In 2023, Canada saw a number of anti-trans laws and policies adopted or proposed. Two provinces—Saskatchewan and New Brunswick—gave parents a veto over their child’s choice of name and pronouns in schools under the age of 16. Alberta is planning to adopt a similar law and supplement it with a ban on gender-affirming care for youth under the age of 16, among other things.
In discussions on these laws and policies, you may have heard someone say that they violate the rights of “mature minors.” The rights of mature minors were notably mentioned by Alberta law professors—including myself—in an open letter back in February. In the open letter, we claim that Alberta’s announced ban on gender-affirming care for minors would violate the rights of mature minors to make medical decisions.
You might be asking yourself: what are mature minors, and how does being a mature minor impact the rights that youth have?
The quick-and-short version is that Canadian law lets minors make decisions for themselves—regardless of their parents’ opinions—if they have enough intelligence, understanding and maturity to make free and informed decisions. Youth who satisfy these criteria are called mature minors.
The rights of mature minors primarily come up in the context of medical decisions, but they are also relevant to other issues—in theory, it applies to any personal decision in the child’s life, including one’s choice of name, pronouns, clothing, etc.
The emergence of mature minor doctrine and adoption into Canadian law
The concept of “mature minor” was adopted into Canadian law following a 1985 decision of the British House of Lords called Gillick. In Gillick, a conservative activist sued the local government for prescribing contraception to some youth under 16 without parental consent, as a matter of policy. The case went all the way to the highest court in England and Wales, which affirmed that doctors didn’t need parental consent to prescribe contraception to minors who are sufficiently intelligent and mature.
According to the judges, saying that people remain under the complete control of their parents until 18 years old is “contrary to the ordinary experience of mankind,” and “most wise parents relax their control gradually as the child develops.” Accordingly, they held that minors could consent to medical treatment on their own, without parental consent, once they “achieve[d] sufficient understanding and intelligence to understand fully what is proposed.”
This was a watershed moment for English law, but its influence didn’t stop there. Soon after, Canadian courts began to cite the case and adopt its reasoning. It wasn’t until 2009, however, that it was fully enshrined in Canadian law.
That year, the Supreme Court of Canada released its decision in a case called AC v. Manitoba. In that case, the government sought to force a 14-year-old to undergo blood transfusions even though she vehemently objected to blood transfusions for religious reasons. The law allowed medical care to be imposed if it was in the minor’s best interests.
The Supreme Court answered that requiring parental consent for the medical decisions of a mature minor would violate their right to life, liberty and security of the person under section 7 of the Canadian Charter of Rights and Freedoms.
Although the law didn’t explicitly talk about the mature minor doctrine developed in Gillick, the Supreme Court said that it was implicitly incorporated into the concept of the best interests of the minor. The more mature a person is, the more their decisions are inherently in their best interests. Once mature enough, there is no difference between a youth’s perspective and best interests.
According to the judges: “If, after a careful and sophisticated analysis of the young person’s ability to exercise mature, independent judgment, the court is persuaded that the necessary level of maturity exists, it seems to me necessarily to follow that the adolescent’s views ought to be respected.”
Holding otherwise would violate youths’ constitutional right to liberty as well as Canada’s obligations under the Convention on the Rights of the Child, which says that the older and more mature a minor is, the more weight their opinion should have.
This means that, for most purposes, mature minors must be treated the same as adults. The 14-year-old had won the right to try and demonstrate her own maturity and, in doing so, potentially refuse blood transfusions.
How to know if someone is a mature minor
In AC v. Manitoba, the Supreme Court ultimately declined to decide whether the 14-year-old could refuse blood transfusions. They kicked the can down the road, telling lower courts to figure out whether she was mature enough using the new legal framework they just developed.
Telling if someone is a mature minor is a matter of determining whether they have sufficient intelligence, understanding and maturity to provide genuinely informed consent—what courts sometimes call “true, stable and independent choices.”
The Supreme Court gave a list of questions to help us ascertain maturity in the context of medical decisions: Can the minor understand what the treatment does and why it’s being offered? Can they appreciate the risks and benefits of making different choices? Is the minor’s opinion based on their own core values and beliefs? Are they being influenced by others? Do they have emotional vulnerabilities or psychiatric conditions that may impact their ability to make a mature and independent decision? Does the condition being treated negatively impact their ability to make a decision?
Importantly, the assessment has to be based on that specific minor, that specific decision, and at that specific point in time. An adolescent may be sufficiently mature for a specific decision in one context yet be considered immature regarding another decision or in another context.
Typically, greater understanding and sophistication is required for decisions involving more severe or far-away consequences—such as consequences that wouldn’t be felt for years or decades. For example, courts and doctors more readily let minors consent to an HPV vaccine than to making an emergency life-or-death medical decision.
In the context of trans youth, this means that choosing your name and pronouns doesn’t require as much understanding as deciding to take hormone therapy, since it changes your body. This doesn’t mean that minors can’t consent to hormone therapy—they often can. It just means that they need more sophisticated thinking than for names and pronouns.
While the matter is solely one of maturity in theory, the law indirectly allows agreement and disagreement with the minor’s decision to influence whether they are considered mature.
