B.C. teenager free to move forward with gender-affirming surgery after mother's lawsuit tossed

·4 min read

A teenager in B.C. is free to move forward with his gender-affirming chest reconstruction surgery after a Supreme Court justice tossed his mother's attempt to stop the procedure, finding she made "egregious misstatements" while fighting an issue that's already been settled in court.

Lawyers for the teenager, who turns 18 this spring, said he was "relieved" to hear the justice had ruled in his favour.

"Our client is hopeful he can get on with his life ... and get back to being a teenager," read an emailed statement from lawyers Adrienne Smith and Claire Hunter on Monday.

"Our client wishes to keep the details of his private life private, however he wanted to give this comment today so that other trans youth might not be so anxious that an unsupportive parent could unduly interfere in their health-care choices."

The CBC is not identifying the teenager, identified in court documents as Y.Z., or his parents in order to protect the teenager's privacy.

Issue of consent already settled in B.C.

The teenager, who was assigned female at birth, was originally supposed to have his chest reconstruction surgery on Nov. 6. It was cancelled after his mother won an urgent, ex parte court order to stop the procedure with 24 hours to spare.

The mother sued the teenager's doctor and plastic surgeon, demanding they stop treating her child without her permission until the courts had a chance to rule on the issue of consent. Y.Z. applied to have the lawsuit thrown out on Nov. 16, arguing it was an abuse of process.

The mother's ex parte order — a court order granted quickly without giving notice to the respondents — was supposed to buy the court time to argue the issue of a young person's ability to consent to their own health care.

What the mother failed to tell the court, according to Monday's judgment, was that that debate was conclusively settled in B.C.'s highest court last year — meaning the judge who granted the procedure-blocking order in November did so without realizing the key issue of consent had already been resolved.

"It was not properly explained to this court that a similar case has recently been decided," Justice Diane Cheryl MacDonald wrote in Monday's judgment.

"There is clearly a broader public debate regarding whether gender-affirming surgery is in the best interest of youth. In B.C., that debate has been resolved in favour of surgery."

Besides leaving out the legal precedent, MacDonald said, the mother also withheld important personal information from the court.

MacDonald said the mother presented the case as though she was Y.Z.'s sole guardian with "unconstrained guardianship rights." In fact, she shares joint custody with the teen's father, who was identified as W.X.

The mother did not mention W.X. at all in her application, or the fact that he supports their child's transition and believes he is "mature enough to make his own health-care decisions."

Court order from 2006

Critically, the court noted, a family court order issued in 2006, after the teenager's parents separated, said mother and father have to "follow the directions of the mutually agreed upon health-care provider" if there is ever a dispute about the child's health care.

Y.Z.'s doctors and social worker support his transition.

MacDonald said the mother made "egregious misstatements" in failing to mention those facts.

The mother responded to the omissions by saying she had filed her original application "on short notice" in "an emergency situation" with days left before the November surgery date.

Applications for urgent ex parte orders in B.C. courtrooms require "full and frank disclosure of all material facts." Failing to disclose all of those relevant facts was grounds for dismissal in the mother's case — even before considering the issue of precedent.

The case was dismissed as an abuse of process.

"Based on my above concerns, and the lack of legal and factual basis to support the orders sought, Y.Z. has satisfied his burden to strike the claim because it is certain to fail," read the judgment.