The tragedy of the transgender ultra-Orthodox case
In family conflicts, the law cannot rule on who’s right.
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.
It was sad that the law had to step in. The judge concluded that there was a real risk, amounting to a probability, that the children and their mother would be rejected by their community if the children were to have face-to-face contact with the father. But this left unresolved the fundamental moral question of whether it was right to deny this person the right to see their children because they had come out as transgender.
This case highlights how the law has become a mess of competing and sometimes contradictory rights. In 1989, the Children’s Act stated that the welfare of a child was the court’s ‘paramount consideration’. This is now the governing force behind all family law cases. But the judge also considered 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.
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 moment.
Luke Gittos is law editor at spiked and author of Why Rape Culture is a Dangerous Myth: From Steubenville to Ched Evans. (Buy this book from Amazon(UK).)
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