By Pat Shannon
Background
A.B., assigned female at birth, and now 14 years old, has identified as a boy since age 11. He attended grade 9 under his chosen name and his teachers and peers referred to him as a boy and with male pronouns. As he grew older and entered puberty, the changes to his body began to worsen his symptoms of gender dysphoria. These are feelings of profound discomfort that may arise from the incongruity between body and gender identity. Because of these symptoms, in March 2018, A.B. attempted suicide.
With the help of his mother, A.B. sought medical care. This included sessions with a registered psychologist, who concluded that A.B. met the diagnostic criteria for gender dysphoria and made a referral to the Gender Clinic of the BC Children’s Hospital.
There, a Pediatric Endocrinologist assessed A.B. and concluded that hormone therapy appeared reasonable and in A.B.’s best interests.
It is at this point that A.B.’s father informed the Gender Clinic that he did not consent to hormone therapy for his child. The Clinic responded that the father’s consent was not needed. A.B. was mature enough to provide informed consent on his own. However, the clinic made efforts to provide the father with information and guidance, which he resisted.
A.B.’s father instead obtained an injunction from the Provincial Court of British Columbia, preventing his son from commencing treatment.
A.B. then applied to the Supreme Court of British Columbia, by way of a Family Claim, for a declaration that it would be in his best interests to undergo medical treatment for gender dysphoria, including hormone therapy. A.B.’s mother joined her son in this request.
The Court’s Analysis
In support of his claim, A.B. provided the court with the Affidavits of his mother, his psychologist, his pediatric endocrinologist, and the assessment of a psychiatrist with the BC Children’s Hospital, speaking to his capacity for informed consent. These experts all assessed A.B. as competent to consent to the hormone treatment proposed for him. It is worth noting that experts determined that A.B. had the cognitive abilities appropriate for his development stage. In other words, he was a typical 14-year-old boy.
The medical care team also maintained that delay of treatment was not a neutral option for him. A.B.’s body was undergoing permanent physical changes. Denying treatment could lead to needless suffering and the risk of victimization and bullying.
A.B.’s father responded with his own application to extend the injunction further. He pleaded for “the opportunity for a more fulsome hearing to shed more scientific light onto the implications of gender transition treatment for his adolescent child.”1
In support of that position, A.B.’s father presented the Affidavits of Quentin L. Van Meter, MD and Dr. Miriam Grossman, American professionals who have spoken out against transgender identities and medical transition. Dr. Grossman’s website describes her as “one hundred percent MD, zero percent PC.”2 Dr. Van Meter, president of the American College of Pediatricians, a conservative society of children’s health care providers, has stated that “transgender [sic] is actually a delusional disorder [...] it’s a state of mind with no biologic basis for it that can be found.”3
In his analysis, the Honourable Mr. Justice Bowden found that A.B.’s father was being “somewhat disingenuous.”4 He suspected that the father’s true motive was not to obtain a more fulsome hearing, but rather to prevent his son from transitioning now or in the future. In support of this statement, Justice Bowden outlined the various measures the father had taken over the procedural history of the case to delay proceedings and to frustrate good faith attempts to provide him with medical information about his son’s condition and treatment.
With respect to the two American doctors, Grossman and Van Meter, Justice Bowden noted that their opinions were of a general nature and did not actually address the particular circumstances of A.B.
The Court, in assessing the totality of evidence before it, took the position that A.B.’s consent was sufficient for treatment to proceed without the father’s consent, that waiting was not a neutral option in light of A.B.’s worsening gender dysphoria, and that there should be no further delay in treatment.
The court then issued a declaration that the father’s attempts to persuade A.B. to abandon treatment for gender dysphoria, addressing A.B. by his birth name, and referring to A.B. as a girl or with female pronouns whether to him directly or to third parties was "family violence" under s. 38 of the Family Law Act.
Cause for Celebration
This decision should be celebrated for three reasons.
The first is that it acknowledges the intense suffering transgender youth may experience as they enter and pass through puberty, and that postponing transition until adulthood is far from a neutral option. In cases like A.B.’s, which are by no means exceptional, affirmative treatment via hormone therapy may literally save their lives. The fact that the court appears to recognize this reality, already well known to the transgender community and their allies, is encouraging. That Justice Bowden conducts this analysis without shaming, and instead affirms the gender identity of A.B., is also meaningful.
