By Geoffrey Sigalet, August 6, 2025
A pair of recent judicial rulings – one in Canada and the other in the United States, both on the matter of gender medicine – saw the courts reach dramatically different conclusions. But each case tells the story of the yet-to-be-burst “liberal misinformation bubble” that exists around this issue.
On June 18, 2025, the United States Supreme Court issued its long-awaited decision in United States v. Skrmetti. A 6-3 majority upheld Tennessee’s ban on puberty blocking drugs, cross-sex hormones, and sex reassignment surgeries for minors.
Nine days later, Justice Allison Kuntz – who was appointed to the Alberta Court of King’s Bench by the federal government in 2023 – issued an interlocutory decision in Egale Canada v. Alberta. It’s a case brought to challenge Alberta’s controversial Health Statutes Amendment Act 2024 (the HSAA), which would have implemented the province’s own restrictions on puberty blockers, cross-sex hormones, and sex transition surgeries for minors. The decision granted an interim injunction to prevent certain sections of the law from coming into force while the legal challenge is heard.
Advocacy groups have celebrated Justice Kuntz’s ruling as a landmark win. For now, there remain reasons for them to be optimistic she will also decide the case’s merits very differently from the majority in Skrmetti. However, in the big picture, that confidence may not be warranted given mounting evidence against their cause and the options open to Alberta.
Indeed, to say the Egale and Skrmetti decisions are worlds apart is to state the obvious. But while it is tempting to explain the diverging outcomes by reference to the distinct legal regimes in place in the US and Canada, such a conclusion ignores significant similarities between the factual and procedural context of the American and Canadian cases.
Notably, there was a request for an interlocutory injunction in both the Egale Canada and Skrmetti cases. All the more striking, the United States District Court initially awarded the injunction in Skrmetti before the Sixth Circuit overturned it on appeal.
Moreover, the evidence tendered in both cases was fundamentally similar. Ultimately, the differing outcomes can be attributed primarily to the manner in which the judges interpreted evidence before them, and especially the assumptions they brought to bear in their analysis.
In Skrmetti, a majority of the Sixth Circuit and US Supreme Court judges straightforwardly appreciated the significant evidence that’s accrued demonstrating the harm caused by these interventions, and the continuing lack of evidence regarding benefits. For her part, Justice Kuntz, like the dissenting American judges in Skrmetti, took the administration of puberty blockers, cross-sex hormones, and sex transition surgeries on minors to be, if not an absolute good, then at least a good that strongly outweighs potential adverse consequences.
In both cases, their assessments appear to reflect what journalist Helen Lewis of The Atlantic has recently labelled a “liberal misinformation bubble” – in which assumptions concerning these procedures’ benefits and risks remain frozen in time, while evidence of harm mounts and a lack of evidence of benefits becomes clearer.
As Lewis’ exposé highlights, and as others have also noted, there is in fact almost no evidence to support these interventions’ claimed benefits. Moreover, what evidence exists has been cast into doubt by revelations – including in documents obtained through discoveries in an Alabama case – that the organizations setting standards of care and commissioning most research have been compromised by a political commitment to what they tellingly call “gender-affirming care.” Even the claim that these interventions are necessary to avert suicide in trans-identifying minors – once the primary argument made by supporters, and still often invoked against detractors, including in a recent Globe and Mail editorial – has little to no evidentiary support. In fact, the lack of supporting evidence for this claim was even conceded by counsel arguing against the Tennessee law in Skrmetti.
While claims of benefits appear dubious and politically motivated, the evidence of harm, meanwhile, continues to mount. Notably, just as the US Supreme Court’s decision in Skrmetti was about to be released, a new paper was published outlining the serious long-term health complications caused by administering estrogen to biological males. These findings only added to the known long-term consequences of administering puberty blocking drugs and cross-sex hormones to minors, which can include permanent infertility, anorgasmia, bone density loss, and other permanent physiological changes.
