Since its establishment in 2009, March 31st has been recognized as the International Transgender Day of Visibility (TDOV). The day was initially founded by American transgender activist Rachel Crandall Crocker as a way to recognize and celebrate the accomplishments, struggles, and contributions of the global transgender community, including those who identify as gender-non-conforming or gender fluid. When the day was first established, the only recognized day for the community was the International Transgender Day of Remembrance, to honour those who had been killed due to their identity. Rachel wanted to create another day for the community dedicated to celebration instead of sorrow, to recognize the community itself, and to allow allies to show support.
As a family law firm dedicated to celebrating and supporting Alberta’s diverse LGBTQIA2S+ community in all family law and reproductive matters, Mincher Koeman is familiar with how transgender children, in particular, can be impacted by their parents’ divorce or separation. We have seen too many instances where parents have been at odds over how, or even whether to support children struggling with gender identity issues or gender dysphoria. Unfortunately, parents in a high-conflict separation or divorce may not share the same outlook on how best to help a transgender child, which can have a lasting, detrimental effect on the child’s wellbeing, as well as inter-family relationships.
In honour of TDOV 2022, we wanted to provide information and tips for parents, to help them work together to provide the best possible support for their transgender or gender non-conforming child, during and after a separation or divorce.
Gender identity for children and youth can take many forms, and one of the most common barriers for parents when it comes to providing much-needed support for their child is simply not understanding the basics. A lack of familiarity can contribute to a parent’s reluctance to acknowledge what their child might be going through, so understanding some of the key concepts can be of assistance.
Cisgender refers to a person whose gender identity and expression are aligned with the gender assigned to them at birth.
Gender Dysphoria refers to a person experiencing significant distress because their gender identity does not align with the gender they were assigned at birth.
Gender Non-Conforming is a broad term referring to any person whose gender expression and/or identity does not conform with the gender assigned to them at birth, or who does not identify with a specific gender.
Transgender refers to a person whose gender identity is different from the gender they were assigned at birth.
Two-Spirit is a term used by many Indigenous or First Nation communities to refer to a person who identifies as having both a masculine and feminine spirit. Two-spirit individuals may identify as a third gender, one that is outside of the traditional male/female binary.
Divorce or separation is often a stressful and confusing time for the children involved, especially in high-conflict situations. When a child or young person is questioning their gender expression or identity or dealing with gender dysphoria, they are likely already feeling vulnerable. If their parents are not aligned on how to support them, or worse, if one or both parents is actively challenging their position, it can be a source of incredible distress that can have a long-term mental health impact.
Canadian family law courts are required to consider a child’s best interests first when making any decisions impacting a child. Parents cannot go wrong by also considering their children’s best interests when supporting them during the parent’s separation or divorce, and beyond. In 2020, an assistant professor at Western University’s Faculty of Law, Clare Houston, published a paper in the Canadian Journal of Family Law, providing suggestions for Canadian family court judges on how to best protect and respect gender non-conforming and transgender children when overseeing family law matters. Some of these suggestions can be adapted and undertaken by parents as well, to help ensure their children feel supported and safe at a time when their family dynamic is undergoing significant change.
Parents may be tempted to impose their own preconceived notions onto their children, however, parents should allow a child to openly express their feelings without judgement or condemnation. Family law judges are encouraged to place significant weight on a child’s wishes and best interests when deciding parenting disputes, and parents should strive to do the same. A child should feel free to express their emotions and feelings to their parents, without risking the parental relationship. Parents who take the time to listen to their children will also be better positioned to work together to ensure they are meeting their child’s needs.
Often, parents of a gender non-conforming child will get caught up in what their child’s gender expression means for the child’s future. However, trying to place long-term significance onto a child’s current expressions may be futile. A child who expresses their gender in a non-conforming way at a very young age may be transgender, or they may simply be going through a developmental phase. It’s best to focus on meeting the child’s needs based on what they are expressing at the time, rather than trying to predict what it might mean in the future.
Further, the paper points out that parenting experts have said that constantly questioning a child’s gender expression can be harmful to the child, and risk causing the child to feel as though something is wrong with them.
Family courts in Canada put a significant emphasis on protecting the bests interests of any child involved in a dispute, and parents should do the same. Parents, like judges, are encouraged to assume that allowing a child to express their gender non-conformity is in their best overall interests. As the author states:
Supporting children in expressing and exploring gender protects children who may later identify as trans. It is also unlikely to harm children who later identify as cisgender and may in fact help them. Supporting gender nonconformity in future cisgender children empowers those children to come to a gender identity on their own terms.
When working to resolve parenting disputes, parents should make an effort to place their child’s well-being above all else by considering solutions that will foster confidence and security in their child.
Divorce or separation can become a combative situation when parents disagree on how to parent their children, especially when it comes to significant issues like medical or mental health care. Parents should attempt to resolve these matters in the most amicable way possible, to avoid placing a child in the middle of a volatile situation. Using dispute resolution techniques such as mediation or arbitration instead of litigating the matter in court can help to minimize conflict. Further, these alternative methods also allow families to keep the details of their dispute confidential, which can be especially important if personal decisions concerning minor children are at issue.
Overall, the best thing parents can do for a gender non-conforming child when going through a divorce or separation is to keep their child’s needs front and centre throughout the process. Demonstrating respect for the child by listening to them and working together to meet their needs can only serve to help parents maintain a close and loving relationship with the child and a healthy family dynamic as the family adjusts to a new set of circumstances.
At Mincher Koeman in Calgary, our team treats every client with empathy and compassion above all else. We pride ourselves on offering clients attentive and comprehensive legal services at a law firm that’s accessible and forward-thinking.
The family law lawyers at Mincher Koeman are exceptionally experienced with respect to parenting issues and disputes following the breakdown of a relationship. We work with families to find effective solutions that always place the best interests of the child first. Contact our office today by calling us at 403-910-3000 or reach out online.
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Calgary, AB T2P 3H6
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Canmore, AB T1W 2A2
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