In many ways, Max is a typical 14-year-old. He eschews soft music in favour of rock and heavy metal, likes to wear hoodies, giggles when he’s nervous and has a flair for drawing animals. He can be opinionated and sarcastic one moment, shy and withdrawn the next.
His insecurities, however, run deeper than run-of-the-mill teenaged angst.
“I have a male brain that doesn’t match up with the body I’m in,” says the Grade 9, Surrey, B.C., student, who was the female gender at birth.
“It’s like being trapped in a cage.”
Max is now at the centre of a complicated legal fight over who gets to decide the course of treatment for his gender dysphoria. Max and his mom, Sarah, with the support of the gender clinic at B.C. Children’s Hospital, want to proceed with a treatment plan that would involve injecting Max with testosterone — a key step, they say, in Max’s desire to transition from a female to a male body.
But Max’s father, Clark, who is separated from Sarah and shares joint custody of Max, believes things are moving too fast and worries about the treatment’s risks. Why can’t Max wait until he’s an adult before taking such a big step? What if Max comes to regret his decision, but the changes are irreversible? Doesn’t the father get to have a say in the matter at all?
The case raises difficult questions about parental rights, about child autonomy, about how young is too young to make serious medical decisions. The result is a messy ethical and legal tangle, where a number of deeply interested parties — all with competing points of view on this issue, and all with the child’s best interest in mind — are at odds over how to proceed.
I have a male brain that doesn’t match up with the body I’m in
The hospital maintains the decision about treatment is ultimately Max’s to make — and Max’s alone. That was a staggering notion for the father, which led him to file an application in B.C. provincial court to block the treatment. On Monday a family law judge agreed to adjourn the case for two weeks to allow Sarah time to hire a lawyer; for the time being the hospital cannot carry out any treatments.
None of the family members’ real names are being used in this story. The Provincial Court Act in B.C. prohibits the identification of any child or party to a “family or children’s matter before the court.” Sarah and Max had wanted to be identified using their real names. “If I’m not named, it’d be like I’m hiding,” Max says.
While such legal disputes are rare, experts say family conflicts over proposed treatments and parental consent are likely to increase as more young people are referred to gender clinics across the country.
Clark insists he is not anti-transgender; he bought Max a transgender pride flag last Christmas. He just worries Max is being steered down a path without considering all the options.
“I just want to do what’s best for Max. And sometimes that’s tough love.”
Clark added later: “I have no animosity towards Sarah on this issue. I think we both believe we are doing the right thing. And I believe we both have Max’s best interest in mind.”
For as long as he can remember, Max has always preferred hanging around boys. He never played with female gender-stereotypical toys, such as dolls. His family chalked it up to him being a “tomboy.”
Max’s coming out moment came in Grade 7 when he stumbled across a video on YouTube. Titled “Boy,” the Danish short film documents the struggles between Emilie, a transgender boy, and his mother. The film opens in a clothing store. The mom picks out a dress for Emilie, but Emilie prefers military-style clothes.
“It just kind of clicked right away,” Max says.
After watching the film, Max stood in front of the mirror — just as Emilie does in the film — and cut his hair, which at the time stretched to the middle of his back.
By the time he started Grade 8, Max had undergone a “complete overhaul” of his identity, Sarah says. School staff were notified that he preferred to be known by his chosen name, not by the female name he was given at birth. Max had also started binding his chest.
While these changes helped, Max says the transformation still felt incomplete.
“Even if I’m open with who I am, I’m still insecure.”
There are times, he says, when he’ll go silent because his voice comes out sounding too effeminate. He often gets distracted by how “girlie” his hands look.
I didn’t quite understand transgenderism, didn’t know if I fully believed in it
Sarah says the dysphoria has led Max to try to take his own life and engage in self-harm.
“I didn’t quite understand transgenderism myself, didn’t know if I fully believed in it. But having gone through the experience I’ve gone through with my son I fully believe that, yes, it is very possible that transgenderism does exist and there are people wandering around feeling excruciatingly uncomfortable in their own skin.”
A clinical psychologist assessed Max about a half-dozen times over a period of several months, beginning in Grade 8. By the end of those sessions, Sarah says the psychologist deemed Max to be a good candidate for testosterone therapy. According to B.C. health guidelines, Max needed to have demonstrated to the psychologist a “long-lasting and intense pattern of gender non-conformity or gender dysphoria,” among other things.
The only other thing Max needed was a referral from a family doctor, which his father agreed to obtain.
In August, Sarah and Max attended the B.C. Children’s Hospital’s gender clinic, one of the busiest in North America. There they met with a team of people, including a paediatric endocrinologist, a social worker and a nurse, who laid out in plain language what the treatment would entail and all the pros and cons. A three-page “informed consent form” spelled out the risks of testosterone therapy, including that the “treatment in young adolescents is a newer development, and the long-term effects are not fully known.”
