Judges in Alberta custody case ordered child not to wear girls clothes in public

File: Scales of justice. File Photo

A sexual minorities expert says judges need to be better educated about gender identity after two Alberta family court judges ruled that a child born a boy couldn’t wear girls clothes in public.

The case involves a couple in Medicine Hat fighting over custody of the five-year-old.

The mother supports what she says is the child’s wish to identify and dress as a girl, but the father does not and blames the mother for the child’s gender confusion.

Last year, a judge ruled the child could only wear girls clothes in private. A second judge later upheld the decision.

A third judge recently removed the restriction and said the child can choose what clothes to wear.

“These kinds of decisions shouldn’t be happening, particularly when our human rights legislation has changed,” Kris Wells with the Institute for Sexual Minority Studies and Services at the University of Alberta said Monday.

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Wells has been helping the mother and said she doesn’t want the family identified.

He said the case makes it clear that the “next frontier” of awareness and education for the courts is gender identity, particularly involving young children.

Wells said he hopes Alberta Justice will look at the case and support the judiciary in becoming more knowledgeable and inclusive about gender issues.

Justice Minister Kathleen Ganley said in an emailed statement that while she can’t comment on the specifics of the case, the government added gender identity and expression as prohibited grounds of discrimination to the province’s human rights act last fall.

“This step was a strong signal to let all Albertans know we support them. This is now law, and we expect all Albertans to follow the law,” Ganley said.

Although Wells has never before heard of a case like this in the courts, there have recently been others in Alberta that highlight a lack of judicial awareness.

Three Alberta judges faced scrutiny for remarks they made during sexual assault trials. The most high-profile case centred on federal Judge Robin Camp, who was a provincial court judge in Calgary when he asked a sexual assault complainant why she didn’t keep her knees together. He has since apologized and had counselling and training.

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READ MORE: Alberta judge in ‘knees together’ case should be removed from bench: lawyer

The Canadian Judicial Council is deciding whether he should keep his job.

Angela Reid with the Trans Equality Society of Alberta said her group has been helping the mother in Medicine Hat in the last year and is encouraging her to file a human rights complaint against the first two judges.

“We certainly believe she has grounds,” Reid said. “Even with the order having been corrected, I would agree that there’s been some harm done.”

The father was awarded primary custody by the second judge and that decision remains in place, said Reid. The mother may be able to show bias by the first two judges and get another chance, Reid suggested.

She said the five-year-old is having a gender identity crisis but is too young to diagnosis as transgender.

In the end, it doesn’t matter, Reid said.

Even if a boy just wants to wear girls clothes, he should be allowed to and not punished for it, she said.

“What we are objecting to is an agent of the state – in the form of the judge – having a court order that limits the child’s expression.”


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