The case of NK v AH, 2016 BCSC 744, created a heartening precedent for transgender children in BC. JK, the child of NK and AH, was receiving gender affirming medical intervention to prevent the onset of puberty. He had already socially transitioned to express as a boy. His father was opposed to the treatments and the transition. The father applied to the courts for an order barring any further treatments and ending all contact between JK and anyone “advocating transgenderism.”

The mother and JK both submitted applications to have a child advocate appointed to represent JK in the proceedings. Justice Skolrood ultimately decided to appoint a litigation guardian—someone to direct counsel on JK’s behalf—rather than appointing a child advocate. His reasoning was that JK was only eleven years old and Justice Skolrood did not want to put JK in the middle of his parents’ litigation.
Justice Skolrood found that this case was distinct from other family law conflicts because it was about JK directly and his role in determining his own future. As a result, Justice Skolrood decided that JK had a right to participate, though it was up to the court to determine in what capacity.

This particular issue does not appear in other reported family law cases in BC, but it does come up in two cases in Ontario. In J.P.K. v. S.E., 2017 ONCJ 306, the child was identifying as gender fluid non-binary. Although the manner in which the child came to the decision to identify this way was an issue between the parents, the judge found it was not a factor in the custody decision because both parents were supportive of the child’s right to identify as they preferred.

In Halton Children’s Aid Society v. G.K., 2015 ONCJ 307, the children had been removed from the mother’s care because of allegations that she was forcing the elder child, S, then four years old, to express and identify as a girl. Justice O’Connell found that S was expressing a mix of gender preferences, but not a clear gender identity. She ordered that neither parent dress S as a girl or force certain gender roles. If S expressed a desire to “dress as a girl,” the caregiving parent was to respect that and inform the other parent and the society.

These cases reveal that judges deem it important to allow children agency in regards to their own gender, rather than simply allowing one parent decision-making authority over the matter.

Although these are currently only three cases, they appear to be laying the groundwork for supporting children’s agency—and participation, if they are old enough—in making decisions about their gender identity and expression when their parents are engaged in family law litigation. Parents, and the lawyers who advise them, should consider how best to support this agency and avoid making their children’s gender a part of their conflict with the other parent.

This article does not provide legal advice and the information should not be taken as such. For proper legal advice and current information about the law, you must speak to a lawyer.