Alberta has already begun restricting transgender rights, and in the wake of the shooting in Tumber 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?  

These laws have something in common with some of the most shameful laws in Canada’s history:  They attack a recognizable group based on presumed characteristics.  Whether that is the Chinese Head Tax, Internment of Japanese Canadians, or the Internment of Italian Canadians, these laws / policies / whatever are an indelible stain on Canada’s history, and they almost always are political responses to public hysteria.  

At the end of the day, they are ultimately always shown to be over-reactions and abuses of power that should never have been allowed to go forward in the first place.  All of them presuppose that the characteristics that make a person a member of a group inherently make them a danger somehow.  “Oh, you’re of Japanese descent?  Off to the internment camps with you – you must be a spy!”.   You’ll note the decision is based not upon actions of the individual, but rather assumptions based on membership in a particular group.  In retrospect, these laws inevitably turn out to be not only ill-considered, but actually represent a major abuse of power on the part of the government. 

This leads me to Alberta’s anti-transgender laws – Bill 26, 27, and 29 which Smith is attempting to protect with the Notwithstanding Clause.  These laws restrict the rights of individuals on the basis of presumed “group characteristics” – especially Bill 29, which asserts that transgender women in particular pose a threat to women and girls in sport.  

So, without any attempt at discerning whether an individual may pose a “threat” in sport, these laws simply assert a blanket claim that there is a threat based on the characteristic of a person having been male at one time in their lives.  I’m not going to argue the science of that claim here – I’ve talked about it here, here, and here if you really want to go there.  

Looking at this from a legal standpoint, these laws impose limitations on individuals not based on their actions, but instead on presumed characteristics.  That is where I would argue that these laws are in fact violating fundamental principles of justice that stand outside the realm of the exemptions that the authors of the Notwithstanding Clause had in mind when writing Canada’s Charter of Rights and Freedoms, and deserve to be assessed under the rubric of “Peace, Order, and Good Government” as it exists in the broader Canadian Constitution. 

The history is clear – every time Canada has restricted rights based on group characteristics, it has turned out to be catastrophically wrong-headed in doing so. 

A “moral panic” such as what has been whipped up over transgender women (in particular) is inevitably not science based.  In fact, it is entirely anti-science at its core.  This should be more than enough to render these laws null and void.  Claiming that transgender women are intrinsically a danger to women and girls based on a singular trait (being transgender) without significant supporting evidence should not be the basis upon which an unjust law stands.  

Governments have frequently claimed that it is “urgently necessary” to restrict rights on the basis of assumed characteristics in the past.  Those restrictions have always turned out to be wrong headed and based on hysteria rather than actual evidence, and inevitably have placed the nation in the position of having to apologize and make reparations years later.  In the past, governments have often ducked behind the veil of “but we didn’t know how big the problem was” as justification.  Today, such explanations are at best nonsensical, at worst outright lies. 

Do politicians have a right to legislate based on fictions that they have chosen to adopt?  In certain realms, yes.  But I would argue that when those laws lean in the direction of arbitrarily stripping people of rights to exist in society, that there is much to be said for taking a second look at the laws proposed and examining whether there is a reasonable evidence-based rationale for them.  

I think that Bills 26, 27, and 29 in fact reflect a moral panic built up over time by anti-transgender activists who have deliberately misrepresented the transgender community, and their needs to access treatment as well as inclusion in society.  Again, I’m not going litigate the details of where and how those laws get things wrong, but they are largely based on gross misrepresentations of reality.  I would argue that in order to justify such laws, the preponderance of evidence has to support the assumptions that are explicitly and implicitly part of these laws. 

Laws like Bills 26, 27, and 29 ultimately are members of the same class of legal action that resulted in internment camps.  They are, therefore, intrinsically wrong-headed and worthy of the Crown exercising its powers of disallowance and striking them from the books fully and irrevocably – not merely on the basis that they infringe upon Charter Rights, but also because they violate the principles of Peace, Order, and Good Governance that should always constrain a government’s use of power.