Alberta's Anti-Trans Legislation

So, now that the UCP has rolled out their anti-trans legislation, we can take a long look at it.  Yesterday, they tabled 3 related bills and earlier in the week they tabled their amendments to the "Alberta Bill of Rights".  I'm not the fastest read of law, and I suspect that some of the legislation has been created to tangle the courts up.  So ... this is probably part 1 of a series.  

Anyways, let's dive in.

How The UCP Is Lining Up To Steal Your Healthcare (and Rights)

Things are beginning to line up in terms of the UCP's plan and we can see now how they are going to attack health care and Albertans.  There's quite a sequence of things here, but the picture they paint when you draw it all out is quite interesting - and not in a good way interesting.

An Attack On One Is An Attack On All

As we move from the summer doldrums to the fall political season in Alberta (and Canada in general), there are some things we need to talk about.  Specifically, we need to talk about the concept of rights - both as they exist in legislation and the spirit of that legislation in contrast with the legislative plans of certain politicians. 

When we talk about rights, we tend to think about legislation that enumerates those rights for us. In Canada, that is primarily the Charter of Rights and Freedoms (The Charter), although there is also an older Bill of Rights that is now subservient to the Charter, and a range of court rulings that build upon the framework of the Charter of Rights and Freedoms. Similarly, provincial legislatures have often implemented their own rights legislation frameworks, such as Alberta’s Human Rights Act.

The first point is that these acts all make provision for Individual rights.  That is to say, they set out the boundaries of what we can reasonably assume to be true both in practice and in legislation in terms of our interactions with the state, and to some degree our interactions with each other.  The Charter is an interesting document for several reasons - first, it doesn’t describe “absolute rights”, but instead its first clause stipulates that the rights may be circumscribed by “reasonable limits” as set out in legislation.  In terms of understanding the Charter, this is hugely important because it tells us that rights in Canada have limits and we can expect those limits to be set out in legislation.  Second, it also hints at the idea that our individual rights exist in a degree of tension with each other.  So, for example, while we have a right to “Freedom of Expression”, that right exists only to the degree that its exercise does not unreasonably impinge upon the rights of another individual. 

The Charter does not establish a clear hierarchy of rights.  That is to say, the order in which rights appear in the Charter does not inform us in any way whether any one right supersedes or can override a later right - they are all “equal”.  The only thing the Charter establishes in terms of “hierarchy of rights” is the notion of individual rights being more important than collective or group rights.  

Attacks On Rights

Recently, we have seen numerous proposals to legislatively attack the rights of minorities.  Specifically, transgender youth, and drug addicts here in Alberta.  In January 2024, Premier Smith proposed a sweeping group of policy and legislation that attacks transgender youth on numerous fronts. Further to that, the proposals being made for a “recovery focused” addictions treatment program which includes forced treatment. 

In both cases, you might look and argue that these are “reasonable limits” on rights.  After all, how can a youth or child “consent” to something as life changing as gender reassignment, right?  I have seen arguments that addicts cannot provide consent when they are in the throes of active addiction.  To the extent that such statements are true, one can see them as “reasonable limits”.  The issue is that the extent to which they are true is very limited.  

The fact that the Alberta Government is already talking about using the “Notwithstanding Clause” (S.33) to insulate its legislation from Charter scrutiny is a clue that they already know that it won’t stand up to a court challenge.  Invoking S.33 is essentially an admission that they know that these laws are invalid under The Charter, and they open those who are being targeted by them to discriminatory treatment not merely within the framework of the legislation, but in other aspects of their lives as well. 

What Happens If These Laws Stand?

This is where the slope becomes very slippery indeed.  If provinces (or the Federal Government) are allowed to slap S.33 on anything they please, they will effectively render The Charter moot. It suddenly becomes trivial to revoke or severely restrict rights simply by invoking S.33 to “protect” any piece of legislation that the legislature passes.  

If a legislature decides that it doesn’t like the idea of women being able to vote, they can simply pass a piece of legislation that revokes that right, or makes it much harder for women to meet the criteria to be eligible to vote.  Invoke S.33 to protect it, and presto! Your rights have just disappeared back to the 19th Century.  

