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Determining best interests of trans and gender non-conforming children

Thursday, May 09, 2019 @ 11:06 AM | By Claire Houston


Claire Houston %>
Claire Houston
Family court judges are increasingly being asked to make decisions revolving around a child’s transgender identity or gender non-conforming (GNC) behaviour.

These cases typically centre on whether and how a child or young person should be able to transition (whether socially or physically with medical assistance) to a gender different from the one they were assigned at birth.

While only a handful of decisions have been reported, these cases reveal the challenge of balancing children’s autonomy, parental authority, child welfare and anti-discrimination.
 
Family law disputes over a child’s gender identity take different forms but share similar features. Some involve applications by one parent to prevent the other parent from allowing the child to medically transition (see A.B. v. C.D. and E.F. 2019 BCSC 254 (A.B.); and N.K. v. H.A. 2016 BCSC 744 (N.K.)).

In others, parents disagree about a child’s gender non-conformity in putting forward competing custody claims (see J.P.K v. S.E. 2017 ONCJ 306 (J.P.K.); and B.D. v. M.M. [2017] O.J. No. 4121). Finally, in at least one case, parental conflict over a child’s GNC has prompted child protection intervention (Children’s Aid Society, Region of Halton v. G.K. 2015 ONCJ 307 (G.K.)). In all of the reported cases, one parent (usually the father) disputes the child’s GNC, often arguing that the other parent (usually the mother) is encouraging the child to be trans.

On the whole, judges are more sympathetic to parents who support a child’s GNC. Specifically, courts have found that parents who support a child’s GNC act in the child’s “best interests” (see Ireland v. Ireland 2007 ONCJ 11; but see Gordon v. Brown 2018 ABPC 44). Similarly, judges have found a parent’s failure to support a child’s GNC contrary to a child’s best interests. This includes refusing to use a child’s chosen name and pronoun (see A.B.). One court has also signalled that forcing a child to conform to a particular gender against the child’s wishes may constitute emotional harm (G.K.).

However, support for a child’s gender non-conformity alone is not determinative of custody. In J.P.K., Justice Roselyn Zisman awarded sole custody to a father who argued that the mother had influenced the child to identify as gender neutral. Justice Zisman found that the father was more likely to follow the recommendations of a gender identity (GI) expert and allow the child to freely explore their gender issues. And in G.K., Justice Sheilagh O’Connell maintained a shared parenting regime with agency supervision in part because the mother had prematurely socially transitioned the child from male to female.

Judges balance support for children’s GNC with reducing parental conflict. Many of the reported decisions are high conflict; indeed, parental disagreement over a child’s GNC is often fuelled by hostility and poor communication. Favouring the supportive parent may increase parental conflict, which may pose a risk of emotional harm to the child. (On the other hand, not favouring the supportive parent risks harming the child by failing to recognize their GNC and fails to condemn any anti-trans bias underlying the unsupportive parent’s actions.)

In Davies v. Murdoch, the father refused to accept the child’s GNC, despite medical opinion to the contrary, calling the mother’s supposed campaign to turn the child trans “child abuse.” Rather than favour the supportive mother, Justice Jennifer Blishen, acknowledging the harm the parent’s conflict was causing the child, who had a close relationship with both parents, ordered joint custody with decisions on the child’s GNC to be made following the recommendations of a particular GI expert.

As Davies v. Murdock suggests, GI experts play an important role in these cases. In custody cases, judges have based their decision on the willingness of parents to follow GI expert recommendations (see J.P.K.).

In disputes over a child’s medical transition, judges have relied on GI experts to determine whether gender-affirming health care is in a child’s best interests. While GI experts can educate judges and provide evidence on the child’s best interests, disputes among experts on the appropriate treatment of GNC children require judges to approach expert opinion with care. For example, in A.B., Justice Gregory Bowden was faced with competing expert opinions on the best interests of the child seeking medical assistance to transition.

The child’s views and preferences may be a more significant factor in these cases, possibly requiring judges to hear from the child directly. In N.K., where an 11-year-old, supported by his mother, was seeking access to puberty blocking medication against his father’s wishes, Justice Ronald Skolrood explained, “this case is different from the many family law cases that come before the courts in which the views of the child are sought … this case is really about [the child] and his role in determining his own future.” Justice Skolrood appointed a litigation guardian for the child and added him as a party, finding it would be unfair to proceed without the child’s direct participation.          

Family law cases involving a dispute over a child’s gender identity are challenging, with the potential for competing expert opinions, high levels of parental conflict and undertones of transphobia. The stakes for children in these cases may be higher, with their right to self-determination hanging in the balance. As trans and GNC children become more visible, we are likely to see more of these cases. Judges will do well to continue to hear trans and GNC children’s voices while ensuring they are protected from their parents’ dispute.

Claire Houston is an assistant professor, Faculty of Law, Western University. You can e-mail her at claire.houston@uwo.ca.

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