BC Appeal Court in part overturns lower court ruling which infringed free speech of father of transgender child

VANCOUVER: The Justice Centre for Constitutional Freedoms (jccf.ca) is reviewing the January 10, 2020 decision of the British Columbia Court of Appeal in the case of a father who is deeply concerned with his minor female-born child undergoing controversial gender transition treatments. In part, the Court of Appeal has overturned a lower court ruling which limited what the father could say regarding his child’s transition, including to third party persons.

The now 15-year old child involved in the case was born female, but with the mother’s support decided to proceed with testosterone treatments to transition to the opposite gender about four years after the parents’ divorce. At the time, the child was frequently in trouble at school and seeing school counselors. The father maintained that the child had untreated depression and was self-harming, which needed to be addressed before the minor child started irreversible hormone treatments that carry risks of permanent sterility and further health complications.

The case, A.B. v. C.D., protects the names of the child (A.B.), the child’s divorced father (C.D.) and mother (E.F.), and the medical professionals treating the minor, from publication. The lower court Order prohibited anyone, including the child’s father, from using the pronouns “she” and “her” to refer to the female-born child now self-identifying as male. The Order extended to third party conversations.

With the support and affirmation of school counselors, the female-born child began to transition to a male identity, including taking on a male name. This was kept secret from the father, even though custody is legally shared between him and his ex-wife, and despite his legal right to know all significant happenings and developments pertaining to his own child. The father only found out after seeing his child in a school yearbook, dressed up as a boy with a new male name below the picture.

The child eventually saw Dr. G.H. who advised the father by letter that the Children’s Hospital would be giving the child testosterone within two weeks, even without the father’s consent, puberty blocking hormones, and any other recommended treatment including removal of breasts. The father filed a Court Application to prevent the treatment and argued the child was not mature enough to make such a life-altering, irreversible decision, but Justice Gregory Bowden of the Supreme Court of B.C. ruled against the dad.

Justice Bowden decided it was in the child’s best interests to be given cross-sex hormones and puberty blockers. The Justice further ordered it would be considered “family violence” if the father called his female-born child a girl, referred to the child by female birth name, and/or tried to persuade the child to reconsider these irreversible, controversial gender-transitioning treatments.

The Justice Centre obtained intervenor status to make submissions to the Court of Appeal, which heard the case in September 2019. The Justice Centre argued that children have a legal right to the protection of those who love them the most and know them the best: their own parents. The Canadian Charter of Rights and Freedoms protects the liberty and security interests of parents in the raising of and caring for their own children, including a right to make decisions for them in fundamental matters such as participating in elective irreversible medical interventions.

The Justice Centre’s submissions included the Supreme Court of Canada’s statements that compelled speech is “totalitarian, and as such alien to the tradition of free nations like Canada.” In addition to protecting every person’s freedom to speak, hear and listen, the Charter protects the right not to be compelled by the government (including the courts) to utter words which are not one’s own.

The father argued that the child should receive no irreversible medical treatment unless decided by both parents, or until the child reached adulthood or the maturity of a “mature minor.” Especially concerned that his female-born child would have a mastectomy or have treatments that resulted in lifelong sterilization, the father appealed to the court to recognize that the child may outgrow the desire to live as a gender opposite to biology.

Evidence put before the court include a 2011 Swedish study that individuals who do receive affirmation therapy, cross-sex hormone therapy and surgical manipulation of their bodies, experience life-long psychological trauma and a suicide rate 19 times higher than the general population.

Further, cross-sex hormones may result in irreparable changes such as increased risk of cancers, heart disease, osteoporosis and permanent infertility. Other changes can include permanent voice changes, facial hair, and lower bone density.

In 2018, Brown University published Lisa Littman’s findings from a case study with 256 parents evidencing the rapid onset of gender dysphoria in adolescent girls. The study demonstrates a correlation between social media use and peer influence as twin factors contributing to the phenomenon.

Gender dysphoria is often linked with mental health problems and childhood trauma, which may include family conflict and divorce. It may be triggered by peer pressure, or by social environment. But gender confusion typically desists following puberty.

Dr. IJ, a psychologist who was treating AB, has publicly stated that only 2% to 20% of transgender kids stay transgender. The vast majority grow out of it. Dr. IJ’s claim is consistent with medical research, which shows that more than 80% of gender-confused children accept their biological gender by the time they are 18, absent “affirmation therapy” and cross-sex hormones.

However, if gender-confused children receive pubertal suppressant drugs and opposite-sex hormones, most will continue with the gender transition process past the age of 18. An increasing number of individuals who transition have deep and profound regrets, thereafter de-transitioning and enduring lifelong issues with fertility and health as a result of earlier treatments.

In its factum before the Court of Appeal, the Justice Centre stated, “The state cannot lawfully compel parents to voice agreement and support for an elective treatment which the parent believes is dangerous, harmful and against the interests of impressionable children… The state cannot compel parents to forget their daughters and remember sons in their stead.”