The form indicated that testosterone use would likely lead to permanent changes — such as a lower-pitched voice, facial hair and thicker hair on the arms, legs and torso — even if the treatment stopped. Taking testosterone could also lead to elevated risk of heart disease, stroke and diabetes. “It is not known,” the form says, what the effects of testosterone are on fertility. “You may or may not be able to get pregnant in the future.”
Despite the risks, Sarah and Max signed the form that day and agreed to proceed with the treatment. After three years, Sarah says she had come to a clear conclusion: Max wasn’t going through some “phase.”
“If this is what alleviates my child experiencing this dysphoria, I’d rather move forward. … If it happens to have side effects down the road, we’re OK to handle that — at least our child would still be alive.”
Hospital staff were ready to begin injections that same day, Sarah says — but she felt it would only be fair to let Clark, who did not attend the meeting, weigh in on the decision.
Clark, whose legal challenge was first reported in the alternative news website The Post Millennial, told the National Post he didn’t want to miss work that day and thought the visit to the gender clinic was exploratory. He says he was shocked to hear how quickly things were moving.
“I thought it was a long process and nothing drastic was going to really happen, at least without consent,” he says.
Clark did not sign the form. He felt the potential medical ramifications were too serious for someone Max’s age to take on.
“You don’t just jump them into things they can’t change back,” he says. “When she’s 18 and she does it, I’ll support her 100 per cent.” (During his conversations with the Post, Clark referred to Max as his daughter and used female pronouns.)
Clark says a hospital social worker tried to persuade him to come in to talk but he declined; all the information he needed was on that form. He also sent hospital staff a copy of his separation agreement, which includes a stipulation that he and Sarah get to jointly exercise “all parental responsibilities” including “giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child.”
Last month, however, Clark received a letter from the hospital. It stated that under the B.C. Infants Act, as long as a health care provider is satisfied a child understands the nature, consequences, benefits and risks of the proposed treatment and concludes that the treatment is in the child’s best interests, the right to consent “belongs to the child alone.”
“Max’s healthcare team has concluded that he possesses sufficient maturity and intelligence to be capable of consenting to his own medical care, notwithstanding the fact that he is only 14 years old. Furthermore, the team agrees that the proposed course of treatment is in his best interests.”
We’ve got to make sure Max makes the right decision
The letter goes on to state that while staff always strive to get parents onboard with a proposed course of treatment, “under these circumstances we are of the view that it is ultimately up to Max to give or withhold consent to his own medical care; neither you nor his mother can make this decision for him.”
At Monday’s court hearing, Herb Dunton, the lawyer representing Clark, said they take the position Max cannot be rushed into treatment and no injections should happen until both parents consent, Max turns 18 or the court orders treatment.
“We’ve got to make sure Max makes the right decision now,” Dunton told the court. “If they start the treatment the damage is done.”
Dunton said the credentials of the professionals recommending hormone treatment need to be evaluated and the recommendations peer-reviewed.
In adjourning the case for two weeks, the judge acknowledged he hadn’t encountered a case like this before and did not immediately know whether the provincial law that recognizes Max’s rights to give informed consent trumps family law and the parents’ joint responsibilities for caring for Max, per their separation agreement.
One legal scholar suggested Clark may face an uphill battle. “The (Supreme Court of Canada) has clearly articulated the law on minors’ capacity to consent,” said Karen Busby, a law professor at the University of Manitoba.
Busby was referring to a 2009 decision, AC v Manitoba, that basically said if minors can demonstrate mature and independent judgment — and have shown they understand the potential consequences of their decision — their views about medical treatments ought to be respected. The top court, however, did allow for some wriggle room, saying, “the more serious the nature of the decision and the more severe its potential impact on life or health, the greater the degree of scrutiny required.”
The number of referrals to the gender clinic at the B.C. Children’s Hospital rose from seven in 2007 to 80 in 2017. The transgender youth clinic at Toronto’s Hospital for Sick Children now sees over 200 referrals each year, while the Children’s Hospital of Eastern Ontario saw 180 in the last year.
“With an increasing number of referrals to gender clinics, one would expect — and we are seeing — a proportionate number of families and youth who may have discordant views on their care,” says Dr. Joey Bonifacio, an adolescent medicine specialist at St. Michael’s Hospital in Toronto.
“It is not uncommon for parents to have different views on how to care for their child with gender dysphoria, between them and their child. It is also not uncommon to see disagreement between parents.”
B.C. Children’s Hospital said it couldn’t comment on the ongoing legal challenge. But it and other clinics in Canada say before any treatment is administered, mental health practitioners will have done an exhaustive screening of the patient.
