On January 10, the BC Court of Appeal released its judgment in a case concerning the ability of a youth, who is now 15 years old, to consent to gender-affirming healthcare that is supported by his mother and his doctors in the face of strong opposition from his father. The Court affirmed that the youth (anonymized as A.B.) had provided valid, informed consent to treatment under the Infants Act and that his father could not impede access to that treatment.
The Court accepted that the father had persistently and publicly caused harm to his son by misgendering him (calling his son by female pronouns), deadnaming him (referring to him by his birth name) and attempting to persuade him to abandon the treatment both in person and via the media.
Judges of the BC Supreme Court had previously found that the father’s conduct toward his son constituted “family violence” under the Family Law Act and a one-year protection order had been granted to the youth when his father did not stop this conduct.
The BC Court of Appeal found that his father’s rejection of A.B.’s identity has caused A.B. significant pain and has caused a rupture in their relationship, which is not in the youth’s best interests. However, the Court overturned the lower court’s findings around family violence and the need for a protection order. In this judgment, the Court highlighted concerns about limitations on the father’s freedom of expression and his ability to parent as he sees fit. Instead, the Court granted a conduct order that places restrictions on the father’s communications to and/or about his son in public, including to the media.
West Coast LEAF intervened in this case to argue that any Charter rights alleged by the father should not trump the youth’s rights to self-determination, autonomy, and equality.
Typically, we tell you about cases before or just after we’ve been to court to make our submissions. We wanted to be very intentional about when – and how – to communicate our involvement in this particular case. On the one hand, we wanted to share our strong and continuing support for the right of youths to obtain health care that supports their self-determination, autonomy, and equality—including the right of trans youth to obtain gender-affirming health care. On the other hand, we did not want to unwittingly add to the harm that A.B. has experienced, and that countless other trans folks experience daily, online and in the media. We took our cues from A.B. and his counsel, awaiting a positive outcome for him and other trans youth who may find themselves in a similar situation.
It is great news that A.B.’s medical treatment is assured and we are heartened that the Court recognized the transphobic harm he experienced. We are somewhat concerned, however, that the Court has unduly narrowed the definition of family violence by looking for evidence of the father’s intention to harm and by failing to appreciate the scope and type of family violence experienced by transgender youth.
We’re extremely grateful to have had the pleasure of working on this case with pro bono counsel Catherine Wong of Saltwater Law.