The Yukon Human Rights Board of Adjudication has ruled the territorial government discriminated against a pregnant woman by eliminating access to midwifery for nearly three years, ordering compensation after finding the government’s actions created adverse impacts on all pregnant women in the territory.
The decision released by the board of adjudicators concluded that the Yukon government offered midwifery as a public service under the Human Rights Act, then denied access to this service through the Midwives Regulation and later program suspensions, resulting in discrimination based on sex and pregnancy.
The board found the government prohibited private midwifery on April 15, 2021, even though no public program existed and no midwives could register under the new rules. It determined this left pregnant women without any midwifery options until February 2024, except for a brief six-month period.
The complaint was brought by Marsha Cooke, who argued she was unable to access midwifery care for her third and fourth pregnancies because the regulation required midwives to be registered and licensed, despite no registration system or program being in place.
Cooke previously gave birth to two children at home with a private midwife, as discussed during a human rights tribunal from Nov. 3 to 7, 2025. The decision document notes private midwifery had been permitted in the Yukon until the regulation came into force in April 2021, resulting in midwives being prohibited from practicing unless registered.
The board found that no midwives in the territory could meet the criteria at the time.
The board found that from April 15, 2021, to February 12, 2024, midwifery services were unavailable or limited. It said this created adverse effects on pregnant women, including Cooke, who wanted midwifery care and home birth support as previously provided but could not access either during two pregnancies.
During the November human rights tribunal, commission lawyers Michael DeRosenroll and Emma Dickson argued pregnancy is a sex‑based characteristic and that the Act prohibits discrimination in the provision of public services, including midwifery. They said no registered midwives were available for home births until March 2024.
DeRosenroll and Dickson argued that the government’s decision to enact the regulation removed the option for pregnant women to have home births with a midwife, creating a discriminatory impact. They said Cooke’s inability to access midwifery during two pregnancies amounted to discrimination against pregnant people.
Cooke later filed a Complaint Addendum claiming continued discrimination due to staff shortages in the Yukon Midwifery Program, which prevented access to birthing services. The decision confirmed midwifery services were suspended on January 12, 2023, with only pre‑ and post‑natal care available.
Government lawyers Mina Connelly and Lesley Banton argued that enacting regulations is not a service under the Act and that regulatory lawmaking cannot be considered discrimination. They said the regulation applied equally to everyone and that no one had access to midwifery services at the time.
Connelly and Banton argued that human rights law requires showing that a protected group was denied a benefit available to others outside the group. Because no ground had access to midwifery services, they argued that no discrimination occurred. Additionally, both argued that the complaint was an attack on legislation and outside the tribunal’s jurisdiction.
The board rejected those arguments, finding that midwifery was a service offered by the government and that prohibiting and later limiting that service had a discriminatory effect. The decision document states the government “cannot confer a service and then deny access to it,” asserting the adverse impact was tied to Cooke’s protected characteristic.
The board found that the policy of not implementing the regulation and later limiting the program placed an entire group, pregnant women, at a disadvantage. It cited case law establishing that discrimination can be unintentional, indirect, and based on the effects of a policy rather than its wording.
The majority concluded the Yukon government adversely impacted pregnant women by depriving them of the ability to have a home birth attended by a midwife, contrary to the systemic discrimination section of the Human Rights Act.
The board ordered the Yukon government to pay Cooke damages for injury to dignity, self-respect, and feelings, noting she experienced emotional distress and distraught emotions because of the denial of midwifery services.
The decision document states Cooke’s births occurred at home without medical assistance because she lacked access to midwifery care. It found the government did not show justification, accommodation, or reasonable cause for the discrimination, as per the document.
“The policy of not implementing and limiting the benefit/service of midwifery placed an entire group at a disadvantage,” the adjudication panel wrote in their Jan. 12, 2026, decision.
Contact Jake Howarth at jake.howarth@yukon-news.com