The second reason for celebration is the declaration of the court that the father’s refusal to respect his son’s name, pronouns, and gender identity should be considered family violence. Family Violence has a specific meaning under British Columbia’s Family Law Act. It is an inclusive term, defined at section 1 of the Act, and captures not just physical and sexual harm but also emotional and psychological abuse. This includes “unreasonable restrictions on, or prevention of, a family member's personal autonomy.”5
Other notable findings of family violence include: (1) arguing that the actions of the other parent and the children are counter to scripture, influenced by Satan, and sinful;6 (2) engaging in obstructive conduct or unnecessary litigation;7 and (3) threatening to cause financial hardship and sending repetitive demanding emails.8
Sections 37 and 38 of the Family Law Act assert that this expansive concept of Family Violence must be applied in a “best interests of the child” analysis to determine guardianship, parenting arrangements, or contact with that child.
To return to the case before it, it would seem that the way parents choose to treat their queer and transgender children may have a bearing on the parenting arrangements and responsibilities they receive. If parents want to play a meaningful part in the life of their LGBTQ+ child, they may have to leave behind their intolerance on the courthouse steps.
The third and final cause for celebration is the Court’s finding that a typical fourteen-year-old has the maturity to make decisions about their transition for themselves, even while contending with significant psychological distress. In British Columbia, any person under the age of 19 is considered a minor or an infant.9
Under ss. 17(2) and (3) of the Infants Act, a minor may consent to medical treatment only if:
(a) the medical professional has explained to the infant and has been satisfied that the infant understands the nature and consequences and the reasonably foreseeable benefits and risks of the health care, and
(b) the medical professional has made reasonable efforts to determine and has concluded that the health care is in the infant’s best interests.10
Justice Bowden finds that both of these conditions are satisfied in A.B.’s case. This is an important decision, as many young transgender people face resistance and often outright opposition from one or both parents when seeking to transition. The door is open for other young people of A.B.’s age to apply for treatment, regardless of what their parent or parents believe.
It is also encouraging that the Court did not take a stigmatizing or critical view of A.B.’s mental distress and, in particular, his suicide attempt. Instead, Justice Bowden was able to see A.B.’s mental health status in the wider context of the challenges he faced as a young transgender person experiencing worsening dysphoria, in a world that is rarely accepting of gender minorities. Many transgender people fear that their mental health status will be used against them when seeking to transition. The Court’s compassionate treatment of A.B. in this case offers some small comfort in that regard.
Cause for Concern
I do have one significant reservation about this decision, namely, the Court’s focus on a clinical assessment of A.B.’s gender dysphoria by medical professionals. In particular, the Honourable Justice Bowden notes that A.B.’s treatment began with an assessment by a registered psychologist, who “concluded that A.B. met the diagnostic criteria in adolescents of DSM-5 and diagnosed him with gender dysphoria.”11 Here the Court refers to the Diagnostic and Statistical Manual of Mental Disorders or “DSM-5,” a document published by the American Psychiatric Association that defines and classifies mental disorders. It is worth noting that the Standards of Care of the World Professional Association for Transgender Health or “WPATH” made use of the term gender dysphoria some years before the DSM-5 used it to replace the outdated and stigmatizing term “gender identity disorder.”12
Many transgender people do not experience gender dysphoria as a mental illness or diagnosable condition (as contemplated in the DSM-5). Some transgender people do not experience gender dysphoria at all.
In their excellent article, “Gatekeeping hormone replacement therapy for transgender patients is dehumanizing,” legal scholar, bioethicist, and cyborg witch Florence Ashley notes that transgender people may seek to transition in pursuit of “gender euphoria,” the satisfaction arising from correspondence between gender identity and gendered features associated with a gender not assigned to them at birth.13 This may occur with or without a corresponding experience of dysphoria. Ashley also mentions that some seek hormone therapy as an act of “creative transfiguration” that escapes the dysphoria/euphoria dichotomy entirely, dipping into the realm of “creativity and aspirational aesthetics.”14 In short, the lived/felt experience of transgender people does not always fit neatly within the comfortable model of the illness framework.
