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BC court to hear case today of dad forbidden to refer to daughter as ‘she’

Justice Centre for Constitutional Freedoms

September 3, 2019 (Justice Centre for Constitutional Freedoms) — The BC Court of Appeal will hear oral argument in the case of AB v. CD, in which the Justice Centre for Constitutional Freedoms (JCCF.ca) is an intervenor. The hearing begins at 2:00 p.m. in Courtroom 60 of the BC Court of Appeal, 400-800 Hornby Street, Vancouver. This hearing is open to the public. 

This 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 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, the Justice Centre filed written submissions explaining 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's Factum notes:

There are good reasons for parents across Canada to prefer psychologist therapy and puberty to affirmation and cross-sex hormones to deal with gender dysphoria. In addition to creating a life-long dependence on cross-sex hormones, full surgical "transitioning" for female patients includes removal of the female genitals, uterus and breasts. Canadian parents are justifiably concerned about the long-term well-being of their children, including the possible inability to engage in a satisfying sexual relationship, permanent infertility, and profound regret. These consequences are too grave for children's immature, developing minds to comprehend appropriately.

Regarding the Court compelling the child's father to refer to his child as male, and by a male name, the Justice Centre's submissions note that compelled speech violates free expression as protected by section 2(b) of the Charter. The Supreme Court of Canada has described compelled speech 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 also 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 refrain from dissuading his child from pursuing an experimental and irreversible medical treatment, the BC lower court violated the father's Charter right to freedom of expression. The Justice Centre's Factum states: 

The state cannot lawfully compel parents to voice agreement and support for a Treatment which the parent with good reason 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.

"Neither the government nor the courts will pick up the pieces of children's lives if they are wrong regarding these treatments. It will be the parents," stated lawyer Jay Cameron, the Justice Centre lawyer arguing this case in BC.

Background Information

During the fall of 2018, B.C. Children's Hospital staff pressured the child's father to consent to the treatment for months prior to him launching a court application. The father had grave concerns about the treatment. He was also concerned about starting the treatment prior to proper consideration being given to treating AB for depression. 

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.

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. 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.

What makes for a "mature minor" at law?

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.

There should be no irreversible medical treatment until the parents agree, or the child reaches the age and acquires the maturity of a "mature minor." 

Published with permission from the Justice Centre for Constitutional Freedoms.

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