On 30 January, a transgender woman was denied direct access to her five children who she had fathered while living as a man. The judge made his ruling on the basis that the children would be shunned by their ultra-Orthodox Jewish community were they allowed to meet with their father. Justice Peter Jackson concluded ‘with real regret’ that there was a significant risk the children would be ‘marginalised or excluded’. As a result, the father will only be allowed to send letters to the children.
The father left the family home in 2015 to live as a woman. Then, in January 2016, she made an application for direct contact with the children. Her case was that the opposition of the community should be ‘confronted and faced down’ through the courts – and that the threat of the children being marginalised should not trump her right to see her children. The mother’s answer was that it was unfair to expect the children to bear the impact of their father’s decision to become a woman.
There was some truly awful evidence heard in the case. Witnesses were called from the community to say how the children were likely to be excluded were they to remain in contact with their father. One of the children even met with the judge prior to the hearing. In the course of their meeting, which formed part of the judge’s decision, the child indicated that if he saw his father he would be bullied and lose his friends. Tragically, he went on to say that ‘if he cares, he will leave me alone’.
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.