It’s easy to set the precedent with small, poorly understood populations like transgender people or drug addicts.  Once the precedent has been set, it’s very easy to extend it to other topics.  Poilievre has already alluded to doing similar things in the realm of criminal justice at the Federal level.  

An attack on the rights of one group can very quickly expand into being the erasure of rights for all.  Just because you aren't affected doesn't mean that you won't be. 

Alberta's Proposed Trans Policy

It's been 3 days since Premier Danielle Smith dropped a bomb on Alberta's transgender community, and I'm still reeling.  I'm alternating between being angry with the government, and grieving for the youth that will be most deeply affected by these policies. 

Before I dive into a deeper analysis of what Premier Smith announced, and my thoughts about it, I just want to say to my readers who are not themselves transgender, and may be looking at this as "well, this seems reasonable":  Ask yourself how you would feel if your access to treatment, social validity, and activities were arbitrarily legislated away?  Because that's exactly what's being done to transgender people (not just youth) here. 

Now, onwards into the policy bundle that Premier Smith announced on Wednesday.

Prentice's Bill 10: A Legislative Trojan Horse

There is little doubt that the Prentice government is getting its ass handed to it on the editorial pages of newspapers across Canada with respect to its hastily written Bill 10 counter response to Liberal MLA Laurie Blakeman's Bill 202.

After looking at Bill 10 for a little while, I have come to the conclusion that this is far worse than being a simple ham-fisted counter-response to Bill 202, it is in fact a legislative Trojan Horse which will create enormous problems in Alberta for years to come ... at least until someone has the political spine to remove S11.1 and a couple of other clauses that are being slipped in.

Let's take a closer look at how Bill 10 will change Alberta's Bill of Rights, shall we?

Off the top, the government wishes to amend S1 of the act.  Before Bill 10, S1 reads as follows:

Recognition and declaration of rights and freedoms
1 It is hereby recognized and declared that in Alberta there exist

without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely:


(a) the right of the individual to liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;

(b) the right of the individual to equality before the law and the protection of the law;

(c) freedom of religion;

(d) freedom of speech; 

(e) freedom of assembly and association;

(f) freedom of the press.

After Bill 10, this will read as follows (emphasis added to changes):

Recognition and declaration of rights and freedoms
1 It is hereby recognized and declared that in Alberta there exist

without discrimination by reason of race, national origin, colour, religion, sex or sexual orientation the following human rights and fundamental freedoms, namely:


(a) the right of the individual to liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;

(b) the right of the individual to equality before the law and the protection of the law;

(c) freedom of religion;

(d) freedom of speech; 

(e) freedom of assembly and association;

(f) freedom of the press.

(g) the right of parents to make informed decisions respecting the education of their children. 

Please note, this is not the Alberta Human Rights Act, but the more foundational BILL OF RIGHTS. Section 2 of the Bill of Rights legislation clearly states that all other legislation in Alberta is assumed to operate in compliance with this act unless specifically stated to do so.  In other words, the Bill of Rights is one step removed from the Constitution in terms of legal hierarchy.

Whose bright idea was it to slide in clause (g)?  A clause like this will be used by the religious wingnut factions to object to everything from sex ed in schools to teaching evolution in biology classes.  This is a broadening of the effect of Section 11.1 of the Alberta Human Rights Act (a different piece of legislation that Minister Blackett amended in 2009.  This will open the door to lawsuits the likes of which we usually hear about coming out of Texas, Kansas and Oklahoma.

Section 11.1 exits the Alberta Human Rights Act, but it is far from dead and gone.  Instead it resurfaces in the Education Act as Section 58.

Section 58 exists under the rubric that there is some kind of "parental right" not to have their kids learn about sexuality.  This is nonsense.  It was nonsense in 2009, and it's nonsense today.  As a parent you have an obligation to your children to ensure that they are educated and literate.  There is no "right" to keep your children ignorant about their own bodies and sexualities.

By adding clause (g) to the Alberta Bill of Rights, the Prentice Government has not only reinforced S58, but in fact has opened up every aspect of Alberta's education system to being challenged by anyone who "objects" to some aspect of the curriculum for one reason or another.

It will also place a chill on teachers as a whole, who will find themselves basically threatened with rights challenges at every turn.

