Trans v Ultra-Orthodox

A judge has ordered that a trans woman should never see her children, because their Orthodox Jewish “community” would ostracise them.

The fact that made the judge refuse contact for the trans father with her children may be that J, the father, still wants her children to be brought up as ultra-orthodox. The judge recognises all the reasons why it would be good for the children to see their father, and the list is heartbreaking. They have an irreplaceable relationship, a right to family life, they want it and not having it will be deeply distressing causing a deep sense of loss; the children will resent the injustice that their community deprived them of contact, and that deprivation is discrimination on the grounds of gender reassignment; the children’s sense of identity and self worth will be affected if their father is treated as a sinner, unworthy to see them; they won’t know if J is well or ill; they will not get to know or understand J, as the “community” will denigrate her; depriving her of contact is similar to adoption, cutting her out of their lives; if they have contact now, they might get some experience of the outside world, some chance at being able to make their own choices; they may never be able to choose to see their father, even as adults; contact now means that professional help is available; the court has ordered that the father send four letters a year, but the community may prevent even that. It is an appalling list.

Against the father having contact, the court counts the extreme pressure she has been under, which may make her upset in front of the children. That is Kafkaesque. If they saw her upset, they might see how transition helped her, and how she overcame her difficulties. However the judge says that indicates caution but would not by itself prevent contact.

The father’s lawyers argued that the schools should obey the law. If they did so, teaching tolerance and respect, attitudes might change. The judge disapproves of the schools, and will send the judgment to the Department for Education. I hope some attempt may be made to enforce the law on them.

The judge had hoped that a “warm, supportive” community would support children’s need to see their father. When he pointed out that the evidence had dire warnings of ostracism but no examples, the mother’s lawyers produced statements showing that child victims of sexual abuse had been ostracised. He told them he did not think they could be that monstrous, and they desperately scrambled to prove that yes, they were.

Even though he heard evidence that Jewish law could tolerate trans people, he accepted that this particular community could not. The community is proved to disregard justice, and the welfare of the children. The community all say they will continue their discrimination and victimisation. The father accepts the community is like that, but hope it can be made to change, but even educated people are unyielding and there is no evidence anyone in authority in the community wishes it to change.

The judge recognises that sexuality and gender are not a matter of choice. Trans folk have a right to be recognised and respected as such. “Sin” is irrelevant to law. The children could adapt to their father’s change, but the adults involved could not. The children would be taught in the community that their father was a sinner, and in the outside world that she was an acceptable person. They could never speak of their father to their friends. It would put too much pressure on them. It is too wide a gulf for them to bridge. They would have no support: everyone would take the community line. They might be ejected.

The judge says, I have reached the unwelcome conclusion that the likelihood of the children and their mother being marginalised or excluded by the ultra‐Orthodox community is so real, and the consequences so great, that this one factor, despite its many disadvantages, must prevail over the many advantages of contactThis outcome is not a failure to uphold transgender rights, still less a “win” for the community, but the upholding of the rights of the children to have the least harmful outcome in a situation not of their making.

4 thoughts on “Trans v Ultra-Orthodox

  1. Was the option of J being the caregiver of the children considered? That the community could ostracise the mother and children for maintaining contact with J is clearly abuse, would not less harm to the children have been caused by removing them from the community?

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    • She was not ready for it, and did not want to deprive a pre-school child of her mother. The community may not ostracise the mother, even though she is a single parent, even though the children’s friends would be exposed to the understanding that sometimes adults are wicked enough to divorce. Though I understand it is not Jewish law when the parents have a Get that the mother should keep the children.

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      • If J wasn’t ready for it then perhaps that might be a reason for the time being, but personally, I think it would be better for the child to be exposed to the wider world. Without knowing all the facts, it seems to me that the court has given in to the bigotry of the Jewish community. If the child is allowed to see the father, the mother’s community will abuse the child, so we’ll consent to the demmands of the potential abusers so she won’t be abused. Essentially, that’s blackmail and shouldn’t be tolerated.

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        • The test is the welfare of the children. Here is part of the judge’s reasoning:

          I can see no way in which the children could escape the adult reaction to them enjoying anything like an ordinary relationship with their father. In the final analysis, the gulf between these parents – the mother within the ultra‐Orthodox community and the father as a transgender person – is too wide for the children to bridge. They would be taught one thing in their daily lives and asked to do the opposite on repeated, conspicuous forays into the outside world, which they would have to keep quiet about afterwards. The mother, a religiously observant person, would be required to sustain something that she has been taught is religiously wrong. A, aged only 12, is already extremely anxious about contact and now feels protective towards his mother and younger siblings. Embarking on contact would place him under extreme pressure, which would inevitably have a detrimental effect on his development.

          The children, and the mother on whom they depend, would have no effective support to deal with any of this: on the contrary, they would face suspicion or outright opposition from every quarter. The likely result is that their individual and collective well‐being would be undermined to the point where their ability to remain in the community would be put at risk, or at the very least placed under permanent and severe strain, with (as Ms Henry and Dr Morris put it) “a negative impact on how they function in the widest possible sense both now and in the future”.

          It is central to my thinking that this is not a case about whether children should or should not be brought up according to ultra‐Orthodox principles. This was the issue in Re G, and it was that which led Munby LJ at paragraph 82 to describe the task of the judge as being to recognise equality, foster aspiration and maximise the children’s opportunities in every sphere of life as they enter adulthood, taking care not to foreclose on their ability to make future choices for themselves.

          This case is quite different. These parents decided to bring up their children according to the narrow ways of the community, and they continue to agree about this. That being the case, the priority must be to sustain the children in the chosen way of life, preserving their existing family and social networks and their education. It is not to be forgotten that children have the right to preserve their identity (UNCRC Art.8), something that is a matter of particular pride to these children. Contact carries the clear risk that the children and their mother will become the next casualties in a collision between two unconnecting worlds. The father has already experienced the consequences of that collision, and no one knows better than she does how very painful they can be.

          Possibly all the children should simply be taken into care, to rescue them from the narrow, deluded ways of their parents. Possibly Jehovah’s Witness children should be too. And, possibly, the community will collapse under its own pressures.

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