The Decibel - The legal fight over gender-affirming health care in Alberta

Episode Date: June 3, 2025

The Canadian Medical Association says that the Alberta government has created a “moral crisis” for doctors in the province. The CMA, alongside three Alberta doctors, has filed a constitutional challenge against the Alberta government for legislation limiting access to medical treatment for transgender youth. Bill 26 became law last December, and is part of a suite of laws in Alberta that regulate access to health care, participation in sports and use of pronouns in schools for trans youth. Together, they form the most restrictive gender and sexuality laws in the country.Alanna Smith is a health reporter for The Globe. She joins the show to explain the law, the rationale of Danielle Smith’s government, and why the applicants have filed their challenge.Questions? Comments? Ideas? Email us at [e-mail]

Last week, the Canadian Medical Association filed a constitutional challenge against the government of Alberta over legislation that limits access to medical treatment for transgender youth. This legislation is known as Bill 26. It restricts doctors in the province from providing certain gender-affirming medical care. It bans puberty blockers and hormone therapies for youth under 16 and gender reassignment surgeries for youth under 18. Bill 26 was part of a suite of legislation around gender that Premier Daniel Smith introduced back in January of 2024. introduced back in January of 2024. Making permanent and irreversible decisions

regarding one's biological sex while still a youth can severely limit that child's choices in the future. Prematurely encouraging or enabling children to alter their very biology or natural growth, no matter how well-intentioned and sincere, poses a risk to that child's future that I, as premier, am not comfortable with permitting in our province. The bill became law months later, in December.

And then, at the end of May, the Canadian Medical Association filed its challenge. The CMA is a national association of physicians that advocates for doctors and patients. Three Alberta doctors also signed on to the CMA challenge as co-applicants. One of them is Dr. Jake Donaldson. Bill 26 would force me to violate the Canadian Code of Medical Ethics by basically compelling

me to stand aside when a transgender youth is at the onset of puberty and begins a puberty that does not align with their gender identity. And it would force them into a body that does not align with their gender identity. Whereas I would be able to prevent that with gender affirming care. So today we're talking to Alana Smith.

She's a health reporter for The Globe, based in Calgary. She'll talk about why the CMA is putting forth this challenge, what doctors say is at risk, and why advocates are concerned about the government intervening in people's health care. I'm Maynika Ramen-Welms, and this is The Decibel from The Globe and Mail. Alana, thanks so much for being here.

Thanks for having me. So, Alberta's Bill 26 was presented as part of a suite of bills, really, relating to gender issues. Can you just give us a high level sense here? What is in these bills? So last October, Premier Daniel Smith introduced three pieces of legislation that altogether form the most restrictive package in Canada of laws that regard gender, sexuality, and identity. So one of those legislations is Bill 26,

like we'll be talking about today, that limits gender-affirming care for transgender youth. The second one was more related to schools, and so what it does is that it will require parental notification and consent before schools use the preferred name and pronouns of students. And then the third one is related to sports, and what it does is it bans transgender participation in women's and girls amateur

sporting leagues. Okay, so that gives us a sense of Alberta's three bills. You mentioned that this is the strongest legislation that we've seen regarding gender here in the last little while in Canada. Of course, we know that New Brunswick and Saskatchewan have also recently passed legislation regarding gender, but Alana, it sounds like theirs don't go quite as far then? No, they don't. They don't go anywhere near as far as Alberta has gone. Their legislations impacted schools,

so pronoun policies and name change policies. But I should note that while that is still moving forward in Saskatchewan, though there was a legal battle happening there, in New Brunswick, that was actually pulled back once a new government came into power. Hmm, okay. So let's unpack what's in Bill 26. One of the things that it does is it prohibits top and bottom surgeries for youth under 18. How common is that to begin with? Well, it's important to note that bottom surgeries are not done on minors anywhere in Canada.

