To my surprise, Bill C4 made it through parliament in record time. Personally, I think this is a good thing. However, I also know that Social Conservatives and Gender Critical factions will ally with each other to challenge the legislation in the courts.
I suspect there was an agreement drawn up in the CPC caucus to allow the bill through with a minimal amount of fuss because they have finally figured out that pushing attitudes that go back to the 1950s probably isn't going over well with Canadian voters. In a minority parliament, the last thing a party that has lost 3 elections in succession wants is to be tainted again with various members engaging in bozo eruption moments over a hobby horse issue.
However, let's put political strategy aside and take a look at the likely avenues of attack that will be used in the courts to argue that Bill C-4 is either too broad, or overly intrusive into the lives of Canadians.
There are a number of lines of reasoning that could be used to attack Bill C-4 in the courts, although whether any of them can hold up to scrutiny is another matter entirely. I'm going to outline some of them here, and explain the limits of the argument.
"Why Can't An Adult Seek This Treatment?"
This argument rests primarily on the idea that an adult should be able to access any treatment that they wish, even if it is deeply damaging to them. That's true up to a point. We regulate many things to ensure that the product or service is fundamentally safe for the consumers.
I imagine that the lines of challenge here will be based on concepts embodied in the Charter including security of the person (S7), and freedom of religion and conscience (S2). The difficulty for this challenge will be to show that it violates the "reasonable limits" clause of S1.
Is it unreasonable to prohibit a practice which has no evidence that it actually works, especially when that same practice can actually result in psychological trauma?
To me, this is fundamental to the issue: we have a practice which simply does not work in the first place, so ethically speaking, it's already in the grey zone, if not outright "don't do this at all" for practitioners. If it's already ethically problematic, then I don't have a big problem seeing it made illegal.
As far as matters of conscience and religious freedom go, I find it similarly hard to be sympathetic to those claims. By far the majority of people who access "conversion therapy" do so for religious reasons, which usually means that they are responding to enormous social pressure and potentially ingrained self-loathing. On this grounds, I find the idea of "consent" deeply questionable.
Can a person who has been subjected to such conditions actually consent to undergo a potentially harmful treatment model? I would argue that it's similar to the impact of consent to sex when one is intoxicated - their judgment is arguably suspect. Self-loathing is a hugely problematic issue here because it means that the person may not be sufficiently objective about their situation to form consent. (and yes, again, practical ethics around obtaining consent are also big issues for practitioners).
"As Written, This Law Makes It Illegal To Talk About Sexuality"
Fundamentally, this argument holds less water than my kitchen colander.
You see, there's a fundamental difference between talking about matters of sexuality or gender identity and trying to effect someone changing their identity.
I would certainly argue that telling someone that their sexuality or gender identity is "sinful" (or worse) is the most uncompassionate thing you could say. Especially if it's to your own child. Nobody is saying that you can't talk about what your faith tells you about such matters. Hauling them off to a therapist or to a camp to "fix" what you deem to be "wrong" or "sinful" is what is now being made illegal.
Again, the fundamental rule here is that you don't have a right to tell someone else who they should be, or what that means. Your child is a person becoming whole over time, not a possession to be "fixed". The real conflict that emerges here is that within certain (often religious) circles, children are seen as possessions rather than developing human beings.
*As an aside, telling your newly disclosed offspring that they are going to burn in hell for all eternity for being gay might just be the thing that destroys the relationship with your child.
"What About Treatment of Transgender Children?"
This one is by far the most difficult topic to examine. Partially, this is because transgender youth are a relatively new subject, and also because a great deal of misinformation about what "affirmative treatment" means has been fostered.
The arguments will no doubt revolve around the rather murky idea of desistance. There is a study out there that has been read as meaning "if you force a transgender child through puberty, they will stop being transgender". This is contradicted by numerous studies involving puberty blocking medications where the vast majority of subjects go on to cross-sex hormones and social transition.
There is a lot of argument as to which interpretation is correct, and we have limited data to work with on both sides of the claim. My personal suspicion is that a lot of "desisters" actually end up transitioning later in life and put their transition plans aside as a response to pressures within their family environments (there's probably 2 or 3 good PhD topics in that statement).
However, we should not mistake this discussion with that of conversion therapy. Conversion therapy is intrinsically coercive. I don't care if it is a child or an adult involved, coercive models are fundamentally wrong. We can address the treatment needs of transgender children without coercion. Support the child, let them explore their identity and they'll come to their own conclusions in due course. Don't tell me "they're too young" - that's just nonsense - most people have a pretty well-formed gender identity by the age of 4 or 5, the fact that a few have an identity that makes others uncomfortable is not the child's fault.
Legally, is there any merit to this argument? Not really. The legal conceptualization of this idea would run smack into som very ugly questions about where the line into abuse is crossed.
(Disclaimer: I am not a lawyer, nor do I practice law in any form. This article is written exclusively for the purposes of thinking through the issues. If anything I touch on applies to you in some legal capacity, please consult with an appropriately qualified legal professional)
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