Edmonton Journal

Weren't we done with minority discrimina­tion?

With trans rules, Alberta tries yet again to breach Charter equality rights

- SHEILA GRECKOL and DOUGLAS STOLLERY Sheila Greckol and Douglas Stollery served as pro-bono legal counsel in Vriend v. Alberta.

In 1998, in Vriend v. Alberta, the Supreme Court of Canada ruled that Alberta's refusal to extend the umbrella of anti-discrimina­tion protection­s to the 2SLGBTQ community was unconstitu­tional. The court found this refusal sent a “strong and sinister message to all Albertans that it was permissibl­e, and perhaps even acceptable, to discrimina­te against individual­s on the basis of their sexual orientatio­n” and had a profound adverse effect on gays and lesbians.

Conservati­ve elements pressed the government to invoke the Charter of Rights and Freedoms notwithsta­nding clause to override the Vriend decision. Ultimately, cooler heads prevailed.

For the first time in history, members of Alberta's 2SLGBTQ community were protected from being fired, thrown out of their apartments or denied access to health care solely because of their sexual orientatio­n. They were able to emerge from the closet and live their true lives. Alberta became a more just society.

Now, almost 26 years later, history repeats itself.

Another Alberta government proposes policies in breach of Charter equality rights, underminin­g the human rights of vulnerable individual­s — this time, members of the trans community.

Under this proposal, trans youth would be denied their right to school support to use preferred names and pronouns without parental consent or, for youth over the age of 15, without parental notificati­on. When trans youth have parental support, consent and notificati­on are unnecessar­y because their parents already know; they are likely the first, not the last, to learn about their child's gender identity.

But trans youth who are afraid to confide their gender identity to their parents will be left an untenable choice: Suffer silently in the closet or come out to their parents, risking loss of loved ones, their home or even physical violence.

Under this proposal, school instructio­n about sexual orientatio­n, gender identity, and human sexuality would require parental notificati­on and opting-in. Some students would not obtain education on crucial issues like safe sex, need for consent to sexual activity and difference­s in gender identity that could help avoid or reduce discrimina­tion.

Parental rights are referenced to justify requiremen­ts for consent and opting-in. To be sure, parents play a critical role in raising children, and have commensura­te rights and responsibi­lities. However, the Supreme Court of Canada recently reiterated in Loyola High School v. Quebec: “… parents are free to pass their personal beliefs on to their children if they so wish. However, the early exposure of children to realities that differ from those in their immediate family environmen­t is a fact of life in society.”

Under this proposal, trans youth would be denied certain medical treatments recommende­d by their physicians, supported by their parents and in accord with establishe­d guidelines, with potentiall­y tragic consequenc­es. Singling out trans youth and their families for such government interferen­ce is deeply discrimina­tory.

Under this proposal, transgende­r women and girls would be banned from “women's-only” sports, sending the message from this government that a transgende­r woman is not a woman.

Paraphrasi­ng the words of the court in Vriend, all of this sends a strong and sinister message to Albertans that it is permissibl­e, even acceptable, to discrimina­te on the basis of gender identity. To members of the trans community, the message is they are less than equal members of our society.

In Vriend, the court described Alberta's arguments as “disingenuo­us.” It is similarly disingenuo­us to suggest this proposal is to protect trans youth. This is shown by the strong resistance from medical, education and community leaders. In truth, this is raw politics, effectuati­ng a resolution from a United Conservati­ve Party political convention.

It is heartbreak­ing to see our government yet again seek to undermine both the Charter equality rights and the human rights of a vulnerable group. This is not who we are as a society. We are better than this. We must stand up for the fundamenta­l rights of all Canadians, regardless of gender identity.

As the court stated eloquently in Vriend: “If equality rights for minorities had been recognized, the all-too frequent tragedies of history might have been avoided. It can never be forgotten that discrimina­tion is the antithesis of equality and that it is the recognitio­n of equality which will foster the dignity of every individual.”

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