In A.B. v. C.D. (2020 BCCA 11) the British Columbia Court of Appeal (the “BCCA”) examines the question in the context of s. 17 of B.C.’s Infants Act, which allows a minor child to consent to health care provided that a health care provider has explained, and the minor understands, the benefits and risks associated with the treatment, and that the treatment is in the minor’s best interests.
AB, almost age 15, and his medical team maintained that it is in AB’s best interest to undergo hormone therapy as part of his transition from female to male, satisfying the requirements of s. 17. AB’s father, CD, opposed AB’s decision and sought to assert his right as a parent to prevent it.
The Court of Appeal upheld an order declaring AB validly able to consent to treatment, concluding that s. 17 of the Infants Act was met, and that the treatment could continue. In addition to reviewing the legislative intent behind the Infants Act, which permits minors to consent to their own medical treatment in certain circumstances, the court stated that parental liberty may be infringed by the state when it is necessary to protect a child whose life and security are at risk.
AB, assigned female at birth, has identified as a boy since age 11.
AB’s parents are separated and share parenting responsibilities over AB under the terms of a separation agreement.
AB began to socially transition at 12 years of age, enrolling in school under a chosen male name and using male pronouns with teachers and peers.
Around 13 years of age (after 2 years of consistently identifying as male), AB wished to pursue hormone therapy, a medical procedure that would align his body more closely with how he perceives his gender.
A medical team concluded that AB met the criteria for gender dysphoria (a medical condition where a person experiences significant distress because the gender identity they experience differs from their genetic or biological gender, and how others perceive them) and would be a good candidate for hormone therapy.
AB’s medical team explained to him the nature, consequences, foreseeable risks and benefits of this treatment, and presented to AB a detailed consent form that laid out these risks. AB decided to proceed with the treatment and signed the form. AB’s mother, who supported him through the process, also signed the form.
AB’s father strongly opposed his treatment and commenced litigation to prevent AB from proceeding with the hormone therapy.
Three orders were made in the underlying litigation:
- A February 2019 order of Justice Bowden that declared AB validly able to consent to treatment under s. 17 of the Infants Act, and declared that it was in AB’s best interests to be referred to as male, and that he receive medical treatment for gender dysphoria under ss. 37 and 38 of B.C.’s Family Law Act. It was also ordered that attempting to persuade AB to abandon treatment for gender dysphoria amounted to “family violence” under B.C.’s Family Law Act, and that the publication by any person of any information that may disclose the identities of AB, his father or his mother is prohibited.
- An April 2019 protection order of Justice Marzari that restricted the father’s ability to speak with others, including media outlets and AB, about AB’s decision to receive hormone therapy. The order further restrained the father from trying to persuade AB not to pursue treatment and from sharing certain information relating to AB with certain third parties (except his lawyer). This order followed several alleged breaches of Justice Bowden’s publication ban.
- A July 2019 order dismissed the action initiated by the father as vexatious and an abuse of process.
The father appealed all three orders.
At the time the appeal was heard, AB was nearing his 15th birthday.
Before turning to the merits of the appeal, the court considered various preliminary applications, including i) whether it should refuse to hear the father’s appeal because he had repeatedly breached the orders under appeal, including giving interviews in breach of the publication ban, and ii) whether the appeal was moot because AB had already begun hormone treatment.
The court declined to exercise its discretion on either ground, given the importance of the issues raised in the appeal.
The main issues on the appeal were whether i) Justice Bowden had erred in allowing AB to undergo hormone therapy and ii) Justice Marzari erred in making a protection order against the father. The father argued that the orders violate his Charter-protected freedoms of belief and expression and what he termed “parental rights”, and that the orders were procedurally unfair and do not reflect AB’s best interests.
Justice Bowden’s Order Confirming AB’s Ability to Consent to Gender Transition Treatment
Though the BCCA determined that Justice Bowden erred in making declarations regarding AB’s best interests unrelated to guardianship, parenting arrangements or contact under ss. 37 and 38 of the Family Law Act, it found that there was no basis to interfere with Justice Bowden’s order that AB’s consent was sufficient for the treatment to proceed under s. 17 of the Infants Act.
The BCCA recognized that there are circumstances where a court may overrule a health care provider’s decision about a minor’s best interest under the Infants Act; however, a court’s jurisdiction is limited as the legislative intent of the Infants Act acknowledges the autonomy of mature minors, and the expertise and good faith of health care providers. The BCCA was satisfied that AB’s consent was sufficient, as he understood the benefits and risks of the hormone therapy.
The BCCA dismissed the father’s claims of procedural irregularities.
Justice Marzari’s Protection Order
Although the court recognized that the father’s refusal to accept AB’s chosen gender and to address him by the name he chose is disrespectful of AB’s decisions and was hurtful to AB, it concluded that Justice Marzari erred in making a protection order because the evidence was insufficient to establish a finding of “family violence” (i.e. psychological or emotional abuse) within the meaning of British Columbia’s Family Law Act. The court noted that the father was entitled to his views, and that AB is a “mature minor” who is capable of disengaging in conversations he finds offensive.
The BCCA set aside the protection order, but substituted it with a conduct order under s.227(c) of the B.C. Family Law Act (which does not require a need to establish family violence), prohibiting the father from publishing information or providing documentation relating to AB’s gender identity.
The father challenged the orders of Bowden J. and Marzari J. on the basis that they violated his Charter rights under ss. 2(a) and 2(b) (freedom of conscience and religion, and freedom of expression) and s. 7 (freedom of life, liberty and security of the person). The father argued that his s. 2(a) rights were violated because the orders require him to adopt views that are not his own. He further submits his s. 2(b) rights are infringed as they censor him from using AB’s proper name, compel him to refer to AB as a boy and use male pronouns, and that they censor him from discussing the case. The father further argued that any order restraining him from discussing AB’s hormone treatment with AB prevent him from “playing an important parental role”, thus violating his liberty right under s. 7 of the Charter.
The BCCA recognized the principle that the Charter does not apply to judicial orders made in private disputes, such as family law disputes, but also acknowledged that Charter values are “not to be ignored by courts when making such decisions”. The court reminded the parties that the right to freedom of expression is not absolute, and that limitations may be justified in light of competing rights, interests, and values, such as the best interest of the child.
At paragraph 208, the court writes:
“Similarly, the right of parents to make decisions for their child in fundamental matters such as medical care, which is part of the liberty interest of parents protected under s. 7 of the Charter, is not unconstrained. That liberty interest is based on the common law's long-standing recognition that parents are in the best position to make all necessary decisions to ensure the well-being of their child. That recognition is based on the presumption that parents act in the best interests of their child. In circumstances where parents are not acting in the best interests of their child, that parental liberty interest may be infringed where it is necessary for the state to intervene to protect a child whose life and security are in jeopardy. This occurs in circumstances where the child is unable to assert his or her rights.”
The BCCA found that the father’s actions were contrary to AB’s best interests. A limited conduct order, made with the objective of protecting AB’s best interests, was consistent with the Charter values: the father would have the right to have and hold his opinion about AB's gender identity and choice of medical treatment in private discussions, but not publicly with third parties.
- Parents are not entitled to impose their will on informed and mature minors regarding medical treatment – including treatment of gender dysphoria.
- While the Charter does not apply to judicial orders made in private disputes, such as family law matters, underlying Charter values are not to be ignored. However, a parent’s rights under the Charter may be limited if it is in the best interest of a child to do so.
- Thinking forward – we (hopefully) have COVID-19 vaccine soon – this case will be a consideration in deciding whether a child can choose to have the vaccine or decline it, against one parent’s views/preferences.