B.C. court ruling against father in child hormone treatment case sets dangerous precedent

Lawyer John Carpay is president of the Justice Centre for Constitutional  Freedoms (JCCF.ca) which has applied to intervene before the BC Court of Appeal in the case of AB v. CD and EF.

The case of AB v. CD and EF is now before the British Columbia Court of Appeal.

A 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 biologically accurate pronouns to refer to this born-female child.

The story of AB

The father and mother divorced about four years ago. Since that time, their female-born child was frequently in trouble in school, seeing school counsellors on a regular basis.

With the support and affirmation of school counsellors, the female-born child began to transition to a male identity, including taking on a male name.

This was kept a 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 counsellors who supported AB presenting to others as a male. They referred the child to a psychologist (“Dr. IJ”) who advocates for transgenderism, who then referred the child to “Dr. GH” at the B.C. 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.

Father worried about long term consequences

For the next several months, Children’s Hospital staff pressured the father to consent to the treatment. The father had grave concerns about the so-called treatment, and with good reason. 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 their 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.

The full and long-term results of gender transition treatments received by minors are unknown at this time, due to lack of medical information and lack of comprehensive, long-term studies on the treatment’s impact on children.

The court ruling under appeal

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 further 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 everyone else, effectively requiring people to re-align their conscience, beliefs, opinions and expressions accordingly.

Further, Justice Bowden also specifically forbade the father from attempting to persuade AB to abandon this experimental treatment that carries life-altering, permanent consequences.

Calling the female-born child by the name assigned at birth, or referring to the child using biologically correct pronouns, or trying to persuade the child not to proceed with irreversible treatments, would constitute “family violence” under BC’s Family Law Act, according to this judge.

Compelled speech violates Charter freedom of expression rights

The Justice Centre is applying to intervene in this case to address the violation of constitutional rights and freedoms, namely the rights of children and parents as protected by section 7 of the Canadian Charter of Rights and Freedoms: the right to “life, liberty and security of the person.”

In addition to the rights of children to be protected by those who love them the most and know them the best (the parents), this case also raises the important issue of compelled speech.

The court, which is an arm of government, has told the father what he must call his own child, in conversations with the child and even in conversations with third parties.

Compelled speech violates free expression as protected by section 2(b) of the Charter, and has been described by the Supreme Court of Canada 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.

The Charter is violated when the courts, or any apparatus of the state, demands that citizens refer to any individual with words that are not freely chosen by them, especially when uttering such words commits the speaker to a belief they do not adhere to.

A mockery is made of free expression, not to mention liberal democracy itself, if citizens are ordered by the courts to speak against their will that which they regard as wrong or false.

Protecting children by protecting 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. Further, a child’s section 7 Charter rights include the right to have the protection of parents, and the right to have parents make decisions for the well-being of the child.

Human minds are not fully developed until sometime around the age of 25.  Prior to reaching the age of 18, children cannot buy alcohol, tobacco or marijuana. Children can’t vote, run for office, or join the military.

They can’t even get a tattoo without the permission of both parents.

By law, they must have parental guidance for a great host of activities. At the age of 12 or even 15, children cannot possibly understand the full and long-term implications of cross-sex hormone treatment, resulting in lower bone density, permanent changes to voice and facial hair, and irreversible infertility.

Parents across Canada, regardless of creed, race or political view, have a deeply 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 than their parents.

Section 7 of the Charter thus protects a parent’s right to withhold consent for an elective, experimental and largely irreversible treatment such as puberty blockers, cross-sex hormones and gender reassignment surgery, pending a child reaching a certain age and becoming what is legally described as a “mature minor.”

The government, which includes the courts, is precluded—except in the rarest of circumstances not present in this case—from interfering with the parent’s rights to raise his child in accordance with what he reasonably believes is best for the child, and to protect the child from the irreversible consequences of unnecessary and risky medical interventions with irreversible consequences, such as gender transition treatment.

What makes for a “mature minor” in law?

Part of what qualifies a minor to be recognized as legally “mature” (able to make adult decisions independently from her parents and from the 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.”  Neither the government nor the courts will pick up the pieces of this child’s life if they are wrong regarding these treatments.

It will be the parents.