The Justice Centre intervened in the case of AB v. CD, which was heard September 3-5, 2019 at the BC Court of Appeal.
The case concerns a female-born minor proceeding with testosterone treatments to transition to the opposite gender. A lower court Order prohibits the publication of the names of the born-female child (“AB”), the child’s father (“CD”), the child’s mother (“EF”) and the medical professionals involved in this case. The court’s Order also prohibits using the pronouns “she” and “her” to refer to this born-female child.
The father and mother divorced about four years ago. Since that time, their female-born child was frequently in trouble in school, seeing school counselors on a regular basis.
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 continued to meet with school counselors who supported AB presenting to others as a male. They referred the child to a psychologist (“Dr. IJ”), who then referred the child to “Dr. GH” at the BC Children’s Hospital. In December of 2018, Dr. GH sent the father a letter stating that the Children’s Hospital would begin giving the child testosterone within two weeks, without the father’s consent. The father then filed a court application to prevent the treatment from going ahead without his consent.
On February 27, 2019, Justice Bowden of the Supreme Court of British Columbia declared that it was in the best interests of the child to receive the controversial cross-sex hormone treatments and/or pubertal suppressant drugs, and/or whatever other treatment may be recommended by the BC Children’s Hospital, including surgeries such as mastectomy.
Justice Bowden further ordered that the female-born child be acknowledged and referred to as male, and be referred to only by the child’s new male name, both in the legal proceedings and generally. This Order applies to AB’s father and to all persons.
Further, Justice Bowden also specifically forbade the father from attempting to persuade AB to abandon this experimental treatment, which carries life-altering, permanent consequences. Calling the female-born child by the name assigned at birth or trying to persuade the child not to proceed with irreversible treatments, would constitute “family violence” under BC’s Family Law Act, according to Justice Bowden.
As an intervenor to the case, the Justice Centre will explain how children have a legal right to the protection of those who love them the most and know them the best: their own parents. The Charter protects the liberty and security interests of parents in the raising 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 will also argue that compelled speech violates free expression as protected by section 2(b) of the Charter and has been described by the Supreme Court of Canada as “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. By ordering the child’s father to express agreement with, or consent for, the hormone treatment, the BC lower court violated the father’s Charter right to freedom of expression.
Neither the government nor the courts will pick up the pieces of this child’s life if they are wrong regarding these treatments. It will be the parents.
There should be no irreversible medical treatment until the parents agree, or the child reaches an age with the requisite maturity of a “mature minor”.
In the fall of 2018, Children’s Hospital staff pressured the child’s father to consent to the treatment prior to him launching a court application. The father had grave concerns about starting the treatment prior to proper consideration being given to treating AB for depression. The father also has grave concerns about the treatment itself, for reasons set out in the paragraphs below.
According to a 2011 Swedish study, people who 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 result in irreparable changes such as increased risk of cancers, heart disease, osteoporosis and permanent infertility. Other changes 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 evidences 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. It may be triggered by peer pressure, or by social environment. But gender confusion typically desists following puberty.
The psychologist who was treating AB, Dr. IJ, 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.
The Supreme Court of Canada has ruled that the Charter gives parents rights generally to make decisions for the good of their children. The law recognizes that nobody is more invested in protecting children then their parents. Parents across Canada, regardless of creed, race or political view, have a deep personal and abiding interest in their children’s health and long-term happiness. The Charter, like the U.N. Declaration on the Rights of the Child, recognizes that parents are typically in a far better position than the state to raise children, and to make decisions regarding their care.
Part of what qualifies a minor to be recognized as legally “mature” (able to make adult decisions independently from her parents and from government) is her ability to think through difficult issues, and deal maturely with opposing viewpoints.
In cases involving teenage Jehovah’s Witnesses who refuse life-saving blood transfusions, one of the things considered by courts, when assessing whether the minor is legally “mature” and able to make this decision on her own, is her capacity to hear and consider differing viewpoints. If a child is already dealing with significant emotional and mental stress that impedes her ability to rationalize and consider competing medical opinions, she will not be able to handle differing advice (for example, doctors urging her to accept a blood transfusion while religious leaders urge her to refuse this) and cannot therefore be deemed legally “mature.”
Justice Bowden’s Order prohibits the father from trying to persuade his female-born child to refrain from experimental and irreversible testosterone treatments. This assumes that the child is not sufficiently mature to handle differing opinions, and to think through the pros and cons of different options. If true, this means the child is not a mature minor. If the child is not a mature minor, the child cannot decide on serious and irreversible medical treatments; it’s up to the parents. Yet the lower court views the child as mature enough to decide on experimental medical treatments, but not mature enough to deal with the father’s objections.
The BC Court of Appeal released its decision on January 10, 2020, finding in part for the Appellant father on two out of three appeals. The finding of the lower court that the father’s disagreement with treatment options for his child amounted to “family violence” was overturned, with the Court of Appeal noting that this erroneous finding serve to “polarize” the father and child unnecessarily. The Court also overturned parts of the lower court’s restrictions on the father’s speech. The Court of Appeal held that the lower court had erred in finding that the father could not continue to discuss his views on treatment options with his child. The Court of Appeal also affirmed the right of the father to openly discuss his views with personal confidants, counselors and lawyers regarding his child, and was not compelled to use his child’s new male name and pronouns. However, the Court of Appeal found that the father must continue to use the new male name and pronouns when speaking to his child, or while in the child’s presence.