Medical decisions pertaining to children can be a particularly contentious issue for divorced or separated parents who share access and decision-making ability for minor children. One issue receiving a lot of attention in the last few years is the right of a child to pursue medical treatment for gender dysphoria, including hormone therapy and surgery.
There have been numerous cases in Canada in recent years about this issue, including one father who was ultimately arrested for contempt of court after refusing to stop publicly discussing and misgendering his transgender son. In another case, a mother was granted a temporary injunction against her child’s medical team to delay her son’s gender-affirming surgery due to issues surrounding consent.
The British Columbia Supreme Court made headlines when it refused a mother’s request for an injunction to stop her transgender son’s gender-affirming surgery.
The petitioner’s son had been diagnosed with gender dysphoria at a young age and was scheduled to undergo gender-affirming surgery. The petitioner’s mother sought an injunction to postpone the surgery against the wishes of the father, who supported the son’s plans and did not wish to see the process delayed.
The mother, whose injunction application was heard the day before the surgery was scheduled, claimed her son had not given informed consent for the procedure as required under the Infants Act. She claimed the proposed surgery would have life-altering effects on her child that he was incapable of understanding at his age and sought an injunction pending the resolution of several issues by the court.
In determining whether to grant the mother’s request, the court applied the standard legal test for injunctions:
The mother produced a psychoeducational assessment that had been done on her son for reasons unrelated to the surgery issue. She claimed it supported her argument that her son did not grasp the seriousness of the surgery, or its long-term effects. While the report did indicate that her son experienced learning difficulties, it did not suggest that he was incapable of understanding or consenting to his own medical decisions.
Further, the son’s medical team provided evidence, including the opinions of a registered clinical counsellor, a psychiatrist, and the boy’s father, that he was mature enough to make medical decisions pertaining to affirming his gender. The court therefore held there was no serious matter to be tried.
The court considered whether there could be irreparable harm to the applicant in her role as an advisor to her son. The evidence showed that the mother had been aware of her son’s transition for some time and had even been generally supportive of his efforts. With respect to the surgery in particular, the mother was aware of the impending surgery at least a month before it was scheduled to take place. The court therefore found the mother had had plenty of time to offer her advice and provide her opinions about the surgery to her son. As a result, she would not suffer irreparable harm if the injunction was not granted.
The mother argued that there would be no harm to her son if the surgery was postponed. The court disagreed. The son had been suffering from gender dysphoria for many years, and his father claimed that the son’s mental health had been affected. He believed that the surgery would free him of some of these issues, which had at times caused the son to struggle with suicidal ideations. His father said that not only would the surgery do wonders for his son’s mental health, but they had chosen the timing specifically so as not to interfere with his schooling.
The son’s plan was to have the surgery at the time it was scheduled so that he could dedicate the remainder of his year to applying to a good university. Given this, the court found the balance of convenience lay with the son and not the mother.
As the test for the injunction failed on all three levels, the court denied the mother’s request.
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