At the end of last month a transgender female, who fathered 5 children, has been stopped from seeing them on the orders of a UK family court judge.
The birth mother lives in an ultra-Orthodox Jewish (Charedis) community in Manchester where they are isolated from everyday British life and reject
secular society. The birth father was also a member of this community but he opted to leave in 2015 and started living as a woman. This is a fairly
complex case. Cases brought to the family courts in the UK are often held in private. In this case the judgement was approved for publication.
The children are a boy aged 12 (A), twin boy and girl aged 8 (B and C), a boy aged 5 (D) and a girl aged 2 (E).
The birth mother's argument is that the children would be ostracised by their ultra-orthodox community and unable to live normal lives due to their
association with a transgender parent. It is interesting to note that Orthodox Jewish rabbis, acting for the birth father, argued that Judaism did not
believe transgender individuals should be punished in this way.
The birth father's argument is that the community's opposition should be confronted and challenged legally. The birth father believes the threat of
the children being marginalised should not trump her right to see her children. The birth mother responded stating that it was unfair to expect the
children to bear the impact of their father’s decision to become a woman.
The birth father is allowed to send letters four times a year, with the suggestion that these could be sent to mark three Jewish religious holidays
– Pesach, Sukkot and Hanukkah as well as the the children’s birthdays.
The Children’s Act (1989) states that the welfare of a child is the court’s ‘paramount consideration’. This is now the governing force behind
all family law cases. The judge, in this case, also had to consider provisions of the Equality Act, which say that no one can be unfairly
discriminated against because of their gender, and the child’s right to ‘preserve his or her identity’, under Article 8 of the United Nations
Convention on the Rights of the Child.
Reading through the actual court judgement, which I have linked below, the judge respected and was acutely aware of both the right for religious
expression and the rights of transgender individuals. The ruling was based solely on a probability that the children, along with their birth mother,
would be rejected by their community if the children were to have face-to-face contact with the father.
A few snippets:
The evidence from the birth father (Transgender female) starts at paragraph 58 on page 13. The birth mother's evidence starts at paragraph 69 on
page 15. There also appears to be an accusation from the birth mother that the birth father inappropriately touched the 4 year old (presumably the
now 8 year old). This was investigated and the judge dismissed it due to lack of evidence (paragraphs 28-32 on page 6).
I am struggling with this ruling although I understand how and why he came to his conclusions. The children's welfare was paramount in his
decision-making but at the same time the birth father has lost all access to his children solely for becoming a transgender female.
Several issues spring to mind:
Should religious groups who agree to be governed and live a certain way be criticised for not living alongside and integrating with secular
Would the people who support this ruling still agree if the group was Muslim living under Sharia law in the UK?
Was the judge acting in the best interests of the children by allowing them to continue living in an ultra-Orthodox group and be isolated from every
day British life?
I quite like this from Luke Gittos, Law Editor at Spiked:
What the evidence in the case really showed was that surrounding these children were a group of adults who were unable to reconcile their apparent
differences without recourse to the law. The father was wrong to argue that her choice to become a woman should be, in effect, validated by the court,
notwithstanding the potential impact on the children. On the other hand, she was also right to say that she should not be denied access to her
children because of her life choices.
Transgender woman stopped from
seeing children because it is 'incompatible' with their Jewish faith
Family Court Judgement
The tragedy of the transgender
This case showed that the law can never tell us what is right or wrong. It can only decide which side the law should favour in any given scenario.
This is one case in which a whole series of rights came into conflict. In these cases, involving complex human relationships, a judge can merely fall
down on one side. The sad fact of this case is that the result does not reflect what is right or wrong, only what the law favours at this particular
edit on 16-2-2017 by Morrad because: (no reason given)