Can the federal government stop Danielle Smith’s anti-trans policies?

OPINION: The answer, like the politics that surround the proposals themselves, is complex

In the wake of Danielle Smith’s announced policy about limiting gender-affirming care in Alberta and taking other measures such as parental notification for changed pronouns and preferred names in school and limiting trans women’s participation in sports, there has been no shortage of questions as to what the Justin Trudeau and the federal government can do to stop it. The short answer is: not a lot. The reason: most of these issues are related to healthcare and educational policy—items that are squarely within the provinces’ exclusive areas of constitutional jurisdiction. There may still be levers they can deploy, however, but there remains a lot of uncertainty because we don’t know what form Smith’s policies will take.

In New Brunswick, the policy around parental notification is just that—a policy under the province’s educational statutes. This isn’t something the federal government can actually touch, beyond using moral suasion. In Saskatchewan, the province put the policy into legislation and invoked the notwithstanding clause pre-emptively in order to make it immune to court challenge (as well as inoculating the government against lawsuits from whom these policies harm). That legislation is currently being challenged in the courts. Arguments include that the notwithstanding clause should not apply to this particular situation because the clause is limited to only certain provisions of the Charter of Rights and Freedoms, and they argue that these rights engage sections of the Charter that fall outside of those the clause can affect.

It remains to be seen if the courts will buy that argument, but the federal government rarely gets involved in these kinds of court challenges at the Superior Court level. Typically, they will wait until the matter reaches the Supreme Court of Canada before they file for intervenor status and present arguments to the Court at that point. This has been the case with the court challenges against Law 21 in Quebec, which bans religious attire for those in public-facing government jobs in the province—the federal government has called the law discriminatory and has denounced the pre-emptive invocation of the notwithstanding clause in that case, but are waiting for the matter to reach the Supreme Court before they get involved.

Because we don’t know what form Smith’s proposals will take, be it legislation, orders in council or ministerial directives, it remains uncertain as to just what mechanisms can be used to fight them. There are questions as to whether she even has the authority to enact some of her proposals because they relate to private medical decisions, though it may involve de-listing certain services under the province’s public healthcare. There is a theory circulating that some of this may be a trial balloon being floated now, for the benefit of throwing red meat to her reactionary base.

 

To extend a metaphor, when Jason Kenney created the United Conservative Party, he invited a bunch of face-eating leopards into the house and made them a nice warm bed with the intention of turning them loose on the NDP, but the leopards quickly realized that his face was right there, and they ate it instead. (On his way out the door, Kenney warned that the “lunatics are trying to take over the asylum.”) Smith is now trying to tame those face-eating leopards and trying to ensure that they don’t eat her face like they did Kenney’s. These anti-trans policies are that red meat, a distraction to get her past her next leadership review in the fall, at which point she can quietly walk some of them back.

If Smith is able to somehow affect the healthcare of trans people—and it’s not clear that she can—there has been speculation that the federal government could claw money back from the provincial health transfer under provisions in the Canada Health Act. That may be of particularly limited effectiveness, however, as much of those clawbacks are tied to privatized services, such as if a private clinic offered gender-affirming care when the public system no longer does. We saw this in New Brunswick with Clinic 554, the now-closed abortion clinic in Fredericton that the provincial government refused to fund, citing availability of abortion care in three hospitals elsewhere in the province. The federal government clawed back transfer payments equivalent to what the clinic charged, but even then, they refunded some of that money when the COVID-19 pandemic struck, so as not to look like they were withholding funds at a critical time (as opposed to living up to their principles as a self-described feminist government).

If Smith does legislate these restrictions, there will be calls for the federal government to invoke the constitutional powers of disallowance, which essentially allows the federal government to nullify a provincial law. The problem is that the power is essentially now a constitutional dead letter whose function has largely been supplanted by the reference function of the Supreme Court. More to the point, it has the potential to cause a major breach in federal-provincial relations at a time where we already have two provinces already on thin ice with how they are inviting anarchy by trying to skirt or ignore federal laws around the federal carbon price and the forthcoming emissions cap.

This means that the federal government is largely bound to using moral suasion, and to that end, employment minister Randy Boissonnault, whose riding is Edmonton Centre, is calling on people in Alberta to organize to oppose these policies before they are officially tabled.

“I have one message for every person in Alberta who believes in the inclusive and equitable province that we know it to be,” Boissonnault said in Question Period on Monday. “What those people need to do is to call the silent Conservative MPs in this room and call the MLAs in Alberta, so we can kill this bill before it gets to the floor of the legislature.”

Smith’s reactionary base is not that large, and it should be more than possible for a critical mass of people in the province to let their outrage be known. That also means calling these policies what they are, and not allowing them to be framed as “parental rights,” because that puts the parents who are supportive on the defensive when they need to be allies. Political organizing is becoming a lost art in this country, and we need to revive it if we want to ensure that these changes never see the light of day.

Dale Smith is a freelance journalist in the Parliamentary Press Gallery and author of The Unbroken Machine: Canada's Democracy in Action.

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