As 2S/LGBTQ+ people, we often turn to our history to better understand the present. But this year, we have witnessed something wholly new and unprecedented: a willingness to invoke the notwithstanding clause to trample on the rights of gender-diverse youth.
It wasn’t always like this
Historically speaking, conservative politicians have not been allies in the fight for 2S/LGBTQ+ liberation. However, there seemed to be a limit to just how far right-wing politicians would go to hinder our progress.
Take, for example, the Vriend v. Alberta case from the 1990s, in which a gay man sued his employer for firing him due to his sexual orientation. Although the lower court ruled in his favour, the appeals court found that the provincial government had explicitly refused to include sexual orientation as a protected ground from discrimination in its legislation and that Vriend could, therefore, legally be fired for being gay.
Vriend appealed this decision to the Supreme Court of Canada, which found that the province’s omission of sexual orientation as a protected category violated the Charter’s equality rights, section 15.
Although he had the power to, Alberta’s Premier at the time, Ralph Klein, refused to invoke the notwithstanding clause to prevent the ruling from coming into effect. Klein even went so far as to condemn anti-gay protesters for appearing too hateful. Despite being no friend to queer and trans people, the conservative leader thought it too divisive and radical to explicitly trample on the rights of our community.
Trans rights in un-Chartered territory
If conservative politicians showed respect for court rulings in the past even when it displeased them, the same cannot be said today. Despite settled case law and the existence of explicit anti-discrimination laws protecting trans people in every jurisdiction in Canada, right-wing politicians appear more willing than ever to stoke the flames of anti-trans populism to score political points.
For example, Manitoba’s former premier, Heather Stefanson, sought to rally her base by refusing to intervene in a school board decision to ban 2S/LGBTQ+ content from the province’s libraries. Quebec’s minister of education insisted recently that multi-stall, gender-neutral washrooms would never see the light of day in his province’s schools.
Premier Blaine Higgs’s announcement that New Brunswick will enact a policy that some argue would forcibly out gender-diverse students to their parents seems to be picking up steam, while Ontario Premier Doug Ford has likened the protection of trans youth to indoctrination by school boards. The Conservative Party of Canada’s leader, Pierre Poilievre, has played up the moral panic behind Ford’s comment.
All of these attacks have culminated in the most striking example of transphobic policy we have witnessed in decades, with Saskatchewan Premier Scott Moe pre-emptively invoking the Charter’s notwithstanding clause to prevent any judicial review of a bill similar to New Brunswick’s.
If other premiers follow suit, which is not unlikely given the apparent public support for the policy, the notwithstanding clause risks becoming an acceptable tool for right-leaning provincial governments seeking to impose their beliefs on trans youth and their families.
At this critical moment for trans rights in Canada, it is more important than ever for community members and allies alike to speak out against these measures. Otherwise, we will continue down this uncharted path and the most vulnerable among us will pay the steepest price.
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This blog post is adapted from an article written by CBRC’s French Content Strategist, Francesco MacAllister-Caruso, published in Policy Options. You can access their full, original article here.
