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 contact…This 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.