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. 

Countering The Law 

Charter Challenge Options

I want to be clear here:  in my opinion, none of these challenges are mutually exclusive, and each must be considered with respect to a particular law to determine if the challenge applies. 

Challenges under S2 and 7-15

All of these challenges are within the purview of S33 to override them.  That said, they are all relevant arguments, not to be simply swept away by a government invoking S33.   

Freedom of Expression and Association (S2)

S2 of The Charter reads as follows: 

2 Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

These are very broad freedoms, and they can be used in some circumstances to challenge the validity of anti-transgender laws – especially those that attack transgender people for carrying on in their daily lives.  

For example, a law aimed at banning drag could well be argued as an unreasonable infringement on S2(b).  Similarly, a law passed in Alberta in 2019 which effectively banned Gay-Straight Alliances in schools could also be argued as unreasonably infringing on students’ rights under S2(d) in particular.  

Legal Freedoms (S7-S15)

Legal freedoms is a rich vein under which anti-transgender laws can be challenged.  These laws are vulnerable under any number of arguments under S15, but also under S7.  

There are two primary areas of challenge here – the first is under S7, the second is of course S15. 

S7 reads:

7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

There are several scenarios where S7 becomes relevant here.  First, as the SCC ruled in R v Morgentaler, security of the person limits the right of the state to make legislation which interferes with a person’s health.  This applies both to matters such as medical interventions related to gender identity as well as laws which would impair a person’s health in the short or long term such as a “bathroom ban”.  

I would go a step further with both of those and argue that based on my earlier post about “Jim Crow” laws that anti-transgender legislation in general violates S7’s “principles of fundamental justice” clause as well.  In other words, the purpose of those laws being to isolate and segregate transgender people violates the principles of fundamental justice.  

S15 reads:

15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.  

The SCC has generally acted to “read in” minority groups not explicitly mentioned in S15(1).  The fundamental principle of interpreting The Charter in a manner beneficial to minority groups being a significant aspect of how The Charter is intended to be used.  That in general terms means that laws which unnecessarily infringe upon the rights of any minority are bound by a principle of “minimal interference necessary to accomplish the policy goal”.  When the goal is simply to eradicate an entire minority, there is no “minimal interference” line, and that renders the laws themselves invalid under S15 as well.  

S15(2) reads as follows: 

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

While one might expect that the application of 15(2) is moot in a situation where S33 has been invoked, that certainly does not mean that the Alberta government won’t try to apply it here.  They would likely argue that their intent with this bill is to ameliorate the condition of women in gendered space, and that it is necessary in order to protect women from the presence of male predators in these “vulnerable spaces”.  

However, there are some very straightforward counter-arguments to this.  First, there are already extant laws that deal with such situations, ranging from voyeurism to indecent exposure laws.  This law is redundant.  Second, the law itself makes implicit assertions about a subclass of people based on characteristics unrelated to the impugned actions.  Both of those points weaken the “urgent necessity” for such a law. 

The government could argue that “women experience discomfort when there is a transgender person in the space”.  The problem with that is no other law holds the “perpetrator” responsible for the feelings and reactions of others in the course of going through their lives.  Is a person with a bunch of tattoos responsible for the reactions of others who might believe that “people with tattoos are violent”?  No, of course not, nor is there any evidence that people with tattoos are violent.  

26 The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.

Section 26 is the foundation upon which S15 is read expansively, and becomes a very important section when we are talking about the rights of transgender people.  Again, its presence in The Charter should give the courts a significant pause when looking at laws like those that Alberta is passing to attack transgender people.  

S33 Overrides All This, Right?

The provinces want you to believe that.  I’m not so convinced.  As I’ve written about previously, the current case before the SCC regarding S33 seems quite likely to relegate S33 to the status of “emergency power”.  Having spent a fair bit of time reviewing both the arguments of the provinces and the position put forth by the Attorney General of Canada in that matter, I believe the Attorney General of Canada has put forward a compelling argument that there are legitimate limits to the application of S33, and that a failure to acknowledge those limits would effectively render The Charter moot in our laws.  

I can’t tell you when that ruling will come down, but when it does, I expect there to be considerable gnashing of teeth and wailing by certain provincial governments.  

However, if you read on, there are several additional angles of attack which could be brought to bear even if S33 is deemed to be “legitimately invoked” regarding laws which restrict transgender people’s rights. 

Gender Equality Challenge (S28)

28 Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.

