairie Reform rump of the party clearly dominates it today, the party needs votes from outside the Prairies in order to have any hope of ever forming government.  Harper understood this, and was very careful to keep the extremes in check even though his own leadership depended on them. 

A party of the scale of the UCP is a much different animal, and that's where Kenney's choices failed. 

The Clarity Act and Alberta's Tricksy Question

This October, Albertans will vote on a referendum question that arguably rivals the word salad that René Levesque imposed on Quebeckers in 1980 for obfuscation and confusing wording: 

“Should Alberta remain a province of Canada or should the Government of Alberta commence the legal process required under the Canadian Constitution to hold a binding provincial referendum on whether or not Alberta should separate from Canada?”

I have seen a number of people argue that because Alberta's question does not directly entertain separation, that the Clarity Act does not apply.  I beg to differ.  I think that not only does the Clarity Act apply, but that there is a compelling set of arguments the can be made that would require principles similar to The Clarity Act to apply to all referendums in Canada.

An Exhausting Week In Alberta Politics

This week has been a whirlwind in politics, especially in Alberta. On Thursday, the Premier of Alberta announced what I can only call a farce of a referendum on separating Alberta from Canada.  Then the next day, Premier Smith started talking about rewriting S35 of The Constitution.  

The referendum question Smith proposes is annoying in its obfuscating language, and I think Albertans should be incredibly angry about it.  The question reads: 

“Should Alberta remain a province of Canada or should the Government of Alberta commence the legal process required under the Canadian Constitution to hold a binding provincial referendum on whether or not Alberta should separate from Canada?”

Reasonably intelligent readers should have already noticed this isn't a "yes/no" kind of question, it's actually two conflicting questions slammed together.  Rumour has it this will be a "select option A or option B" thing on the ballot, but that is still misleading and disingenuous because the second option actively contemplates separation, while simultaneously trying very hard not to look like it does.

Separatists Lose In Court

Alberta's rump of separatists suffered a major setback last week, when a judge overturned the Chief Electoral Officer of Alberta (CEO-A) decision that set the signature gathering process for the "Stay Free Alberta" petition.   If you're interested, the full ruling is here (warning: it's lengthy, and full of legal technical language).

I'm not going to spend a pile of time here dissecting the ruling - while I understand most of what's written in it (I think), a deep dive would be tedious and relatively uninteresting.  At the end of it all, the ruling has the net effect of rendering the entire signature gathering process that has gone on since January this year to be a legal fiction which "never happened".  

How does that work?  Central to the judge's ruling is the declaration that the decision of the CEO-A to grant the petition was "unreasonable", and that the crown had failed to execute any kind of consultation with affected First Nations, therefore the decision itself was quashed.  In doing so, the judge effectively turned the next 4 months of signature gathering into a legal ghost - the paper exists, but the authorization to gather those signatures doesn't and therefore the signatures themselves cannot be considered. 

This is unlikely to be the last we hear of this nonsense though.