Southern Alberta child who chose to dress as girl needs transgender expert, mother pleads

A mother in southern Alberta who is fighting her ex-partner for custody of their young child — who was born male but has expressed a desire to dress as a girl — says the child needs to be assessed by an expert in gender identity.

• Medicine Hat judges ordered 4-year-old not to wear girls clothes in public
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But so far, the five-year-old child's father, the child's court-appointed lawyer and the judges have all refused to let that happen.

Susan Smith — CBC News is not using her real name to protect the identity of the child — says her child first started identifying as a girl before the age of three.

Smith refers to her child as "they" rather than the gender-specific pronouns of "him" or "her."

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Smith says the child used to throw tantrums when called a boy, and eventually threatened to cut off their penis.

After a stay in the children's hospital, and on the recommendation of caregivers there, the child chose a girl's name and started dressing in feminine clothes. 

"I had a new happy kid. It was just amazing," Smith said.

Father won't permit girl's clothing

She says that's when she chose to accept the child — whatever their gender. 

She's separated from the child's father, who refused to accept that the child be permitted to wear girls clothing, leading to a bitter custody battle.

The father, whose lawyer declined to comment, told the court he believes the mother is coaching the child and seeking attention for herself. 

Smith's lawyer, Helen Banks, says her client is now being unfairly blamed for her child's gender issues.

"Well, dad's perspective, through his counsel, and of course the child's counsel perspective, is that there's nothing wrong with this child, the child doesn't need to be assessed, because this is all about mom and the focus has continued to be about my client," said Banks.

'What is the harm?'

"I'm particularly troubled by the refusal to allow this child to be assessed by an expert in the field, because in the event that it turns out that it is actually mom coaching, what is the harm in having this child assessed to find that out? I personally don't believe that, I believe that the child genuinely is transgender, and I believe that she felt comfortable and confident enough to reveal that to mom because of the closeness of their relationship."

Child psychiatrist Dr. Lorne Warneke, who has a special interest in gender issues, says there would be no harm in examining the child.  

"I would think that everyone would want the child to be seen by a psychiatrist. Hopefully both parents, on opposite sides of the fence, are wanting what's best for the child," he said.

"The child's too young to appreciate perhaps the existing stigma about going to see a psychiatrist in society."

No 'clearly feminine' clothes allowed

 At the initial court appearance, a judge ordered the child, who was four years old at the time, not be permitted to wear "clearly female" clothes in public.

Smith says she complied, ditching frilly dresses, but still allowing purple and pink clothes.

At the next court appearance, Smith lost primary custody, and a second judge reiterated that the child cannot wear female clothing in public.

"In the event that this child is genuinely transgender and it is being subjected to emotional injury by not being permitted to be her authentic self, that's child abuse," Banks said.

A third judge has since ordered the child be given a choice of clothes every day, and granted the mother unsupervised visits with her child every second weekend and some mornings.

John-Paul Boyd, a lawyer with the Canadian Research Institute for Law and the Family, says family court judges routinely issue orders about everything from diet to religion to language.  

"The court makes decisions all the time about parenting disputes that have the effect of curtailing someone's rights," he said.

Boyd said the child's mother is left with two options — wait for a resolution in provincial court, or launch an appeal to the Court of Queen's Bench.

However, Smith's lawyer says the latter option isn't feasible.

"My client doesn't have the ability to appeal everything she doesn't like," Banks wrote in an email to the CBC.

"That is a costly and lengthy endeavour and she only had 30 days to appeal. In addition, the judge needs to have made an error in fact or law in order to appeal, and using his discretion is not an error. At the time, we had no idea whether the child was transgender or not: the allegation was still that it was all mom's fault."