Bill 10 does precious little to protect LGBT youth in our schools, as its provisions for the creation of GSAs (and other student led bodies) is such that the obstacles to appeal are far greater than most students would have the ability to effectively enact an appeal of their school's decision, much less taking said appeal up to the level of the provincial courts.

Instead, it further reinforces the worst aspects of what the Stelmach government did to the Alberta Human Rights Act in 2009, and deepens a set of legislative clauses which are a sop to the narrow-mindedness of a small group of Albertans who seem to think that their religious beliefs have something to say about how children should learn.

Revisions:

3/12/14 11:24   Corrected link to Alberta Bill of Rights instead of Alberta Human Rights Act

An Open Letter To Jim Prentice

Dear Mr. Prentice,

In responding to MLA Laurie Blakeman's Bill 202 as you did, you have just thrown LGBT students under the political bus AGAIN.

Let me be abundantly clear here.  Clause 11.1 one of the Alberta Human Rights legislation does not "protect" the rights of anyone.  It creates an environment where teachers are afraid to talk freely about sexuality that isn't straight "missionary position heterosexual".

By allowing for a "conscience exemption", you force teachers to go running to parents for "permission" to  talk about these topics.  Guess what?  That sends a message to students that being LGBT is somehow "bad" or "illicit" - something to be ashamed of.  Surely in today's world we know better than that.

Parents who wail and moan about their right to "protect" their innocent little child from these "evils" are doing nothing more than propagating their own ignorance and discomfort with matters of sexuality.  They aren't going to have an honest discussion with their children about sexuality, they're going to repeat the very narrow viewpoint that they have, which is often informed not by facts and rational evidence but by religious doctrine.  Remember, the vast majority of the discrimination and hate that is aimed at LGBT people in our society has its roots in religious dogma.

Yes, as parents they are free to teach their children whatever religious dogma they wish at home.  They are not free to deny their children free and open access to objective, evidence-based knowledge.  Schools which object to students giving each other moral support through mechanisms like Gay-Straight Alliances do so not because they have a religious objection with any validity.  They do it out of fear that their particular little narrow viewpoint of the world is somehow threatened by treating all of society's citizens as equals.

The rights and safety of LGBT Albertans are no less rights than the religious freedoms of Albertans or those of parents.  A child growing up gay in a religious home has the same right to a safe place at school that acknowledges their sexual identity as real and valid as a straight child.

It isn't hard to guess the political calculation that went into this decision.  You looked, smelled blood in the water from the Wild Rose party's recent disasters and decided to throw LGBT students under the political bus in hopes of securing a little more the religious vote that had gone over the WRP in the last several years.

Using students as a political football is appalling enough.  Doing so with students who are part of a tiny minority population is reprehensible, Mr. Prentice.

I urge you to pass Bill 202 in its full form as it stands today.  Man up, and do the right thing by LGBT students in this province, and take steps that remove discrimination from the system.

Sincerely,

Parochialism Is Alive And Well In Alberta

Apparently Minister Blackett hasn't bothered to read or understand the legislation that gives the AHRC its mandate.

The minister responsible for the Alberta Human Rights Commission says a complaint about an anti-gay letter to a Red Deer newspaper should never have gone before the commission.

"It's not there to mediate hurt feelings caused by some words or not," said Culture Minister Lindsay Blackett. "If it's hateful, then that's a hate crime. And that's something for the Crown attorneys and the police services to investigate.

"But the goal of the commission is to make sure people are protected against discrimination where they work, or access to accommodation, access to government services."

Uh huh. Sure Minister Blackett - checked the contents of the legislation? The part where it talks about publishing hate literature would be a good place to start.

"If it's hateful, then that's a hate crime. And that's something for the Crown attorneys and the police services to investigate.

Ah yes - but the amendments that included sexual orientation in our hate crimes laws federally didn't exist until well after 2002. So, what Mr. Blackett is in effect saying is that there should be no recourse whatsoever. I wonder what will happen if he tries to remove those clauses - which also protect other minorities who are regularly attacked by violent hatred?

Boissoin's letter was a thoughtless piece of drivel that called on society's worst elements to commit violence against GLBT people, and repeated many slanderous allegations about GLBT people that do not bear up to scrutiny.

Surely, the concept of freedom of speech doesn't grant someone the blanket right to make such claims without being held accountable for the consequences?