Consistent with Lewis’ thesis, these developments have been resisted by large swaths of the political left in the United States and elsewhere. Such resistance to this information is also evident in the dissenting judges’ assertions in Skrmetti, who continue to characterize these procedures as a “question of life or death” despite the absence of evidence.
But even they (the dissenting judges) did not go quite as far as Justice Kuntz in Egale, particularly in her analysis of whether the plaintiffs would suffer irreparable harm if an injunction was not granted. In Justice Kuntz’s estimation, “[t]he evidence shows that the Ban will cause irreparable harm by causing gender diverse youth to experience permanent changes to their body that do not align with their gender identity.” To this, she adds in the very next paragraph: “the evidence shows that singling out health care for gender diverse youth and making it subject to government control will cause irreparable harm to gender diverse youth by reinforcing the discrimination and prejudice that they are already subjected to. Intentionally or not, the Ban will signal that there is something wrong with or suspect about having a gender identity that is different than the sex you were assigned at birth.”
These statements suggest that Justice Kuntz completely set aside the question of whether the medical benefits of these procedures are supported by evidence. Instead, she appears to have taken it as a given that “gender diverse youth” have an innate and immutable gender identity and will suffer irreparable injury if they are simply allowed to go through a natural puberty. That these identities are highly fluid, and the adverse consequences of pursuing these procedures are serious and irreversible, was ostensibly of little to no importance at this stage of her analysis. Meanwhile, her findings assume these restrictions would increase discrimination and prejudice towards children experiencing gender dysphoria – even if no evidence was tendered to support this conclusion.
The confidence with which Justice Kuntz reaches these conclusions is all the more remarkable. A ruling on a preliminary injunction requires only a “high degree of probability,” yet she speaks with apparent certainty when she asserts “there will be irreparable harm to transgender youth if an injunction is not granted.” In fact, there is a tension between the certainty of this statement, and her own recognition earlier in her ruling that the “merits” of the parties’ expert evidence regarding hormone therapy “cannot be, nor should they be, resolved on this application.”
Moreover, unlike other recent Charter cases in which Canadian courts have issued interlocutory injunctions on dubious grounds – such as the prohibition on drug use in public parks in British Columbia, and the removal of bike lanes in Toronto – the Egale case is not even an instance that pits the purported “harm” faced by a discrete group of persons against the broader good of the community. The individuals involved in Egale – minor children – are the very same persons for whose benefit the Alberta legislature has intervened. On balance, it was thus entirely reasonable for Alberta’s legislative measures to be allowed to come into force, so as to prevent further harm being done to some of the most vulnerable members of society until such time as a full hearing could be given to the merits of the case.
To be fair, in her later discussion of the “balance of convenience” – the court’s assessment of whether granting or refusing the injunction would cause greater harm – Justice Kuntz addresses Alberta’s argument that the HSAA’s relevant sections in fact prevent harm. But even considering these nuances, the judge’s analysis still succumbs to the “liberal misinformation bubble” Lewis identified. To contradict Alberta’s evidence on this argument, the justice leans on “the professional standards of Alberta’s health-care professions,” which she suggests will be sufficient to counteract the harms raised by Alberta while awaiting a decision on the merits. However, this conclusion ignores a key factor that Lewis highlights, and which Alberta presented: the claim that the medical profession has been politicized on this issue, and its professional standards are therefore not trustworthy.
Furthermore, Justice Kuntz mischaracterizes the evidence about the types of harm Alberta’s legislation is meant to address, by claiming that it is only meant to benefit “the small group of people” who are prescribed hormone therapy and “later regret it.” In reality, Alberta’s evidence shows its policies are meant to mitigate a host of serious health risks, including for those minors who later in life do not regret transitioning. If the administration of cross-sex hormones to minors unacceptably increases the risk of sterility, bone density deterioration, or other health risks, it will do so both for minors who detransition and those who do not.
