A group representing Canada’s doctors is challenging the constitutionality of Alberta’s legislation banning certain gender-affirming treatments for children under the age of 16, arguing it violates their Charter right to freedom of conscience.
The Canadian Medical Association says it filed the challenge Wednesday in Alberta Court of King’s Bench. The CMA says the move is meant to protect the relationship between patients and doctors when it comes to making treatment decisions.
“This is a historic and unprecedented government intrusion into the physician-patient relationship and requires doctors to follow the law rather than clinical guidelines, the needs of patients and their own conscience,” the association said in a statement.
The legislation was part of a trio of bills affecting transgender people that Alberta Premier Danielle Smith’s government passed last year.
The association, which represents over 75,000 physicians, is specifically challenging the bill that blocks doctors from prescribing hormone therapy and puberty blockers to children under 16 and bans gender-affirming surgeries for those under 18.
The other bills ban transgender women from competing in amateur women’s sports and make it a requirement for children under 16 to receive parental consent to change their names or pronouns at school.
Smith has said the medical treatment legislation is necessary to protect children and ensure they don’t make major decisions before they reach adulthood.
Dr. Jake Donaldson, who is one of three Alberta-based doctors involved in the court challenge, said the law has put him and other doctors in a “state of moral crisis.”
“It is encroaching upon sort of the autonomy of physicians and our ability to provide what we believe is best, and individualized, evidence-based care for patients,” the Calgary family doctor said in an interview.
“It forces me to sort of stand on the sidelines and refuse to provide care to patients who would otherwise, in all likelihood, significantly benefit from it.”
Donaldson said he has roughly 40 young patients who receive the kinds of treatment the law outlaws, although an exemption clause in the legislation means those patients aren’t being cut off.
“From the standpoint of gender-affirming care, what we are able to do in the medical world is help people,” Donaldson said.
“There’s good evidence behind what we’re doing, [and] there are guidelines that we follow. Nobody’s making decisions willy-nilly.”
Association president Dr. Joss Reimer said Donaldson isn’t alone in being in a moral crisis as a result of the law.
She said the association doesn’t want to see physicians “put in a position where they have to choose between following their ethical guidelines … following what their college expects of them, what the guidelines say, or following the law.”
“It’s not unprecedented for the CMA to get involved in legal matters, but it was unprecedented for a bill in Canada to restrict the ability for physicians to offer advice to patients,” Reimer said.
Alberta Justice Minister Mickey Amery’s office wasn’t immediately able to comment on the challenge.
The association isn’t the first to challenge the constitutionality of Smith’s legislation.
In December, advocacy groups Egale Canada and the Skipping Stone Foundation, as well as five Alberta families, launched a Charter challenge against all three bills. They also filed for an injunction.
Hearings for the injunction application took place in Calgary in March, but a judge has yet to make a ruling.
A spokesperson for Egale said in a statement that it welcomes the medical group’s challenge.
“No one benefits when governments insert themselves into the relationship between doctors and patients,” it said.
Smith has previously said she thinks the three bills strike a fair balance and that the Charter allows for limits on rights.
“We have all kinds of restrictions on the ability of minors to make decisions. And we do that because we want to make sure that they are at full capacity to be able to make decisions that are going to be consequential to them,” the premier said in December.
Smith said later that month that she would use the Charter’s notwithstanding clause “as a last resort” to override possible breaches to ensure the legislation is implemented.
