This appeal concerns a family law dispute between A.B., a 14-year-old transgender boy, and his father, C.D. The names of all the parties have been anonymized to protect their privacy. A.B. wishes to receive gender-affirming medical treatment. His doctors recommend this, and his mother, E.F., is supporting him in accessing the treatment. Because his father has opposed this treatment, A.B. sought an order from the BC Supreme Court to enable him to access the health care services he seeks.
Justice Bowden granted A.B.’s application and ordered that A.B. is exclusively entitled to consent to his own gender-affirming medical treatment. The judge also found that attempting to persuade A.B. to abandon his treatment, addressing him by his birth name, and referring to him as a girl or with female pronouns constitute family violence under the Family Law Act. A.B. was also granted permission to apply to change his legal name and to change his gender without parental consent.
A.B. also asked the court to stop C.D. from publishing, speaking or giving interviews about the case and to stop sharing information about A.B.’s health with third parties.
In response, Justice Marzari granted A.B. a protection order under the Family Law Act restraining C.D. from attempting to persuade him from abandoning treatment, addressing A.B. by his birth name, and referring to A.B. as a girl or with female pronouns to A.B. directly or to third parties. C.D. is also prohibited from directly or indirectly publishing or sharing information about A.B.’s sex, gender identity, sexual orientation, mental or physical health, medical status, or therapies with third parties.
C.D. appealed the decisions of Justices Bowden and Marzari to the BC Court of Appeal arguing, among other things, that the two decisions impact his Charter-protected right to free expression and his rights as a parent.
The Court of Appeal ruled that the Infants Act gives the teen the exclusive right to consent to care.
The Infants Act provision (section 17) says that
- If a youth’s care provider has explained the nature of the treatment, and is satisfied that the youth understands the treatment and its risks and benefits; and
- If the care provider has made a reasonable effort to determine what is in the youth’s best interest and has concluded that the treatment is in the best interests of that youth,
then the youth is the only person who needs to consent to treatment.
So, when a youth consents under this provision, the parents do not have the right to stop treatment, regardless of any agreements or court orders between the parents about guardianship.
West Coast LEAF’s Involvement
West Coast LEAF was granted intervenor status on the issue of how the Charter applies and what sort of balancing might need to occur between C.D.’s Charter rights and A.B.’s. We argue that C.D.’s Charter rights do not come into play, because he is not arguing that any section of the legislation is violating his rights, or that an action taken by government harmed his rights. If the court were to consider the Charter, we argue that A.B.’s rights to self-determination, autonomy, and equality are in line with the lower courts’ findings, and should be upheld.
This appeal was heard over two-and-a-half days, from September 3 to 5, 2019.
The Court of Appeal has reserved judgement with respect to the other issues raised in the appeal; a decision may take months.