This appeal concerned 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. sought gender-affirming medical treatment. His doctors recommend this, and his mother, E.F., is supportive of his accessing the treatment. Because his father has opposed this treatment, A.B. sought an order from the BC Supreme Court to allow 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 receiving gender-affirming medical treatment. The judge also found that his father’s efforts 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 were akin to family violence under the Family Law Act. The judge also granted A.B. 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. When C.D. did not stop doing this, A.B. went back to court.
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. was 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 BC Court of Appeal heard this case from September 3rd to September 5th, 2019. At the end of the hearing, the Court ruled that the Infants Act gives A.B. the exclusive right to consent to care. His parents do not have the right to stop treatment, regardless of any agreements or court orders between the parents.
The BC Court of Appeal released its full judgment in this appeal on January 10, 2020. The Court provided reasons for its decision given at the end of the hearing that the youth had provided valid consent to gender-affirming health care and that his father could not impede his ability to continue with that treatment. The Court overruled the findings of the BC Supreme Court that the father’s mis-gendering, deadnaming and attempts to persuade his son to stop treatment constituted family violence and for which a protection order was granted. Instead, the Court was concerned about the impact of the lower court decisions on the father’s freedom to express his views about his son’s healthcare and the father’s ability to parent as he sees fit. Recognizing that the father’s conduct had caused serious harm to A.B., the Court did grant a conduct order placing restrictions on C.D.’s communications to and about his son in public, including prohibiting communication to the media.
Decision of the BC Court of Appeal
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 argued 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. We argued that A.B.’s rights to self-determination, autonomy, and equality are in line with the lower courts’ findings, and should be upheld.
January 2020 news alert: Court upholds youth’s access to gender-affirming health care