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).  

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. 

Novel Arguments For Challenging Anti-Transgender Laws In Canada

Since Alberta has decided to make itself the beachhead in bringing an "American-Style" attack on transgender people through legislation that is largely unconstitutional in Canada unless the province invokes The Notwithstanding Clause (S33), I thought I would address some potential arguments that could be used where the Notwithstanding Clause remains an "escape hatch".  

For the most part, the key parts of The Charter which anti-transgender laws violate would be S2, S7, and S15.  These all fall under the scope of S33.  For the purposes of this discussion, I am going to assume that the Supreme Court of Canada (SCC) has not expressed an opinion which substantively limits the ability of provinces to use S33.  

Argument 1:  Section 1 Extends Broadly To Encompass S33

S1 of The Charter enjoins the invocation of S33 is an extension reading of The Charter.  S1 is the so-called "reasonable limits" clause that allows the legislature to pass laws which infringe upon the rights guaranteed in the rest of The Charter, "within reason".  

Unjust Laws and Restricting Rights Unnecessarily

Alberta has already begun restricting transgender rights, and in the wake of the shooting in Tumbler Ridge this week,  I fully expect that the UCP government will move to further restrict transgender rights in Alberta - there's already plenty of noise on various conservative discussion forums demanding "action", and if there's one thing that Danielle Smith is good at, it is doing her party's bidding when it is at its most loathsome.  

I have spent considerable time analyzing those laws, and at best they are ill-thought out reactionary responses to imagined problems rather than actual issues.  However, in a country where politicians can legitimately override rights by invoking the Notwithstanding clause, what can we the public do to undo the damage done by a reactionary government?  

Bill 9 and Smith's Justification For Invoking S33

 Over at the Government of Alberta website, we have the government's propaganda piece trying to justify using S33 to stomp all over the rights of transgender Albertans, their parents, and women in Alberta sport.

I will put screen captures of the whole page at the bottom ... just in case the UCP decides to disappear this link.  

As you might expect, it's largely a load of bollocks with a side order of moral panic thrown in.  Let's talk about that for a moment, because Albertans deserve far better from our government than this. 

An Open Letter To Premier Smith

Dear Premier Smith, 

It wasn't that long ago that you were standing at the podium telling us that Bills 26, 27, and 29 were so well crafted that you were certain that they would prevail in scrutiny before the courts.  Today, you stood up and told Albertans that these laws were so vital and important that you were going to invoke The Notwithstanding Clause (S33) to bring them into force.  

What changed? 

It wasn't the content of your hateful legislation - I read Bill 9 - it didn't do anything except add in the invocation of S33 to each of them.  So, your legislation didn't change, nor did the intent behind that legislation.  I don't think we need to kid ourselves about the intent either.  

Was it your rabid base of TBAers getting restive because the court cases were taking longer than their pathetic attention spans?  Or did you need another distraction from the blatant corruption and mismanagement that your government has been foisting on Alberta since you became Premier?

Frankly, I don't really care.  You just abused S33 again - proving that your oh-so-heartfelt concerns about "parliamentary sovereignty" are little more than a power grab - one where you put yourself in the position of arbiter of who gets rights in this province, who gets their freedoms stripped from them, and who is considered a valid citizen of not only Alberta, but in fact Canada.  

Fuck you, Danielle.  Do the province two favours:  retract Bill 9, and resign.  Alberta deserves so much better than a wannabe dictator who sees Canada's Constitution and The Charter of Rights and Freedoms as an obstacle to be ignored.  

- A Citizen of Canada