Human Rights in Question as Alberta Delists Gender Reassignment Surgery

The concerned citizens were in attendance as NDP MLA Rachel Notley addressed the legislature. Expressing the concerns of the transgender community, Notley suggested that gender reassignment surgery is a matter of life and death for many who identify as pre-operative transsexual. She said that by denying access to transgender medical treatment, the Alberta government “could be complicit in raising [the] risk of depression and suicide.”[2]

The cut is estimated to save Alberta $700,000 on its annual Health and Wellness budget of $12.9 billion.[3] Notley said, “delisting the surgery trims a tiny fraction from the health budget but slashes at the very foundation of human rights.”[4] She later remarked that the savings would be insignificant compared to the cost of legal challenges that would likely result.[5]

While there is no prior Canadian constitutional challenge against restrictions on transgender funding, human rights legislation was invoked in a successful suit against the Government of Ontario. In 1998, Ontario removed sexual reassignment surgery from its list of covered medical procedures. In 2008, The Ontario Human Rights Commission ruled, on the basis of the province’s Human Rights Code,[6] that the funding cut was discriminatory.[7]

Alberta’s human rights legislation has a provision similar to Ontario’s.[8] Nonetheless, the Ontario decision is not binding on the Alberta Human Rights Tribunal.

The section 7 Charter right to security of the person is a potential point of constitution litigation when government action (or sometimes inaction) raises concerns for an individual’s health and wellbeing. In R v Morgentaler (1988), the Supreme Court of Canada considered the psychological stress that a pregnant woman endured because the Criminal Code restricted her access to an abortion.[9] Chief Justice Dickson, writing for the majority, identified the potential for a breach of an individual’s right to security of the person where state action causes a serious and profound effect on one’s psychological integrity. However, the Court ruled that the anxiety caused by the particular restrictions imposed by the state on access to abortion did not infringe on the individual’s right to security of the person.

If a Charter challenge is ever initiated by Alberta’s transgender community, the courts may be asked to revisit the question of when a state action has a sufficient effect on an individual’s psychological integrity that it violates their right to security of the person.

 

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