Judge rules man now living as a woman can have only indirect contact with children four times a year because of risk that strictly Orthodox community could ostracise family
January 30, 2017 16:50
A High Court judge has rejected the request of a transgender father who has left the Charedi community and now lives as a woman to have direct contact with his five young children.
Mr Justice Peter Jackson said he had reached “the unwelcome conclusion” there was a real risk of the mother and the children being marginalised or excluded by the strictly Orthodox community if they saw their father face-to-face.
While family court proceedings were held in private last year, Sir Peter published his judgment today on the strict condition the family’s anonymity was preserved.
He ruled the father could have “indirect contact” with the children - such as writing letters - four times a year for their birthdays or Jewish festivals.
The judge found it “a very troubling case. The children are caught between these 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.”
While the father had been raised as male, she had been experienced a “consistent nagging feeling of incongruity” since early childhood, had sought to delay marriage and had tried to kill herself.
She left her family two years ago, lives as a woman and is considering hormone therapy and surgery. She believes herself “the first transgender person to have left a UK Charedi community”.
The father offered to see the children under supervision and “a requirement to assume, so far as possible, her previous male appearance in the early stages,” according to the judge.
“The change from living as the male head of a family with five children living in an intensely structured religious community to living as a single woman could scarcely be more striking,” Sir Peter observed.
According to the judge, the mother had said that her husband had "expressed feelings of being unhappy in his body" during their marriage, but she had "thought it was a religious crisis, not a gender issue”.
If the children had direct contact with their father, the parent body of their schools would not allow other children to play with them, the mother had warned.
On behalf of the mother, Rabbi Andrew Oppenheimer said if the children had contact with the father, “the families around them will effectively ostracise them by not allowing their children to have more than the most limited contact with that family’s children. The impact on the family in such circumstances in terms of social isolation will be devastating.”
In evidence, Rabbi Oppenheimer made clear that in Torah law to be gay or transgender is to be a sinner.
He cited support from Rabbi Shraga Feivel Zimmerman, head of the Gateshead community, and Dayan Yisroel Lichtenstein, head of the Federation Beth Din.
Rabbi Zimmerman stated sex-changes procedures violated Jewish law, while Dayan Lichtenstein said Jewish law did not recognise any change of gender from male to female or vice versa.
But on behalf of the father, Rabbi Ariel Abel, the rabbi of a regional central Orthodox community, said “There is no legitimate reason to maintain that children who are transgender-parented cannot experience in the ultra-Orthodox community a full and satisfying Orthodox Jewish life”.
In a statement to the court, the religious studies head at the school of the father’s eldest child said a meeting with his father “would cause unimaginable and irreparable damage”.
Judy Henry and Emma Morris, therapists from the Anna Freud Centre, said the children’s cultural context should be taken into account. “If the children run the risk of being denied places at good schools and yeshivas and are being shunned and ostracised by their peers and other members of the community, this will have a negative impact on how they function in the widest possible sense both now and in the future,” they wrote.
They recommended the children should receive information in age-appropriate stages to “understand their father’s departure and transgender identity”. But they did not support the father having direct contact.
Sir Peter said his decision was not “a failure to uphold transgender rights…but the upholding of the rights of the children to have the least harmful outcome in a situation not of their making.”
He rejected “the bald proposition that seeing the father would be too much for the children. Children are goodhearted and adaptable and, given sensitive support, I am sure these children could adapt considerably to the changes in their father. The truth is that for the children to see their father would be too much for the adults.”