The Supreme Court is of the view that minors don’t need as much understanding to consent to treatment than to refuse, since consent aligns with the advice of doctors with “years of study and experience” whereas refusal ignores that advice.
Maturity will be more carefully evaluated for serious decisions than smaller ones. This makes it easier for adults to impose their views on minors for more significant choices.
Assessments of maturity in practice
Assessments of maturity are typically done by doctors who have little legal knowledge and may not even have heard of AC v. Manitoba. Instead, they tend to rely on approaches taught in medical school and standardized questionnaires.
Doctors traditionally divide maturity assessments into four components: communication, understanding, appreciation and reasoning. First, doctors ask the minor to indicate their choice to ascertain whether they can communicate their decisions. Second, they will ask the minor to explain back information about the medical condition and treatment. Third, they will ask the minor to describe their views regarding the medical condition, proposed treatment and likely outcomes. And fourth, they will ask the minor to compare treatment options and consequences, and offer reasons for their decision.
Oftentimes, the answer will be straightforward. The minor will either be evidently mature or immature. There is, however, room for much grey area that neither law nor medicine has managed to clarify.
Figuring out the precise line between mature and immature is more of an art than a science. It is a fuzzy line—and, arguably, a somewhat arbitrary one. However, some studies suggest that youth are normally able to consent to medical research by 10.4 years old, which is younger than many people assume. We also know from research that trans youth seeking hormone therapy usually have the level of maturity and understanding expected of mature minors.
Who decides?
When courts apply the mature minor doctrine, they typically do so by looking at the assessment conducted by a medical doctor. Most often, the person is either the child’s doctor or a child psychiatrist who became involved at the request of the child’s doctor.
However, going to court is rarely necessary. Courts have explained that doctors are usually allowed to act on the consent of minors they consider mature. In some provinces, this situation is made explicit in the law. In other provinces, it is considered implicit.
More generally, applying mature minor doctrine is done by whoever is responsible for making decisions in the best interests of the child. This includes teachers, since they are temporarily granted decisional authority by parents and under education law.
Because the law says that parents must exercise their parental authority “in a manner that is consistent with the best interests of the child,” they are supposed to respect the decisions of their mature children. This notably means that they—and teachers—are supposed to respect trans youths’ names and pronouns if they are mature minors, regardless of what they think about it. If they don’t, children and trusted adults can go to court to contest the parent’s decision. Unfortunately, they rarely do so due to how expensive and burdensome the legal process can be.
While mature minors have a clear constitutional right to make decisions for themselves, it is far from clear how burdensome the maturity assessment process must be before this right is violated. Could governments pass a law saying that no minor will be considered mature unless they go to court and are supported by three psychiatrists? Probably not, but nobody knows for sure.
Confidentiality
Another point of uncertainty is whether mature minors can demand confidentiality with regard to their parents. Can mature minors ask doctors and teachers to keep information from their parents?
In Canada, medical practice typically assumes that mature minors have a right to confidentiality and some provinces have adopted laws that say so. According to the healthcare tribunal of British Columbia, a mature minor “has the same right to privacy as an adult patient.” This assumption is very important for minors seeking birth control and abortion, who often don’t want their parents to know. However, the question has not been comprehensively explored by courts.
There are good reasons to believe that the Supreme Court would indeed recognize mature minors’ right to confidentiality. If it is in minors’ best interests to respect their decisions, as AC v. Manitoba teaches us, shouldn’t that also be the case for the decision to keep certain matters private?
This is how English courts have resolved the question. In the 2006 case called Axon, the mother of two teenage daughters sued the government for telling doctors that minors have confidentiality rights regarding contraception, abortion and sexual health. The High Court said that the government guidance was right: mature minors have a right to medical privacy and parents do not have a right to know whether their child has accessed reproductive healthcare. Hopefully Canadian courts would say the same.
It is also uncertain whether the same test will apply to the right to make decisions and the right to confidentiality. Since parents often help minors make better decisions, courts might decide to develop a more stringent test for confidentiality.
Trans mature minors
The mature minor doctrine applies to trans youth. Trans mature minors can make decisions regarding gender-affirming care.
They can also make decisions regarding their gender identity and expression, such as choosing their pronouns, name, clothing, etc. However, these decisions are more difficult to enforce than medical ones since there isn’t a clear, explicit and effective legal structure in place to govern non-medical decisions.
As writer Ned Lecic and retired judge Marvin A. Zuker put it, “children are physically, emotionally and, for the most part, financially dependent on their parents, and there is no public authority that monitors the day-to-day actions of parents. The practical result is that, day to day, parents may effectively enforce any rules they see fit in their own homes.”
If a parent or teacher refuses to respect a trans youth’s pronouns, name or clothing choices, minors can, in principle, ask courts to intervene. But given how expensive and convoluted courts are, this is rarely realistic.
Laws that interfere with trans youth’s decisional autonomy can also be challenged under the Canadian Charter. Recent laws and policies targeting trans youth in education have been promptly challenged in court, and mature minor doctrine is one of the arguments brought up in those lawsuits.
Unfortunately, the mature minor doctrine has the same vulnerability as most rights of the Canadian Charter. Like almost all Charter rights, it can be overridden by governments using the Notwithstanding Clause.
In provinces where the notwithstanding clause isn’t invoked, however, the constitutional rights of trans mature minors remain strong.
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