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1/ The current controversy in Saskatchewan shows how the gender debate has become the perfect storm for loss of confidence in the Charter. The Charter has never commanded universal respect among Canadians but in recent years these doubts have increased.
2/ The Charter was introduced by Pierre Trudeau over opposition from the provinces. The notwithstanding clause was one of a series of compromises which won the grudging support of 9 provinces. Quebec did not agree and has used the notwithstanding clause regularly.
3/ Public support for the Charter has grown because it was believed to secure broadly shared values of equality between individuals and limitations on state authority. It was seen as reinforcing democratic government by protecting the fundamental conditions for democracy.
4/ More recently academic and now judicial thinking has adopted a new concept of human rights based on ameliorating the condition of oppressed groups, even at the expense of traditional values of liberty and equality.
5/ This new concept of rights has pushed the courts further into the realm of policy making for which the judicial process is not designed. Bad decisions will happen and as they become more frequent the need for a political safety valve has increased.
6/ A basic problem is that court procedures are intended to resolve a clear conflict between two parties. There are often many different perspectives to a Charter issue and all of these perspectives are seldom adequately represented in court.
7/ The rules of evidence make it difficult to present a full picture of the complexity of an issue like pediatric gender transition. The scientific background has to be presented through expert witnesses who submit written reports. This is a costly process.
8/ The high costs of bringing a Charter case mean that many cases are brought by groups receiving government funding. The government is using the Charter litigation to advance the interests of favoured groups in a way that bypasses the legislative and public debate.
9/ Judges of course follow the media and in most cases they can rely on their own general knowledge to aid in understanding the evidence presented in court. However, on the issue of gender medicine Canadian media coverage has been hopelessly biased.
10/ A judge who reads the Globe and Mail and listens to the CBC will have heard nothing about the international controversy over gender medicine. There has been no coverage of the closure of the Tavistock gender clinic of the policy changes in Sweden, Finland and Norway.
11/ Strict rules of evidence exist because court cases are intended to provide a final resolution to a dispute. There are provisions to re-open a criminal conviction where new evidence is discovered after trial in other types of cases the decision is final after the final appeal.
12/ Public policy, on the other hand, should be constantly revised as new and better evidence emerges. New evidence on pediatric gender transition is emerging rapidly but it is being ignored by Canadian media and policy makers.
13/ There is a risk that when Canada finally realizes how harmful the current approach to pediatric transition has become, the ability to change course will be hindered by Charter judgments made on the basis of faulty and limited evidence.
14/ In these circumstances, use of the notwithstanding clause may be a necessity but it is worth considering that we would not be in this mess if our major institutions did not show such disregard for the Charter’s protection of freedom of expression.
Justdad7 is another important information source to follow in Canada about the issues surrounding the unwarranted sterilization of children in the name of transgender ideology.
A Different Model of Care – justdad7’s Substack.
The major difficulty with the application of the mature minor doctrine in gender medicine is that the case law assumes that the minor is making decisions under the guidance of a doctor who is following the conventional medical model with clear diagnostic criteria and treatment goals. Practice in gender clinics is very different.
In the case of a disease like cancer, the diagnosis is usually confirmed by multiple objective tests including diagnostic imaging, laboratory tests and tissue biopsies. There are also objective measures of the effectiveness of treatments, such as shrinkage of the tumour. A doctor will recommend a treatment that is likely to cause sterility or other serious side effects only after making a firm diagnosis and concluding that the benefit of the treatment outweighs the risks.
In gender medicine, there is no known biological marker for transgender identity. The diagnosis of gender dysphoria under the DSM-5 depends entirely on self-reported symptoms which are largely tied to conformity to social stereotypes of male and female.
Furthermore, while a DSM-5 diagnosis may still be required in some places for insurance purposes, the WPATH SOC8 recommends relying in the ICD-11 diagnosis of Gender Incongruence. The definition of gender incongruence of childhood is similar to the DSM-5 diagnosis of gender dysphoria, but does not require the presence of distress. For older patients, the definition reads:
Gender incongruence of adolescence and adulthood is characterized by a marked and persistent incongruence between an individual´s experienced gender and the assigned sex, which often leads to a desire to ‘transition’, in order to live and be accepted as a person of the experienced gender, through hormonal treatment, surgery or other health care services to make the individual´s body align, as much as desired and to the extent possible, with the experienced gender. The diagnosis cannot be assigned prior the onset of puberty. Gender variant behaviour and preferences alone are not a basis for assigning the diagnosis.
The concept of ‘experienced gender’ is entirely subjective, with no possible test other than self-declaration. In other words, if a teenagers claim to have a transgender identity and wants medical transition badly enough, they should have it.
It is also difficult for a doctor to inform a patient of the prospects of success of a gender affirming treatment because there are no clear criteria for measuring success. The goal of transforming a body into one of the opposite sex is unobtainable but success might be measured in how close an approximation the treatment achieves.
However, patients seek to transform their bodies in the hope of relieving their mental distress. A good cosmetic result from a treatment is pointless if the patient still feels miserable and distressed by their body. The evidence that gender transition helps to improve mental health is low quality. Ultimately, the conventional measures of success are irrelevant to the new model of gender medicine where the “goals have shifted from reducing suffering to achieving personal ‘embodiment goals.’”
Informed consent in gender medicine therefore raises different issues from the conventional medical model. In conventional treatment, the minor’s decision making is being guided by a doctor who has made a diagnosis and determined that a treatment is in the patient’s best interest. In gender medicine, it is necessary to ask whether a minor should be entitled to proceed with risky and irreversible treatments based on a sense of personal identity which is unfalsifiable but may prove to be transitory.
Justdad7 has a great article on how the misuse of statistics and bad studies are being used by the gender religious to support their arguments. I highly recommend going to his substack and reading the entire article.
The Appeal to Authority
The people who write gender flap-doodle are not stupid. You need to learn a lot of facts in order to twist them and to get your stuff published you need fairly impressive credentials. Any particularly pointed challenge to a piece of gender woo woo from a lay person is likely to be met with the indignant response along the lines of, “How dare you challenge someone who holds a Doctorate from an Ivy League University and publishes in Peer Reviewed Journals.”
This line of argument is a fallacy which has a fancy Latin name, the argument um ad verecundiam or the appeal to authority.
People with doctoral degrees from prestigious universities have to be very bright and hardworking at least at some points in their careers. However, they can still make mistakes and if someone points out a specific mistake, you need to answer the specific point.
A weak or fallacious argument from an expert does not get any better if it is endorsed by lots of other experts. This is the fallacy of argumentum ad numeram or the appeal to popularity. When someone points out that gender affirming care has been endorsed y the American Psychological Association, the American Pediatric Association, the Endocrine Society and many other medical organizations, it is still legitimate to ask whether any of these groups based their endorsement on a systematic evidence review.
The appeal to authority persists because it serves a social purpose. Questioning everything is good advice in the classroom but in day to day life there simply is not time. We need to be able to rely on expert advice without scrutinizing every detail.
Liberal society has developed a matrix of safeguards to ensure that expert advice is reliable, most of the time. Professionals are licensed and regulated by governing bodies. Scientific papers are subject to peer review. Academic tenure protects researchers from undue government and corporate pressure. The press watches for cases of abuse.
The rise of gender ideology has seen all of these safeguards fail simultaneously. It will take time to rebuild them and the loss of public trust will take even longer to undo.
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