Canadian family courts will be able to make better informed decisions when it comes to cases involving children facing gender-identity questions, all thanks to a new Western-led project.
“With more children and young people identifying as transgender or expressing gender non-conforming behaviour, family courts are now being asked to resolve family conflicts stemming from this gender non-conforming variance,” Western Law professor Claire Houston explained. “However, because these cases are new, family court judges have limited guidance for resolving these disputes.”
Toward erasing that gap, Houston recently received $6,800 from a Social Sciences and Humanities Research Council (SSHRC) Explore Grant to support her project, Respecting and Protecting Trans and Gender Non-conforming Children.
The research will focus on how Canadian family court judges decide cases involving conflicts over a child’s trans identity or gender non-conforming behaviour, and what factors should guide family court judges deciding these cases. Drawing from children’s rights and anti-discrimination theoretical frameworks, her project will provide legal decision-makers with a principled approach for deciding these cases.
Houston says conflicts can evolve centering on whether and how a child should be able to transition to a gender different from the one they were assigned at birth.
“These conflicts typically pit one parent against the other or, sometimes, both parents against the child,” she said.
Houston notes family law cases involving children are generally decided according to the “best interests of the child” standard, but determining what is in the best interests of a particular trans or gender non-conforming child may be challenging.
“The views and preferences of children who wish to socially or physically transition (using medical procedures) deserve respect,” she said. “On the other hand, parents have legal rights over children, and parents and the state are legally obligated to protect children from harm.”
Law Dean Erika Chamberlain praised Houston for undertaking this timely, important research. “This is uncharted territory for Canada’s family courts, and Professor Houston’s work will provide valuable guidance on these issues.”