Counselling your child against serious health risks of changing gender not ‘family violence’: BC court ruling

Lawyer John Carpay is President of the Justice Centre for Constitutional Freedoms (JCCF.ca), which intervened in the BC Court of Appeal in the case of AB v. CD.

In the case of AB v. CD, the BC Court of Appeal has allowed a 15-year-old female-born minor to continue receiving puberty blockers and testosterone, which will likely lead to the irreversible destruction of the minor’s sexual function and fertility.

The Court has deemed AB to be sufficiently mature to consent to the risks of taking testosterone, about which the BC Children’s Hospital has warned: heart disease, high blood pressure, diabetes, decreased good cholesterol (HDL), increased bad cholesterol (LDL), emotional change (anger and irritability), and vaginal abrasions and tears.

The Hospital warns that the body sometimes converts testosterone to estrogen, which may increase the risks of ovarian, breast, cervical and uterine cancer. The Hospital states that  the long-term effects of testosterone and puberty blockers on younger adolescents are unknown, and that the safety of testosterone is not fully understood. Girls who take puberty blockers and testosterone will develop into adults who may look and sound like men, but lack male genitalia. Even after gender re-assignment surgery, as adults they will not be able to father children. Nor will they likely be able to get pregnant and bear children, with natural female sexual maturity having been prevented. CD, who is the father of AB, is devastated.

Neither the lower courts nor the Court of Appeal have grappled with the compelling evidence showing that gender identity confusion usually goes away by itself. The vast majority of boys and girls revert to identifying with their natal sex by the time they are 18, if they are allowed to go through puberty naturally and receive appropriate encouragement and support to embrace biological reality. With psychological counseling instead of hormones and drugs, the success rate ranges from 70 percent to 90 percent, depending on which of the many studies that one relies on. This has been demonstrated by Dr. Kenneth Zucker and Dr. Susan Bradley, who ran the Child Youth and Family Gender Identity Clinic  (GIC) in Toronto from 1981 to 2015, successfully treating hundreds of children struggling with gender dysphoria.

The courts have also failed to take heed of a 2011 Swedish study of 324 sex-reassigned persons (191 male-to-females, 133 female-to-males), which shows that the long-term outcome of such treatments resulted in life-long psychological trauma and increased chance of suicide. Even in a progressive and socially liberal country, the suicide rate in these patients was 19 times higher than the general population, as these individuals passed through a post-treatment period of relative happiness but then began to experience significant morbidity and regret. Across the world, a growing number of transgender adults are warning that gender re-assignment surgery has brought  them inexorable misery.

Without delving into these concerns, the Court of Appeal has confirmed that deference must be given to healthcare professionals, whose decisions made under the BC Infants Act about whether minors are able to consent to particular treatments, and whether those treatments are in their best interests, are only reviewable by the courts in very limited ways. Yet many of these health practitioners are on an affirmation-only bandwagon, or are afraid to speak out against it. This ensures that many young teens are moved along a path toward transition as soon as they step into a “gender identity clinic.” Parents with serious concerns about social contagion, or other mental health concerns prompting their child’s sudden desire to transition, will find little comfort in this ruling. Hopefully a future case will put evidence of these concerns before the courts.

The small silver lining on this very dark cloud has come by way of this Court now modifying the lower court rulings that drastically restricted CD’s parental rights and his freedom of expression.

Justice Gregory Bowden of the BC Supreme Court issued an Order that CD could not attempt to persuade his female-born child to pursue any treatment other than puberty blockers and testosterone. Justice Bowden further ordered CD not to address his child by the child’s birth name, or to refer to his female-born child as “she” or “her” in any conversation with anyone. Justice Bowden went on to declare that violating these draconian  measures would constitute “family violence” under BC’s Family Law Act.

The BC Court of Appeal overturned this order in part, ruling that “there was insufficient evidence in the unique circumstances here to ground a finding of family violence—that is, emotional or psychological abuse—as defined in the Family Law Act.” The Appeal Court added that Justice Bowden “raising the issue of family violence in the context of this case caused the parties to become increasingly polarized in their positions, thus exacerbating the conflict and raising the stakes in the litigation. We see none of this to be in AB’s best interests.”

The father is now once again entitled to communicate his views about the risks and dangers of AB’s current treatment to AB. The Appeal Court noted that AB is a mature minor with capacity to make medical treatment decisions, and this capacity “includes the ability to listen to opposing views.” AB’s capacity to consent does not remove all parental involvement from medical decisions: “Parents can be involved in the process of explanation, instruction and advice leading to the obtaining of the informed consent of the child. They should be involved as part of that process wherever possible.”

Regarding CD’s freedom of expression, the Appeal Court noted that “the values underlying the right to freedom of expression include finding the truth through the open exchange of ideas, which extends  to protecting minority beliefs that the majority regard as wrong or false.” However, the Court also ruled that the father’s right to express his opinion publicly and to share AB’s private information to third parties “may properly be subject to constraints  aimed at preventing harm to AB.  The Court will not restrict “CD’s right to express his opinion in his private communications with family, close friends and close advisors, provided none of these individuals is part of or connected with the media or any public forum, and provided CD obtain assurances from those with whom he shares information or views that they will not share that information with others.”

While AB continues to receive testosterone injections, this Appeal Court ruling at least shows greater respect for freedom of expression and for parental rights than did the lower courts. But it’s a small victory in the overall context of this sad case.