Finally, these mischaracterizations of the harms that would be caused and prevented by the HSAA are further exacerbated by Justice Kuntz’s decision to pre-emptively block the relevant sections, instead of waiting to prohibit their operation once already in force. Her decision results from a clever choice made by Egale Canada to proactively challenge the relevant provisions of the HSAA prior to their coming into force. This allowed the law to be considered without accompanying ministerial orders the Alberta government had announced. These would have notably included an order allowing the administration of cross-sex hormones in exceptional cases, such as where children are already in the midst of the intervention, or where minors aged 16-17 have parental, physician, and psychologist approval. By excluding the order from the court’s consideration, Egale was able to make a superficially more compelling case against the law, arguing it was not tailored to the complex needs of children experiencing gender dysphoria.
Under these circumstances, it would at minimum have been much more appropriate for Justice Kuntz to exercise her judicial discretion to refuse an injunction, until such a time as the ministerial orders were issued and a full accounting of the HSAA’s impacts could be made. After all, no one was being irreparably harmed by legislation not in force. It was certainly plausible that the proclamation and ministerial orders would have reduced the risk of irreparable harm that Justice Kuntz identified. This is to say nothing of the possibility that Justice Kuntz may have acted in a manner contrary to law, and contrary to the constitution, in preventing the law’s coming into force in this way. Notably, the Supreme Court has held that Canadian courts are not to issue “private references” about potential legal issues. Less than four years ago, the Alberta Court of Appeal further held in somewhat analogous circumstances that it was inappropriate for the King’s Bench to hear a constitutional challenge to the Kenney government’s Critical Infrastructure Defence Act based on only “hypothetical scenarios”.
Justice Kuntz’s reasoning is unfortunate. It suggests a failure to grasp the core issues underlying the HSAA’s contested provisions. It abdicates the pressing need to protect minors from unnecessary, irreversible, and potentially devasting interventions that the medical profession has, for one reason or another, failed to adequately regulate on its own. Moreover, it poses a serious risk of undermining public confidence in the administration of justice. As polls have confirmed, a majority of people in Alberta – and across Canada – are supportive of either full or partial restrictions on puberty blockers, cross-sex hormones, and sex reassignment surgeries for minors. A decision like this one will inevitably be seen as an instance of judicial overreach into the realm of provincial democratic decision-making, aligning with the beliefs of the federal Liberal government which has made no secret of its eagerness to see courts strike down this law.
In the aftermath of Justice Kuntz’s decision, Alberta is left with two options which it may wish to pursue simultaneously. One is to appeal the injunction, including the claim that the HSAA’s coming into force can be pre-emptively halted. The other is to re-enact the relevant sections of the HSAA, ideally while invoking Section 33 of the Charter – also known as the notwithstanding clause or parliamentary supremacy clause. The great Alberta premier Peter Lougheed most notably championed the clause to address instances of Ottawa-appointed judges overstepping their legitimate authority or making serious errors of judgement affecting provincial jurisdiction. By invoking Section 33 to protect its own interpretation of Charter rights, Alberta would be following the intentions of one of the key architects of the notwithstanding clause.
As a practical matter, the first option may take too long and will become moot if amendments are implemented. But the second option presents challenges of its own. Particularly if Section 33 is invoked, such action would no doubt give rise to what have become entirely predictable protests by members of the Canadian legal and political establishment who view the clause as an illegitimate device used by governments to violate rights. In the context of Egale, specifically, establishment opposition to Section 33 will only be reinforced by the “liberal misinformation bubble” which continues to surround the medical transition of minors.
However, this establishment outrage is becoming a less effective constraint as electorates become more comfortable with provincial invocations of Section 33 to contest judicial decisions offside with common sense. Voters recently re-elected governments in Saskatchewan and Ontario that had invoked Section 33.
When combined with the serious harms caused by the interventions at issue, the Alberta government has a strong mandate to move forward in the hope this misinformation bubble will finally burst.
Geoffrey Sigalet is a senior fellow at the Macdonald-Laurier Institute, director of the UBC Research Group for Constitutional Law, and an assistant professor of political science at the University of British Columbia Okanagan.
