In today’s blog, Fort St. John articling student Jaye Rutledge writes about an upcoming British Columbia Court of Appeal case dealing with the rights of a transgender child to obtain hormone therapy for gender dysphoria and a protection order made against the child’s father. Jaye is a transgender woman and she is pleased to offer Family Law services to all LGBTQ community members across BC and in our Fort St. John and Dawson Creek office. Our Transgender Rights Family Law Lawyers are pleased to assist you with your family case across BC and in Calgary, Alberta.
Transgender Rights Family Law Lawyers 1 877 602 9900
The National Post published an article today on a key BC Court of Appeal case that our Transgender rights family law lawyers have been following closely regarding a parental dispute and litigation over support for a child’s gender identity and gender expression.
The British Columbia Court of Appeal is preparing to hear a Family Law case regarding a 14-year-old transgender boy’s decision to start hormone therapy. The mother of the child supported him in obtaining hormone therapy while the father opposed it and sought a court order preventing him from obtaining it. Both the mother and father, in this case, were represented by lawyers and the child also had his independent legal counsel to represent his interests in court. Our Transgender Rights Family Law Lawyers explain that A court may appoint a lawyer to a child under s.203 of the Family Law Act in very high conflict cases or in cases where the child has a unique perspective and the child is old enough for their views to be seriously considered by the court.
This case arises out of the father’s conduct regarding the child after the child was diagnosed with gender dysphoria3 and was assessed as ready to begin hormone therapy. Because the father was opposed to his child receiving hormone therapy he made an application with the Provincial Court, where he obtained an emergency order from the court that his son’s treatment be delayed until the Supreme Court could have a hearing on whether it was in the child’s best interests to receive treatment. The Supreme Court made its decision three months after this Provincial Court order was made.
At the Supreme Court hearing, both parties presented expert evidence regarding the effectiveness and safety of hormone treatment, evidence about how the child would likely respond to treatment, and how this would ultimately affect the child’s best interests. The court expressed concern that the father was using this hearing as an excuse to delay treatment for his son but the court nonetheless allowed the evidence to be presented. Based on the evidence provided the court held that it would be inappropriate to withhold treatment further given the extent to which the child was suffering from gender dysphoria. Quoting from the Infants Act, the court additionally stated that health providers only needed informed consent from the child receiving treatment, not the father. Transgender Rights Family Law Lawyers know that these cases are complex and challenging and hiring a family lawyer familiar with the issues is critical.
Protection Order Barring Father From Discussing Case In Media
After the unsuccessful application by the father, the child brought a personal protection order against the father to restrict him from speaking to the media about the case or sharing any documents regarding his medical information. Although this kind of protection order is not routine in a Family Law case, a similar thing occurred in T. (A.) v. H. (L.T.), 2006 BCSC 1689 (B.C. S.C.), where a mother was prohibited from communicating in public an unfounded allegation about the father sexually assaulting their child.
What Constitutes Family Violence in BC?
Transgender Rights Family Law Lawyers point out that to obtain a protection order under the Family Law Act, the court must find that the person seeking the protection order is at risk of family violence carried out by a family member. In finding that this was the case and making the protection order against the father, the court emphasized that family violence can be psychological and that the father resolutely speaking to his son in a way that invalidated his gender identity (for example, by always calling him a girl) constituted psychological harm. The court gave many reasons why the order should be granted, including that the interviews risked revealing the identity of the child to the public and to people who were likely to cause him physical or emotional harm, that the interviews “publically shared and made lighthearted comments about [the child’s] depression and suicide attempts”, and that the father forced his son to watch one of these interviews. The court concluded that:
AB is an at-risk family member who is highly vulnerable. I find that his father’s expressions of rejection of AB’s gender identity, both publicly and privately, constitutes family violence against AB. Finally, I find that CD’s conduct in this regard is persistent and unlikely to cease in the absence of a clear order to restrain it.
The court declined to make the order as broad as the child requested, instead specifying it to preventing the father from referring to him as a girl, trying to convince him to abandon treatment, or share any medical information relating to the proceedings, specifically highlighting that many of the news organizations the father was speaking to “have continued to misgender AB and to publish degrading and violent comments about AB”.