“This includes extensively exploring issues around coexistent autism, family issues, eating disorders and suicidality,” B.C. Children’s Hospital said. “The adolescent also has to demonstrate a long-lasting and intense pattern of gender nonconformity or gender dysphoria. Once assessed, some choose to start treatment immediately while others discuss other options.”
Not all clinics, however, will start right away with hormone therapy. At the Children’s Hospital of Eastern Ontario, Dr. Margaret Lawson says it’s been her practice to recommend hormone suppression medication — sometimes referred to as “puberty blockers” — for six months in youth under 16 and one year for those under 15, before starting them on hormones.
Because the effects of puberty blockers are reversible, this is a more gradual way to transition and helps the patient and parents “to be sure of what the youth wants and the parents to be comfortable supporting the start of hormones for their child,” Lawson said.
Dr. Brenden Hursh of B.C. Children’s Hospital confirmed in an email “there is some variation in practice in this regard at different centres.”
“We do not require (puberty blockers) in all children below a set age cut-off, but we would certainly use it if we felt there was benefit to the youth,” he wrote. Toronto’s Hospital for Sick Children and the Alberta Children’s Hospital in Calgary say hormone suppression is optional at their clinics, as well.
According to updated guidelines published in 2017 by the international medical organization The Endocrine Society, when it comes to sex hormone treatment, the society recommends adolescents “should initially undergo treatment to suppress pubertal development.”
Hormone treatment shouldn’t begin until the adolescent has “sufficient mental capacity to give informed consent, which most adolescents have by age 16 years.”
That said, “we recognize that there may be compelling reasons to initiate sex hormone treatment prior to the age of 16 years.”
Clinics told the Post they strive to obtain consensus among all family members prior to treatment. When conflicts arise, staff do all they can to work with family members to reach an agreement.
“Certainly, in some cases, parents and other family members are at different stages of acceptance and support at different times, but these differences usually resolve over time with repeat visits and discussions in clinic,” said Dr. Mark Palmert of Toronto’s Hospital for Sick Children.
When serious conflicts persist, the Canadian Paediatric Society recommends, “if circumstances permit, the proposed intervention should be delayed while an attempt at a resolution is made.” This could involve referrals for a second medical opinion, consultations with social workers, a bioethicist or bioethics committee.
At the Alberta Children’s Hospital, Dr. Jonathan Darwant says if one parent is adamantly opposed to treatment, they would likely arrange a second assessment by a mental health expert. If that second expert agrees the teenager would benefit from treatment, the next step would be to convene a hospital ethics team to weigh all the points of view.
Delays, however, can’t go on forever and Lawson acknowledged there may be times when she starts treatment without the full consensus of family because it’s in the child’s best interests.
“A lot of parents are afraid about what this means and the child will have regrets or blame them,” Lawson said. “But in the long-term, having done this for 14 years, it’s amazing to see how kids blossom and become comfortable in their own skin.” In time, parents “come to accept their child’s gender identity and realize that their child is the same person they have always loved.”
A lot of parents are afraid
While adolescents don’t necessarily have carte blanche decision-making power, it is a time when they begin to make autonomous decisions, Bonifacio said. “If the medical team deems the youth capable to make that particular decision then that decision is respected.”
Elizabeth Saewyc, a professor at the UBC school of nursing and principal investigator of the first nationwide trans youth survey, said putting off treatment can create long-term distress on the adolescent.
“I have seen in some circumstances … where young people have had health care delayed and denied because everybody wasn’t on board. One parent is supportive, and one is not, and nothing happens. That can be a problem,” she says. “If the clinicians, the psychologists, the endocrinologists, the family doctor, if all of them have done the assessment and have determined that this is medically necessary, then it’s important to actually pay attention to the expertise.”
Saewyc’s survey found more than one-third of respondents had attempted suicide in the past year and nearly two-thirds reported self-harm.
Experts acknowledge there is a dearth of rigorous, long-range studies of children and adolescents who have undergone hormone therapy.
However, an analysis by Cornell University of 56 peer-reviewed articles from 1991 to 2017 of gender transition in the general population found a “robust international consensus … that gender transition, including medical treatments such as hormone therapy and surgeries, improves the overall well-being of transgender individuals.”
“The literature also indicates that greater availability of medical and social support for gender transition contributes to better quality of life for those who identify as transgender.”
Max’s father, Clark, says he can’t get over the question: “What if?”
A different question nags at Sarah: “I don’t want it on my conscience knowing that if this is all it took to alleviate that dysphoria from my child then why didn’t we follow through with it?”
For Max, the biggest challenge facing him now: “Waiting.”