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Let child discover his own gender, Ontario judge tells parents in custody order

06/12/2015 04:57 EDT | Updated 06/12/2016 05:59 EDT
A Halton judge has ruled that parents need to let their child discover his own gender in a custody case that involved threatening emails and burning girls' clothes.

Justice Sheilagh O'Connell has ruled that a mom and dad will share custody of a four-year-old biological boy who said at various times that he wanted to be a girl but said neither can force their preference on the child.

The mom dressed the boy in girls' clothes and used female pronouns with him. The father, meanwhile, burned the female clothes and said the mother was inflicting her will on the boy — specifically, that she'd always wanted a girl.

O'Connell ruled that the child — referred to as S. — should be able to discover his own gender.

"Each parent needs to permit S. a variety of ways of expressing himself and S. should be supported but not encouraged towards any gender preference," she wrote in her June 1 decision.

"If the mother is forcing S. to be a stereotypical girl against his wishes, then this no doubt will cause him emotional harm. If the father is forcing S. to be a stereotypical boy against his wishes, then this no doubt will cause him emotional harm."

The case involves a Burlington, Ont., father and an Oakville, Ont., mother. The pair, who have two children – four-year-old S. and a three-year-old – divorced in February 2013 after a six-year marriage.

Burned female clothing in the backyard

It was a bitter split, and the pair battled over long-standing custody issues. Both of them had access in 2014 when the father discovered that S., while at his mother's house, was wearing female clothes and being referred to as "she."

The mother contended that S. wants to be female and refers to himself as a girl. The father argued that the mother was inflicting her wishes on S., and that she once said S. "would have made such a pretty girl."

At one point, the court decision reads, the father burned S.'s female clothes in a backyard bonfire. The mother says that S. was forced to do so. The father says it was S.'s idea.

Eventually, with urging from the Halton Children's Aid Society, the pair sought the help of Dr. Herbert Joseph Bonifacio, who heads up the Transgender Youth Clinic at Toronto's Hospital for Sick Children.

Bonifacio said S. was interested in stereotypical boys' and girls' clothes and activities, and that gender expression shouldn't be confused with gender identity. Bonifacio recommended that the parents not associate clothes and toys with a specific gender, but provide a variety of clothes and toys and let S. pick. He recommended that the parents still refer to S. as a boy.

Gave the child 'girl stickers'

The father sent threatening emails to Bonifacio, telling the doctor that "unless I'm in jail, you are my new special project." He also said the doctor had given S. "girl stickers."

"Keep hunting the men that fight for their kids and keep transing (sic) children that hate this," he wrote. "That's the kind of person you are."

The father later apologized, telling Bonifacio that his anger was the result of his own gender identity struggle.

Meanwhile, a Halton CAS worker visited the mother's house and found two piles of clothes, labelled "keep" and "give away." The "keep" pile was all female clothes and the "give away" pile was all male, signifying that the mother wasn't complying with Bonifacio's order. The CAS took over custody of the children. A CAS worker also visited S. at school, when he expressed conflicting desires about his gender.

O'Connell's lengthy order said that S. will divide his time between parents. She also ordered that the parents abide by Bonifacio's recommendations.

"Neither parent shall unilaterally dress S. as a girl or force S. to take on certain gender roles against his wishes," she wrote.

"In the event that S. expresses a desire to dress as a girl, then the parent in whose care S. is shall respect S.'s desire but shall contact the other parent and the society immediately to notify them of S.'s wishes and the parties shall agree as to how to proceed."

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