7th February 2017

“I find this a very troubling case. These children are caught up between two apparently incompatible ways of living, led by tiny minorities within society at large. Both minorities enjoy the protection of the law: on the one hand the right of religious freedom, and on the other the right to equal treatment. It is painful to find these vulnerable groups in conflict.” (para 162)

These are words of Mr Justice Peter Jackson in the judgment of J v B (Ultra-Orthodox Judaism: Transgender) [2017] EWFC 4. As a simple overview, this case concerned a male to female transgender father who was seeking direct contact with her 5 children who were members of an Ultra-Orthodox Jewish community. The application was refused and only indirect contact allowed.

The judgment illustrates more understanding of what gender dysphoria and what being transgender is and means and it is relieving to finally see them starting to be acknowledged properly in our case law:

“People who experience gender dysphoria are in no way mentally ill, but they often suffer great stress from hiding their identity.” (para 14)

The law, however, recognises the reality that one’s true sexuality and gender are no more matters of choice than the colour of one’s eyes or skin.” (para 179)

However, the judgment stopped short of giving this transgender parent any direct access to the children on the basis that the children would be ostracised and rejected by their Ultra-Orthodox Jewish community, and further described by Rabbi Oppenheimer that the effect would be “so much more” than this (Para 96). There are obvious, and understandable concerns in relation to how the children would be treated by the other families in the community should the children have direct contact with their father and these are clearly described in the judgment and absolutely needed to be properly considered.

We hear that the mother said that “there was no way that direct contact will work out for the children, for their identity, for their culture and for their whole environment.” Now, the Judge rightly pointed out that the law provides legal protection against victimization but still concluded that, “The impact on the family in such circumstances in terms of social isolation will be devastating.” (Para 95) We heard the evidence of Rabbi Oppenheimer explain that, “There is therefore an obligation to protect the children from finding things out that are likely to damage them and cause them pain and suffering, likely to damage their growth and spiritual well-being.” (para 97)

Even reading all the concerns in relation to how the children would be treated should the father be granted direct contact however one must still question if it was a decision that fits comfortably. Here it could be argued that intolerance won and this decision arguably continues to allow children to be exposed to intolerance and suppression, that could lead them to further suppression and personal conflict later down the line. What if one of the children are gay? Transgender? Non-binary? Was this decision an easier short-term answer rather than a long-term answer?

Indeed, our rights as individuals often have to be weighed against one another in cases and when any judge has to add weights to each side of the scale and decide which drops, it is, no doubt, ever easy. However, drop it must and where it does is always a powerful declaration. We have such a complex and wonderful variety of communities within this country, but we must never be afraid to notice when there are practices and conventions within those communities that do not allow for the basic principle of upholding human dignity. And when you compare it to the position of domestic violence which, in this country is never tolerated in law (whatever the cultural context), it begs the question, why should discrimination and prejudice be allowed to be continued in this case? We do not allow, by law prejudice and discrimination to be perpetrated against the transgender community in the street, so why in a private home or community?

These children are now being raised having been told by the court that having contact with a transgender parent is not in their best interest. Indeed, the judgment qualifies the decision and seems to make the decision with regret, but the majority of society won’t read the full judgment and the children may not for several years. And until they are of an age they can make their ‘own decision’, (which is suggested as being 18), they continue to be taught that to be “gay or transgender is to be a sinner” (Para 97). And I fear, whatever the outcome when they reach the age of autonomy, it may be too late: either the children will feel an abhorrence to transgenderism, decide to not see their father and continue to live with the prejudices they were taught in relation to a community that have a right to be treated equally, or they will decide they do want to see their father and have missed out on having a direct relationship with them for years – either way – have they not been let down?

It is worrying to still see that the educating of children in respect of transgender issues and allowing them to be exposed to transgender lives can still be deemed harmful.

As Mr Justice Jackson rightly said:

the truth is that for the children to see their father would be too much for the adults.” (Para 181)

You can read the full judgment here.

Blog by Lui Asquith, specialist LGBTQ Family Solicitor