49 CD’s rights as a parent are necessarily guided and constrained by the Family Law Act and orders of this Court. His rights do not include harming his child.
In addition to the orders discussed above, the court also ordered that the child was not required to get his father’s consent to change his legal name or gender on his ID. The court also took the unusual step of making an order that it was in the child’s best interest to referred to as “he” in any future court proceedings, implicitly acknowledging not only that it was harmful for the father to misgender his child but most importantly for our Transgender Rights Family Law Lawyers the Court also sagely noted that the court itself was capable of acting against the best interests of the child if they misgendered the child in any subsequent proceedings or written decisions.
Following these two lower Court decisions, the father has appealed to the BC Court of Appeal. The father seeks to overturn the decision for hormone treatment to begin, saying now that his son failed to provide proper informed consent and that the court failed to consider what was in his best interests. Because of the importance that expert evidence had in this case, many of the concerns the father raises relates to the proper use of expert evidence. The father has also appealed the protection order, essentially saying that it violates his freedom of speech. Transgender Rights Family Law Lawyers know that family cases involve focusing on the best interests of the child and less on the “rights” of their parents and that children have rights too.
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Because the father’s appeal raises many abstract rights, such as the relevance of freedom of expression in the context of determining the best interests of a child and the rights of transgender children more generally, many third parties applied to be heard by the court. These parties, called intervenors, are empowered to speak about issues relating to the case which they have a unique and different perspective on as compared to the actual parties. Seven parties applied to intervene in the case and five were granted leave to do so, three of these likely to make submissions in favour of the son’s position and two likely to make submissions in favour of the father’s position. They were granted leave to speak on the issues of consent under the Infants Act, the father’s right to freedom of expression, and the son’s right to life, liberty, and security of his person. Transgender Rights Family Law Lawyers emphasize that the court declined to hear arguments about freedom of conscience and religion in support of the father’s position.
Despite these various issues, the case at heart remains a family law case about determining what is in the best interests of a child. For generations, transgender people have been fighting for, among other things, the recognition that they are capable of determining for themselves what is in their best interests. In many ways, these fights have been successful but those opposed to transgender rights continue to insist that mature children are unable to conceive what is in their best interests, as conveyed by the father’s insistence that his son has been tricked by transgender activists into believing he is transgender when he isn’t. Notwithstanding this continued pressure on transgender youth to repress their identities, this is a good time for this issue to come before the Court of Appeal and I believe that transgender people and their supporters have reason to be optimistic about what the court’s conclusion will be.
Gender Dysphoria Glossary of Terms:
Jaye Rutledge of our Transgender Rights Family Law Lawyers provides the following glossary of terms:
1Transgender person: A person whose gender identity differs from the gender assigned to them at birth. A transgender boy is someone whose gender identity is that of a boy.
2Hormone therapy: The administration of sex hormones (e.g. testosterone) to bring a transgender person’s body more in line with their gender identity. In British Columbia, a transgender person under 18 needs to undergo a medical assessment showing that they have “a long-lasting and intense pattern of gender non-conformity or gender dysphoria3”. Many transgender people are critical of the steps and time required to obtain hormone therapy.
3Gender Dysphoria: The DSM V diagnosis of gender dysphoria for adolescents is that there is difference between one’s experienced/expressed gender and assigned gender, and significant distress or problems functioning. It lasts at least six months and is shown by at least two of the following:
- A marked incongruence between one’s experienced/expressed gender and primary and/or secondary sex characteristics
- A strong desire to be rid of one’s primary and/or secondary sex characteristics
- A strong desire for the primary and/or secondary sex characteristics of the other gender
- A strong desire to be of the other gender
- A strong desire to be treated as the other gender
- A strong conviction that one has the typical feelings and reactions of the other gender
In contrast, a transgender person may describe themselves as experiencing gender euphoria when they have positive feelings associated with living in accordance with their gender identity. For more helpful information on transgender issues and rights check out this great CBA site.