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.

Orthodox Judaism and trans

You have heard of trans women not being able to see their children. With the difficulty of transition, some of us cannot take on that additional fight. One I knew killed herself after being told her wife would not let her see her children, and at the funeral was erased: she was referred to only by her former name, as if a man had died. Now the English courts have ruled that a trans woman should not see her children, because they would be ostracised by their Orthodox Jewish community if she did. She can write four letters a year to each child.

To write this post, I have read the detailed statement of evidence and law by the judge, but not his own assessment and conclusion. It is clear to me that any child brought up in such a “community” will suffer significant harm.

People in this community are not responsible for their own lives. “Personal decision making is minimal, with all major concerns being discussed with one’s rabbi” [see paragraph 85 of the judgment]. J, the father who has transitioned, [58] knew at the age of six that she was different. She could not speak to anyone, and prayed to God to make it go away. Children in less controlling circumstances feel the same: I did not speak to anyone until aged 18. After fathering five children and twice attempting suicide by taking pills, she began to speak to a therapist outside the community. Broken Rainbow, the LGBT domestic violence charity, gave her confidence to leave. It has now closed down.

The community sees transition as “a defection from core values, and expressive of hostility and disrespect” [106]. The community cannot accept how badly it hurts its members, so blames those who leave.

The court-appointed Guardian accepted that within the community, the children could not make their own decisions about seeing their father [136]. Exposure to the outside world is seen as dangerous to the children, who are taught to see it as hostile to the Jewish community. The mother does not speak of J at all.

Children exposed to “outside influences” may be ostracised. The judgment gives examples of other divorced couples. One mother could not get her child into the school she wanted. “The school would not risk the influences the father’s contact with the child might have on the rest of the student body.” This, note, is the case of a straight parent. In J’s case, her son A’s head teacher said that if A met J he feared A’s religious commitment could be compromised.

In a case where a child was sexually abused within her family and the wider community from age 11-14, she was fostered through secular social services. She was not allowed to talk to friends, whose parents said they could not risk their children hearing about “things”.

J could not bear the thought that her son, aged 12, would be faced with her unexplained disappearance, so she told him fifteen months before that she could not carry on with the marriage, and that she was leaving five days before she did. This is held against her. The pain she has suffered, in being unable to be herself, attempting to conform, finding conformity impossible even though she knew how much it would cost her to transition, and now in transitioning and suffering all that loss, is used against her to show that she should not have access. Telling her son was seen as very bad indeed. Her own needs overwhelm her [120], she cannot prioritise the emotional needs of the children, which militates against contact.

Their interpretation of the Torah is completely against transition. Deuteronomy 22:5 forbids dressing in the clothes of the opposite sex, and Leviticus 22:24 forbids castration. For all religious purposes J will be considered male, will be required to give a Get, or religious divorce, to her wife [93], and as most social activities as sexually segregated would not be allowed to join either the women or the men.

The community fought viciously against J. Having so let her down, they project all their wrongdoing onto her. They threatened violence [61]. They refused to consult her about anything to do with the children, and would not accept maintenance payments from her. They rebuffed all her attempts at contact [25]. They made allegations that she had sexually abused her son aged 4, though the judge says “There is no credible evidence that J has behaved in a sexual manner towards D or any of the other children” [32].

The schools responded particularly badly. Minutes of a “Team around the children” meeting show their priority was to protect the community and enforce its “cultural norms around gender and sexual identity” [33]. The schools’ duty was to “uphold the religious ethos”. Other parents would “protect” their children from information shared by J’s children.

Fortunately, schools are restricted in England from so betraying their pupils. I am horrified that any still persist, but at least one has been shut down. It is unlawful for a school to discriminate against a pupil because of their association with someone transitioning gender [48]. The education regulations include a curriculum obligation to encourage respect for other people, paying particular regard to the protected characteristics set out in the 2010 Act [50]. The school was forbidden to enroll new pupils because it did not enable pupils to learn of the existence of trans people. It must encourage respect of us, and other groups which suffer discrimination. Why the Department for Education is not shutting down other such schools, I do not know.

The law supports contact for parents. It is to be presumed that contact furthers the child’s welfare [38]. Children are entitled to the “love and society” of both parents. Court of Appeal cases on trans parents say children should have professional help to learn of their father’s transition so they can adjust to the change [41]. However the Guardian noted that required “a solid structure of support” for the children, wider than the nuclear family [129]. And yet J cannot see her children.

The eldest son is angry with his father. He blames J. “If he cares, he will leave me alone” [139]. He said his father had done him damage. The child cannot recognise that the damage comes from the Community failing to accept how human beings are, and imposing such terrible control.

You can download the judgment from this page.