Judge also expressed concern about the teen’s mental health if his long-awaited operation is delayed
The Supreme Court of B.C. ruled against a mother’s last-ditch attempt last month to stop her 18-year-old son from having gender-affirming surgery.
On Sept. 2, Justice Brenda Brown dismissed the application for an injunction to stop the double mastectomy operation scheduled to happen the next day. She wrote in a decision released Oct. 1, outlining her reasons, that “I do not accept that delay [of the surgery] has no implication or impact on [the teen].”
She added that the evidence provided to the court indicates that that the teen “has been suffering from gender dysphoria for many years,” and that the “current conditions with respect to his chest makes his dysphoria worse.” The judge as well noted the teen has said It makes him “so unhappy that it is sometimes difficult to live.”
Even terms surrounding the details of his surgery make the teen uncomfortable, Justice Brown wrote, and prefers to use the term “top surgery.”
The boy’s father, who favours the surgery, provided testimony that “the timing of [the teen’s] operation in my view is critical.” He added his son “wants to have this part of transition which he believes will free him once again from some of the issues which hold him back.” The operation is timed “so that he can fully dedicate the rest of the year” to getting into a good university.
The judge also expressed concern about the teen’s mental health if his long-awaited operation is delayed. It is not simply a question of having the surgery when it is convenient, so it does not interrupt with the school year, Justice Brown wrote.
“Foregoing surgery will have a significant impact on [the teen]. As such, the balance of convenience favours the respondents and favours proceeding with the surgery.”
The mother had argued that the teen, his father, and the surgeon failed to satisfy the requirements of s. 17 of the Infants Act requiring a minor to give informed consent for any medical treatment. The mother also argued that s. 7 of the Canadian Charter of Rights and Freedoms entitles her to make decisions in the best interest of her child.
Section 7 of the Charter “constitutionalizes the liberty and security interests of parents in their children, including a right to make decisions for them in fundamental matters such as medical care,” she argued, adding that parents determine the child’s best interests.
The mother said there is no need to rush into the treatment, adding that the results of the surgery are irreversible.
Justice Brown wrote that if a child does not have sufficient intelligence and understanding to have the capacity to consent, then only the parents can consent, and their consent will be adequate. But once the child has sufficient intelligence and understanding to have the capacity to consent, “then only the consent of the child will do. The power of the parents to consent on behalf of the child does not coexist with the child’s own capacity to consent or to refuse consent,” she wrote.
“It could not be otherwise,” but that is not to say that parents “not be involved in the process of explanation, instruction and advice leading to the obtaining of the informed consent of the child.”
As for irreparable harm to the mother if the operation had gone ahead, “even if the concept is “sufficiently broad to include the applicant’s role as guardian with respect to advising and explaining the medical procedure contemplated, the evidence before me indicates that the applicant has been involved in these decisions and has known of the particular surgery contemplated for at least a month.”
As such, she had “the opportunity to advise and explain and would not to be irreparably harmed were the surgery to proceed.”
Justice Brown ruled, however, that the teen is “mature enough to make his own medical decisions regarding gender affirming medical procedures.” These include the opinions of a registered clinical counsellor, a psychiatrist, and the surgeon involved.
The teen has been diagnosed with gender dysphoria and has been receiving testosterone for several years. By the age of seven, he had asked his mother “if he could change his body into a boy’s body.”
The mother was involved in the decision to let her son begin testosterone therapy in November 2019. The teen said he told his mother about the surgery and that she had known about it for at least a month ahead of the scheduled date.
The teen’s medical team has said that the boy “understands the nature and consequences and the reasonably foreseeable benefits and risks of surgery” and said a gender-affirming mastectomy surgery is in his best interests.
Brown dismissed the mothers’ application and said that she must cover her son’s and the father’s legal fees.
Lawyer Carey Linde, who was counsel for the mother in this case, says that while there are examples of gender dysphoria where affirmation surgery may be suitable, he has concerns about what he describes as "rapid onset gender dysphoria." He points to cases of adolescents, primarily young girls, who have had little background or history of feeling they are the wrong gender, but who then suddenly seek to change their sex.
"The cases I have personally been involved with are all girls, and in most cases, they have major childhood wounds," he says. "Perhaps they feel that changing genders is a way of dealing with depression or lack of self-admiration as they go through adolesence." Linde adds that there are cases of young people who have had surgery to change genders who later regret having undergone the procedures.
Justice Brown also granted the request of the teen's surgeon that he be identified by the pseudonym "Dr. Z" in these proceedings. She ruled that she is satisfied that "court openness" poses a serious risk to the surgeon and that a refusal to grant the order "would not only affect Dr. Z's personal safety, it would likely impact his ability to provide care to other patients without safety concerns or negative intrusions of privacy into the physician-patient relationship."
She wrote that patients like the teen in this case "are at a particularly sensitive stage in their lives and public scrutiny would have a negative effect on them," and that "there are also legitimate concerns about the negative effects on the physician's relationship with other patients."
Neither side opposed the request to anonymize Dr. Z, but Linde says the decision to do so creates a "new category" of medical professionals who can't be publicly named, which reduces transparency. "Even doctors who perform abortions don't get that privilege."
Linde says he does not know whether the teen has received the surgery. Neither lawyer for the teen returned a request for comment.