So that's not happening at all? That is not happening at all on minors. And then as it relates to top surgeries in Alberta, the Globe and Mail actually found that only eight pediatric mastectomies had been performed for gender-affirming reasons, and that was between January 2022 and November 2023, so almost a two-year time period. Huh, okay, so pretty low number there as well. Very low. Another aspect of this bill is that it restricts doctors from prescribing puberty blockers and hormone therapies to most youth under the age of 16. We're going to look

at both of these but let's just start with puberty blockers. What exactly are they and what do they do? So there are three Alberta doctors who provide gender affirming care that are co-applicants in the Canadian Medical Association's legal challenge. And so we've actually asked one of those doctors, Dr. Donaldson, and here's his thoughts. Puberty blockers, otherwise known as GnRH analogs in the medical world, they mimic a hormone that is released from the brain and because the body experiences them in a constant fashion, what it does is it overwhelms sort of the puberty receptors in the body and that puts a pause button on puberty. The risks of puberty blockers are actually quite minimal. They're relatively safe medications. A couple of things that

I do mention to people when I start puberty blockers, one is that when a person does not begin puberty, when they're supposed to, their bone density does not accelerate like it would if they were starting puberty, and they fall behind in terms of building bone density. Once they do start puberty, whether that's through their own endogenous puberty or with the hormones that we prescribe, they generally catch up, and the studies show that. So it's a pretty minimal concern, and there's no study that has shown that there's an increase in fracture risk or anything like that. Essentially, puberty blockers are fully reversible. Another gender-affirming piece of care that's being legislated in this bill is hormone therapy. So we asked Dr. Donaldson about this as well. So hormone therapy is basically the same hormones that our body makes to start puberty and maintain our what

we call secondary sex characteristics. We prescribe estrogen for transfeminine people and testosterone for trans masculine people. And they are both what we call bio identical, which means the exact same model molecules that our bodies make. And that's how the body experiences it. So the side effects are very predictable. It's basically the physical changes that you would expect with estrogen or testosterone, respectively. So Premier Danielle Smith, when she introduced this legislation, part of her argument is that what it does is that it protects youth from making life-altering decisions and that

these choices should be protected until they're adults. And so we asked Dr. Donaldson what exactly those risks are as it relates to hormone therapy. The risks of hormones themselves, it depends on the hormone. For testosterone, it's a bit tongue-in-cheek, but I do tell people that cisgender men do not live as long as cisgender women. There's about a four-year difference in life expectancy between men and women, and if a person is on testosterone for most of their life, they may lose a few years at the end of their life, probably related to a slight increase in cardiovascular disease relative to folks who have estrogen in their bodies instead. For estrogen, there is a

small risk of life-threatening blood clots. And in somebody who's young and otherwise healthy, that risk is minimal. The risk is less than those of birth control pills. So it's a very tiny risk. Okay, so that gives us a sense of what these treatments are and what the risks are for them as well. Elena, can minors access these treatments like puberty blockers, hormone care, surgery?

Can they access these things without parental consent right now? It's pretty rare that that happens. Usually it requires multiple conversations with their physicians, with the parents or guardians, with mental health experts. This isn't just something where you walk into a doctor's office and boom,

you're given hormone therapy or puberty blockers. It really is a process that happens and involves a lot of consultation, specifically between physician and patient. In Alberta, there's also something where a mature minor is entitled to give or refuse consent for any proposed medical treatment or procedure. It's pretty rare when this sort of thing happens,

but essentially what it means is that a medical practitioner can make a determination as to whether a young person has the sufficient intelligence and maturity and fully appreciates the nature of the medical treatment that they're getting and understands the risks of such a medical treatment or procedure and that they're then able to access it. But that's actually quite rare. Okay, so this kind of gives us a sense of the medical side of Bill 26. Elena, let's now talk about the reasoning here that the province is giving for introducing

this legislation. We've touched a little bit on what Premier Daniel Smith has said, but why exactly has the government said they need to bring in this legislation? I guess there's two aspects to this. One is that Premier Smith has argued that it protects youth from making life altering decisions before they're old enough to understand the consequences of it. But part of this bill is also related to parental choice. She says that it protects the right of parents as it relates to their children and whatever medical procedures or practices they want to be part of. And so she's also argued that

