Alberta's Premier, Danielle Smith is all excited about next fall proposed new legislation severely restricting youth transgender rights as well as transgender women competing in sport events.
Let's focus on the issue of transgender woman rights in sports, since this is our area of expertise.
The proposed new rules are aimed to prevent transgender woman in joining women sports teams.
Prominent law scholars in Canada have raised concerns about the proposed new rules.
Indeed, 36 law professors and scholars from the University of Alberta as well as from the University of Calgary Law Schools are among prominent voices contesting such restrictive policies.
They have send an open letter to the office of Alberta's Prime Minister.
'We believe these violate theirs rights as enshrined the Canadian Charter of rights and Freedoms.'
Indeed, the subject of transgender women in sports is not only a subject matter of sports laws but also of human rights and constitutional laws.
The legality of Alberta's proposed legislation restricting transgender women from competing in sports would likely depend on various areas of our law, which will be violated with the proposed new rules such as: human rights laws, freedom of expression, constitutional protections, the right of security of the person, and legal precedent. This rules may also constitute cruel and unusual treatment, etc.
Such laws may be seen as discriminatory based on gender identity and could potentially violate human rights legislation that protects against discrimination. Courts would ultimately decide the legality of such legislation based on constitutional and legal principles.
Similar legislation cases around the world has been turned over by courts of law.
One example of a court decision related to transgender athletes and discrimination is the case of Hecox v. Little in Idaho, USA in 2022.
In this case, a federal court blocked an Idaho law that sought to prevent transgender women and girls from competing in women's sports.
The court ruled that the law likely violated the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution because it discriminated against transgender individuals based on their gender identity.
Indeed, even if the Court recognized that the issue of transgender women in sport is new and complicated
'The issues presented in this case are novel and difficult
and decisionmakers around the world are still in the process
of designing and implementing sensible standards regulating
the participation of transgender women and girls in women’s
sports.'
There seems to be an international consencus forming in order not to discriminate against trangender women, at the highest level of sport organisations:
'The standards adopted by the IOC, the NCAA, and
others aim to balance a range of important values and interests, including, among others, inclusion, non-
discrimination, competitive fairness, safety, and completing
the still unfinished and important job of ensuring equal
athletic opportunities for women and girls.'
This decision illustrates how courts may strike down laws that discriminate against transgender individuals in sports based on constitutional principles of equality and non-discrimination.
One can wonder if Alberta's Premier, Danielle Smith did indeed consult with Alberta's justice department before proposing legislation that will be clearly turned down by courts...or if this it just all politics in order to satisfy her quite conservative electors.
This opinion is based on legal arguments as it should be and not any moral judgement.