A recent ruling from the B.C. Court of Appeal has reinforced the importance of gender identity issues and trans rights, while scaling back on the definition of what constitutes “family violence.”
In a written decision, the three-judge panel considered the ruling of two lower court judges in the case of A.B. v. C.D.
Both courts had previously found that a mature minor, although not of legal age, can consent to medical treatments, such as hormone therapy, without parental consent.
At the heart of the case is a 15-year old minor, only identified in public documents as A.B. Born a female, A.B. identified as a boy at an early age. The teen eventually changed his name to reflect his gender identity.
With the support of his mother, A.B. also began to seek out medical intervention into order to aid with the eventual transition from a female body to a male one. Medical experts and doctors who had treated him were of the view that hormone therapy was appropriate and in his best interests. They were also of the view that A.B had the capacity to consent to such treatment.
However, A.B.’s father did not agree.
He refused to cooperate with his son’s treatment. Beyond that, he refused to call his son by his name, electing to refer to him by his dead name, thereby actively misgendering him.
The matter was eventually brought before the courts, with A.B.’s father seeking to bar his son from obtaining the hormone therapy necessary to conform with his identity. He sought to exclude him from doing so on the basis of his age.
Although technically categorized as an infant under provincial legislation, A.B.’s maturity and independence as a mature minor was recognized by the court.
The lower courts recognized A.B.’s autonomy and his ability to make independent, informed decisions, under the guidance and supervision of medical professionals. The B.C. Court of Appeal confirmed this, saying that A.B,’s consent to hormone treatment is valid, with no further consent from his parents being required.
This comes as a major win for LGBT2Q rights, and specifically for the trans community.
The legally recognized ability for transfolk to make highly personal and important health-care decisions in an independent and unencumbered manner is vitally important. Extending this ability to mature minors acknowledges the biological reality of hormonal changes that occur during the onset of puberty and helps to better support bodily integrity and dignity.
It further entrenches Canada's position as a leader on LGBT2Q rights in the global community.
One area that the B.C. Court of Appeal somewhat scaled back on, however, was on the issue of family violence in the context of anti-trans hate speech.
While both lower courts found that A.B.’s father's conduct constituted “family violence”, which required legal intervention in the form of a protection order to ensure the minor's safety, the B.C. Court of Appeal was not so strident.
Instead of characterizing the father's actions as a form of emotional or psychological abuse, the B.C. Court of Appeal fostered a more conciliatory approach. It encouraged the father and son to find common ground and to put their disagreements aside.
In some ways, the court's position may downplay the potential harm caused by a parent's actions in a case like this.
However, it also protects freedom of speech—even if that speech is somewhat repugnant—and encourages reconciliation and rapprochement in close familial relationships, which is always to the benefit of the community and the individuals involved.
The court further affirmed the teenager’s autonomy in this manner however.
It confirmed and empowered A.B.’s ability to disengage in conversations with his father about his gender identity and medical treatment that he may find uncomfortable or offensive.
In finalizing its more deliberate approach on issue, the court replaced the father's protection order with a conduct order. Although a conduct order is a somewhat less formal order, it is a legally binding and enforceable order nonetheless.
And, importantly, nearly all of the same conditions in the protection order remained in place for the conduct order.
This includes, among other things, a condition that the father not address A.B. by his dead name or refer to him as a girl or using female pronouns. It also prohibits the father from attempting to persuade his son from abandoning medical treatment or from publishing, sharing or distributing information about his identity, medical status, or sexual orientation with anyone except his lawyers and those closest to him in full confidence.
All in all, the order echoes the ultimate determination of the court—integrity, independence and autonomy must be afforded to transpeople, even if they haven’t reached their 18th birthday just yet.