Medicine Hat judges ordered 4-year-old not to wear girls' clothes in public

Update added Oct. 31, 2016:Afterthe CBC first published this story, legal experts clarified that judges are not subject to human rights legislation and suggested the appropriate procedure for the mother if she wanted to raise concernsabout a court orderwould be to file a complaint through the Office of the Chief Judge.

Susan Smith says she remembers walking out of the court room in Medicine Hat, Alta.,last December in shock after a judge ordered that her four-year-old child would not be allowed to wear feminine clothing in public.

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It happened in family courtduring a custody battle. Smith was the primary caregiver. CBC News is not using her real name to protect the identity of the child.

"My first reaction to that was kind of like an out-of-body experience, like this isn't my life, this isn't happening, and then complete fear of how am I going to break it to my kid," says Smith.

Smith's family's story begins a few years ago when the young child, who wasborn male,first started telling Smith shewas a girl. Her child is now five years old.

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

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"And when they're really that young it's really cute ...and I just left it like that."

But over time Smith says herchild became more insistent, introducing herselfas a girl to others.When Smith wouldsay things like"you're such a good boy," the child would act out in frustration andanger.

'My child was severely unhappy'

Then one day, at the age of four,Smith says her childasked her how old she was when her penis fell off.

"I explained to them the female and male anatomy and that what you get when you're born is what remains your entire life," says Smith.

A few days later, she saysher child woke up in the middle of the night to tell Smithshe was going to cut off her penis.

"My child was severely unhappy and was prepared to do anything to prove to mom that they were not a boy. It was basically like a ton of bricks, I got hit. It was a major wakeup call."

Smith says she thensought some professional help,started researching gender dysphoriaand decided to acknowledge her child's preferred identity.

"Our eyes locked and it was maybe the millionth time they told me they were a girl ... and I promised I was going to do whatever I could to validate and support them and to be that one person they could go to."

She says as soon as she did, the outbursts and the tantrums were replaced with a happy, confident child.

3rd judge ruled child can choose boy or girl clothing

Smith and the child's father are separated and share custody.

Smith says she told the father what had happened and abouther decision to support their child. Weeks later he served her with papers seeking primary custody, blaming Smith for the child's gender confusion and anxiety.

When the two went to family court in Medicine Hat inDecember,2015, Judge DerekRedmankept Smith as primary caregiver, but in his interim order, said the child wouldnot be permitted to wear clearly female clothes in public, but if desired, coulddo so in private.

Then inFebruary, the case went beforeJudge FredFisher. In his interim order, he again stated the clothing restriction and granted primary custody to the father. Smith was given limited access.

By this past September, the interim clothing order was revised by a third provincial court judge. Judge Gordon Krinke said, after consulting with a parenting expert, the parents must provide both boy and girl clothing options and the child can then choose from those options.

Court order went against Bill of Rights, advocate says

Angela Reid,with the Trans Equality Society of Alberta,says this unusual court order dictatingthe type of clothing a child wearsgoes against Alberta's Bill of Rights.

She says gender identity and gender expression are both protected, and the legislation does not require a diagnosis of gender dysphoria or any other medical condition; these rightsapply to everyone.

"If it's actually a boy who thinks he's a boy but he wants to wear dresses anyway, that is totally OK,and that should not be prevented by the court," says Reid.

The fact that we're seeing multiple cases where someone's gender expression is being dictated by the court tells us that perhaps a more visible ruling that it's not OK in our court system would be useful.- Angela Reid, Trans Equality Society of Alberta

Reid says this is the third case she's seen like this. However it's the only one involving a child in a custody case. In the other situations, she saysit's the parents who aren't being allowed to dress in the clothing of their choice when visiting their children.

"The fact that we're seeing multiple cases where someone's gender expression is being dictated by the court tells us that perhaps a more visible ruling that, that it's not OKin our court system, would be very useful," says Reid.

Smith says she doesn't know if her child is just curious, or is transgender, but she says it doesn't matter to her. She says what does matter is that the courtsrespect the right of gender expression.

She plans to launch a human rights complaint against the two judges, and continue to fight to regain primary custody.

"I'm not going to hide under a rock and just give up this is still a big fight."

CBC News reached out to the father's lawyer, but he hasdeclined to comment.

Alberta Justice Minister Kathleen Ganleysaid while she cannot comment on specific cases, the government is supportive of gender minorities.

"Last fall, we amended the Alberta Human Rights Act, adding gender identity and gender expression as prohibited grounds of discrimination," she said in a statement.

"This is now law, and we expect all Albertans to follow the law."

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