her legislation balances the rights of transgender people while also protecting these two choices. How has this legislation been received though? Like when it was originally introduced, what were people's reaction to it? It was actually introduced in a seven minute clip on social media in January, 2024. My fellow Albertans, today I wish to address a very sensitive issue involving our children

and gender identity. This is not always an easy conversation to have. And as you can imagine, nobody actually expected this to happen, especially not in that way. So the condemnation of this bill was fast. And the reason being is that it's just so much different than any other legislation we've seen across Canada or proposed legislation at that time that we had seen across Canada. And so there were federal ministers in the Liberal government. There were Alberta's two big city mayors in Edmonton and Calgary. There were transgender advocates, advocacy organizations. All of

those different groups actually pushed back against this legislation when it was first identified in that social media video. Wow. And you mentioned advocacy groups as well here, Alana. They actually brought forward an earlier challenge to this as well, didn't they? Yeah, we're actually talking about the second legal challenge against this legislation. The first one was actually brought forward last December by two advocacy organizations, which is the Gale Canada and Skipping Skone Foundation.

Also co-applicants on this challenge was five families with gender diverse children, ages between six and 11. And what they argue in their legal challenge is that not only does this legislation violate several charter protected rights, but it also goes against Alberta's own Bill of Rights. We'll be back in a moment. We'll be back in a moment. OK, so let's talk about this legal challenge from the Canadian Medical Association, the CMA. So last week, the CMA brought forth this constitutional challenge against Bill 26. What exactly is the CMA arguing here? So what the CMA is arguing is that it violates your Section 2 Charter Right to Freedom of Conscience.

And they're arguing this specifically in the rights of doctors, of physicians, being able to provide the care that they think is most relevant to their patient. Their entire argument was that because there's this law in place, it requires physicians to either follow the law instead of their own clinical guidelines or the needs of their patient in their own conscience. Do we know what is the CMA hoping to achieve with this challenge? What is the goal here? I mean, ultimately, CMA's President Juss Reimer explained that she wants this law to be repealed in its entirety, that transgender youth have access to gender-affirming treatments as they and their doctors or in their parents and guardians see fit. This seems like a pretty big move, right, for the Canadian Medical Association to be

targeting provincial legislation here. Have we seen something like this happen before? It's a very rare move. The Canadian Medical Association is involved in advocacy efforts, has been for a very long time, but this is the first time, at least to my knowledge, that they've actually put forward a legal challenge against a province. And as we touched on earlier, it's not just the CMA on their own bringing this challenge forward. There are also three physicians who have signed on as co-applicants. One of them, of course, is Dr. Jake Donaldson, who we've been hearing from already.

What have these doctors said about why they're signing on to this? So maybe I'll start with what the Canadian Medical Association president said and that's Dr. Joss Reimer. So she said when governments get involved and start restricting medical decisions that means that doctors are then put into a position where they have to choose between following their ethical standards, following what they feel is best for their patients, or following the law. And so that this is just something that's come up in all three of the co-applicants affidavits as well. They're saying that there's this uneasy feeling of do I follow the law or do I provide the

best care for my patients? So putting doctors in this really difficult situation then it sounds like to make that kind of choice. Mm-hmm. And so one of the other doctors, Dr. Jillian Demontany, she's pointed out that restricting gender affirming care for youth can cause suffering, including gender dysphoria, and she said, and I quote, I cannot in good conscience abandon these patients. And then I'll speak just a little bit about the other doctor that's a co-applicant, Dr. Joseph

Reisch, who wrote in his affidavit that he's quote, profoundly troubled by the grave human cost, unquote, that these prohibitions will bring. And he wrote that quote, denying treatment and telling physicians that they are powerless to act is not a neutral position It is an affront to the dignity of patients whose dignity is already under daily attacked by our society and to the professional and ethical Agency of doctors who care for them unquote I mean those are all pretty strong words from from those physicians about why they're they're standing up against this Can we dig into this just a little bit of Lanaana? Like what do physicians say is the risk here, the risk for trans people as a result of this legislation?