 I think there are several ways in which these laws violate S28 of The Charter through perverse consequences.  Even if the law is written such that it includes both transgender women and transgender men, there are perverse consequences that are inherently contradictory to this clause of The Charter.  

a). It places an unreasonable burden mostly on female persons to prove that they are “genuinely female”.  This could extend to having to carry copies of birth certificates, birth records, or other documentation.  

b). It presupposes that there is a “normal” presentation and in doing so, places an unreasonable burden upon anyone who does not fit that profile to be prepared to “prove” their sex when challenged.

c). If the law is written in such a way that it encompasses transgender men, it creates a situation where a transgender man is theoretically required to use the designated female washroom, while at the same time subjecting them to having to repeatedly prove that they should be in that space “by law”.

In other words, in its effort to segregate transgender people from “gendered spaces” appropriate to their identity, the law would unreasonably impact cisgender users of those spaces who are allegedly being “protected” by the law.  

In practical terms, it creates an environment where women are subjected to increasing scrutiny based on appearances.  If you are too “much” anything that is broadly outside the societal norms for female (or more correctly feminine), then you may find yourself facing a huge amount of scrutiny every time you do something as minor as use a public washroom.

This would mean that such a law does violate S28 of The Charter.  

S6 Mobility Rights Challenge

I talked about this a bit in Novel Arguments For Challenging Anti-Transgender Laws In Canada.

This relies on understanding S6 of The Charter, which reads: 

6 (1) Every citizen of Canada has the right to enter, remain in and leave Canada.
Rights to move and gain livelihood 

(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right

(a) to move to and take up residence in any province; and

(b) to pursue the gaining of a livelihood in any province.

Limitation
(3) The rights specified in subsection (2) are subject to

(a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and

(b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.

Affirmative action programs
(4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.

In particular, the argument here revolves around S6(2).  The right to move and live “in any province” in Canada would be significantly impaired by such a law in any given province.  The impairment here is that for one class of Canadian Citizens, they would have substantially restricted rights to access public services – the impact of which could be quite significant, ranging from creating an inability to access public washrooms in parks to in some circumstances making attending post secondary classes more difficult, especially where there are only multi-user washroom facilities available in a given building or floor of a building.  These are not trivial impairments, but in fact could create actual health impacts as well.

The effect of such a law would be to discourage people who are transgender themselves, or have transgender family members from moving to Alberta, and for transgender people living in Alberta, it becomes a significant incentive to leave the province.  In effect, a perverse consequence of the law is an implicit impairment of rights guaranteed under S6(2) of The Charter. 

There are a couple of possible avenues where the Province might argue against this position.  First would be to claim that S6(3)(a) applies.  The second argument would be to try and extend S6(4) to apply, or even argue that the law is protected under S15(2) of The Charter.  We will explore each of these in more detail.

S6(3)(a) Limits on Mobility Rights

S6(3)(a) states: 

(a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and 

The Province could attempt to argue that the “bathroom bill” is a “law or practice of general application”.   However, even in a situation where S33 has been invoked, you can ask the court to consider how the law violates rights held under both S7 and S15 of The Charter.  There is a “knock-on” effect here because this law subjects a portion of the population to specific discrimination on the basis of assumed characteristics.  Legislating on a characteristic (being transgender) creates a situation where you are making the person a criminal for existing.  Just as homosexuality laws were ultimately a gross injustice, anti-transgender laws are similar.  When a province legislates to shove people out of society on the basis of a characteristic the intent of the law no longer can be narrowly interpreted. 

While invoking S33 does insulate a law from direct challenge under sections 2, and 7-15 of the Charter, it does not insulate the law from scrutiny for impairment of other rights.  

Closing Notes

These are the primary avenues which can be used to challenge a law attacking transgender rights and autonomy using The Charter.  At some point in the future, I may attempt to build up the body of relevant case law which would buttress the lines of reasoning presented here.  In particular, I think the combination of a coherent argument that helps the court understand the exclusionary purpose of these laws in conjunction with a mobility rights challenge could well turn out to be the legal approach which brings these kinds of laws down.

It is important to note that while this post is focused on different aspects of The Charter, there are other types of legal challenge which can be brought to bear in challenging these laws.  I will talk about those in another post.  

The underlying point here is that while it may feel hopeless in the face of provincial governments that seem indifferent or hostile to transgender issues, there are avenues of law which can bear fruit in terms of challenging these abuses of power.