B.C. Court of Appeal finds Trans teen can seek hormone treatment without parents’ consent

The British Columbia Court of Appeal has found a trans teenager can seek hormone treatment, despite his father’s objections.

The Court of Appeal found the teenager may hormone treatment even without their parents’ consent, as long as they have been assessed by a health care provider to understand the nature, consequences, benefits and risks of the proposed treatment, and as long as the health care provider opines that the treatment is in the teenager’s best interests.

In A.B. v. C.D., 2020 BCCA 11, the Court of Appeal agreed with the lower courts’ findings that transgender youth AB was considered a mature minor who had validly consented to hormone treatment under s. 17 of the Infants Act, RSBC 1996, c 223; however, it substituted the orders granted below owing to certain procedural irregularities.

AB is a transgender teenager who has identified as male since he was 11 years old and who began to socially transition when he was 12. By the age of 13, “persistent discomfort with his body” made him consider masculinizing hormone treatment.

With his mother’s support, he met with a psychologist, a psychiatrist and a pediatric endocrinologist, who all issued favourable assessments to the effect that he suffered from gender dysphoria and showed a detailed understanding of the risks and benefits of the medical procedure he sought.

However, his father, CD, opposed and filed an application in the Provincial Court of British Columbia seeking to prevent AB from receiving treatment without his consent. After the provincial court temporarily barred AB’s treatment, both AB and CD initiated proceedings in Supreme Court.

Justice Gregory Bowden ruled that AB’s consent was valid under the Infants Act, and that delaying the treatment was a risk, as AB’s “ongoing and unnecessary suffering” had already led him to once attempt suicide. Bowden issued an order declaring that CD’s acts of misgendering AB and of trying to discourage AB from seeking treatment amounted to family violence. He also issued a publication ban, prohibiting the disclosure of the identities of AB and his parents.

In a separate proceeding, Justice Francesca Marzari also issued a publication ban in favour of the medical professionals involved, who, like AB, had been the subjects of “substantial online commentary.” Marzari then granted a protection order in favour of AB, restraining CD from misgendering AB, deadnaming him (referring to him by the name associated with the gender identity he was transitioning away from) and attempting to convince him to abandon treatment.

Writing for the B.C. appeal court, Chief Justice Robert Bauman and Justice Barbara Fisher allowed CD’s appeal of the Bowden order on a limited basis. The appeal court justices set aside Bowden’s “bald declarations” as to AB’s best interests, purportedly under ss. 37 and 38 of the Family Law Act, SBC 2011, c 25.

They did, however, approve of how Bowden had deferred to the determinations of health care providers on whether AB’s consent was valid. “The Infants Act has made it clear that health care professionals, not judges, are best placed to conduct inquiries into the state of medical science and the capacity of their patients when it comes to questions of minors’ medical decision-making,” wrote Bauman and Fisher.

With respect to Marzari’s decision, the appeal court justices said that Marzari had appeared to agree with Bowden’s declaration of family violence. As Bowden had not actually explicitly addressed this particular issue in writing his decision, the appeal court justices said that such a declaration of family violence had no basis.

Thus, Marzari’s protection order also had no foundation, and was replaced with conduct orders under s. 227(c) of the Family Law Act. Under such orders, CD was required to refer to AB by his male pronouns and to identify AB by his chosen name. CD was also prohibited from publishing information or providing documentation to anyone relating to AB’s gender identity, health and medical status or treatments, subject to limited exceptions.

Other than these procedural findings, the appeal court justices substantially ruled in favour of AB, stating that “s. 17 of the Infants Act has been complied with, AB’s consent to that treatment is valid, and no further consent from his parents, in particular CD, is required in that regard.”