Some of the major risks are just an increase in mental health challenges, depression, anxiety, thoughts of suicide. We also asked Dr. Jake Donaldson about this. So I think oftentimes we think about the risks associated with the medications themselves. We don't think about the risks associated with the medications themselves. We don't think about the risks associated with a delay in treatment. So for transgender youth or gender diverse youth, if they are refused or denied treatment,

they will go through a purity that does not align with their gender identity. And there is significant risk associated with that, because they will be pushed into a body where they essentially stand out in the world as a transgender individual. And that has a major impact on their emotional well-being, on their safety moving around in the world, because unfortunately, we live in a world where some folks are transphobic.

So I think it's very important when talking about risks and benefits that we think about the risks of delaying or refusing treatment as well. So this is an important point from Dr. Donaldson. It's not just kind of the physical risks, but there's a lot of emotional and mental risks that come along with it as well. Mm-hmm, exactly. Alana, since the CMA brought forward this challenge in late May, what has the response

been? So pretty much immediately after they filed their legal challenge last week, the Alberta Medical Association actually came forward. And while they're not co-applicants in this legal challenge, they said that they support it in its strongest terms and that they agree with everything that's put forward by the Canadian Medical Association. Do we know how the government of Alberta could respond to this challenge? So the government so far has said that they intend to, I quote vigorously defend unquote their position in court so they do plan to take this all the way to the court. And Smith has also mentioned that

she has the possibility of using this notwithstanding clause as well. Can we talk about that? What has she said? So the notwithstanding clause is you know a rarely used mechanism that essentially allows governments to override certain sections of the Charter for up to five years. This is rarely used, though we did see it used in Saskatchewan as it related to their policies for gender and pronoun changes in schools. Premier Danielle Smith has said that she would use this as a last resort, but we haven't really heard anything since, so it's a possibility that she could take that route.

Okay. Just lastly here before I let you go, Elena, I wonder about the possible ramifications of all of this happening, the introduction of things like Bill 26. Does this set a kind of precedent for governments potentially intervening more in medical practice? Well, that's what the Canadian Medical Association is arguing. They're saying if there can be limits to certain medical care

under this legislation as it relates to transgender individuals, then essentially what's to stop the government from putting limits on other types of medical interventions? It is also important to note that this isn't the first time that the Alberta government has put limits on certain types of medical treatment. We've seen this before as it relates to injectable opioid agonist therapy, which is a medical treatment for folks who have opioid use disorder. In many cases, it's seen as the last resort. Basically, they've tried every other treatment and they haven't been successful. And so they go to IOT or injectable opioid agonist treatment. And sorry, that's something that the government has restricted then? The government has restricted this.

So basically a lawsuit went forward actually in that case as well. And it made it so that folks who were already accessing this sort of treatment could continue their treatment process, but that no new patients would be added. And something else that's important to add just in the Alberta context is that Premier Danielle Smith and her government has championed in many ways the right to medical choice, specifically as it relates to vaccines. And this is just part of Premier Smith's thoughts on the COVID-19 pandemic in general is that people should have been able to choose exactly what they wanted to do with their bodies as it related to vaccines.

But largely, just in general, this has been something that's been championed by the Smith government. And so questions as it relates to this case is how do you balance that, you know, that celebration of choice by on the same breath limiting access to certain treatments for transgender youth. And so that's something that's being questioned by people often here in Alberta of how do these two things match up. And in addition to that, there was actually a question that was posed to Premier Smith when she introduced this legislation about whether or not she was big footing the relationship between patients and physicians.

And she actually said herself that doctors aren't always right and that sometimes the government needs to step in. Alana, thank you so much for taking the time to be here today. Thanks for having me. That was Alana Smith, a health reporter for The Globe. That's it for today. I'm Maynika Ramon-Wilms. Our producers are Madeline White, Michal Stein, and Ali Graham.

David Crosby edits the show. Adrian Chung is our senior producer, and Matt Frainer is our managing editor. Thanks so much for listening and I'll talk to you tomorrow.