Transgender identities are part of normal human diversity; they are neither inherently disordered nor a mental illness requiring assessment, referral, and fixing. Ashley puts it perfectly when they state that “treating gender dysphoria [as a mental flaw to fix] is pathologising and, because it pathologises normal human variance, dehumanising.”15
What does this mean for young people like A.B.? The Informed Consent model, adopted in British Columbia for adults, should simply be applied as-is to youth who meet the capacity test under the Infants Act. A self-reported desire for medical transition, along with an informed consent process that ensures that the young person understands the effects and risks of Hormone Replacement Therapy, should be sufficient to commence treatment.
Any application of the “best interests” test, under s. 17 of the Infants Act and s. 37 of the Family Law Act should not require a dehumanizing assessment or a confirmatory diagnosis of gender dysphoria. Given that A.B. had the capacity and maturity to understand the effects and risks of Hormone Treatment, his own testimony about his embodied experience of being transgender should have been sufficient evidence that hormone therapy was in his best interests. Requiring medical experts to opine on A.B.’s own felt experience reveals a troubling mistrust of transgender voices. It was enough, in my view, to have expert evidence that he was mature enough to understand what he was asking for. For a more fulsome argument for the agency of transgender young people, I recommend Florence Ashley’s article “Thinking an ethics of gender exploration: Against delaying transition for transgender and gender creative youth.”16
Does this mean that the Court would have refused treatment to A.B. if he had not experienced severe distress? I do not believe we can say for sure (though I have my doubts). The emphasis placed by the court on A.B.’s medical assessments is at least somewhat a function of the evidence and submissions of A.B. and his counsel. This is not a criticism of their approach, of course. Counsel cannot be faulted for attempting to make the most compelling argument possible. The uncomfortable reality is that framing dysphoria as an illness that requires urgent treatment and emphasizing distress gets results. This is something the transgender community knows all too well, as many report having to emphasize and centre their pain and suffering to receive treatment.
But A.B. should not have had to offer up his distress to receive treatment, and I am concerned that this case will serve to amplify the common myth that being transgender is a disease to be fixed or solely a source of pain. As someone who identifies as non-binary, my gender is often a source of great happiness and its exploration is an aspect of my human quest for self-actualization. The narrative that shapes the core of A.B.’s position in this case may erase transgender voices who are already ignored and silenced in medicine and policy spheres. Perhaps more dangerously, the focus of the Court’s analysis on A.B.’s assessment and diagnosis may lead to future gatekeeping of transition, particularly for youth.
1 AB v CD and EF, 2019 BCSC 254 at para 45 (“AB”)
2 Miriam Grossman, MD, “Miriam Grossman MD” (July 15, 2019), online: <www.miriamgrossmanmd.com>
3 Australian Associated Press, “US professor, who says being transgender is a ‘delusion’, to speak at WA university” (August 15, 2018), online (article): The Guardian <https://www.theguardian.com/australia-news/2018/aug/15/us-professor-who-says-being-transgender-is-a-delusion-to-speak-at-wa-university>
4 AB supra at para 43.
5 Family Law Act, SBC 2011 c 25, s1(d)(ii)
6 SAH v JJGV, 2018 BCSC 2278
7 MWB v ARB, 2013 BCSC 885
8 Hokhold v Gerbrandt, 2014 BCSC 1875
9 Age of Majority Act, RSBC 1996 c 7, s1
10 Infants Act, RSBC 1996, c 223, ss17(2)–(3)
11 AB, supra at para 14.
12 Florence Ashley, “Gatekeeping hormone replacement therapy for transgender patients is dehumanizing” (2019) J of Med Ethics, Epub ahead of print July 13, 2019 <doi:10.1136/medethics-2018-105293> at p 2.
13 Ibid.
14 Ibid.
15 Ibid.
16 Florence Ashley “Thinking an ethics of gender exploration: Against delaying transition for transgender and gender creative youth” (2019) Clinical Child Psychology and Psychiatry 24(2) sagepub.com/journals-permissions, <DOI: 10.1177/1359104519836462journals.sagepub.com/home/ccp>
Pat Shannon is a staff lawyer and Legal Educator with the YWCA of Metropolitan Vancouver, where they provide legal assistance to single mothers who have left abusive relationships. Pat works out of the Downtown Eastside, on the traditional, ancestral and unceded territory of the Coast Salish peoples.