Analysis
Transgender father case shows it is time to face our prejudices
This is just the latest case in which the courts are intervening in religious issues
December 21, 2017 10:59
2 min read
This is just the latest case in which the courts are intervening in religious issues
December 21, 2017 10:59The fascinating case of a transgender parent who wasn’t allowed direct contact with her Strictly Orthodox children is just the latest in which the courts are intervening in religious issues. Are they going too far?
When the UK Supreme Court came into being in 2009, its very first case was one which the Jewish community will never forget. The court ruled that JFS’s admissions policy, based on fundamental tenets of Orthodox Jewish law, was unlawful racial discrimination.
The JFS case made one thing very clear. The rise of equality and human rights laws meant that courts would be stepping into areas of religious observance as they hadn’t previously - even if it was, as Lady Hale said in the JFS case, with “reluctance”.
And so it proved. In the years since, the UK’s judges have been regularly involved in cases involving religion.
There have been a series of rulings about religious Christians who refused to provide services to gay people, whether a room in a bed and breakfast, relationship counselling or even a cake with a pro-LGBT image on it. In each, the believers were told they couldn’t discriminate.
Earlier this year, the Court of Appeal ruled that an Islamic school had acted unlawfully by separating girls and boys for lessons and social activities. Even though the standard of education was consistent, the children were missing out on the benefits of socialising and learning with the opposite sex.
Closer to home, a Jewish nursery was found earlier this month to have discriminated against a teacher who was sacked for "living in sin" with her boyfriend.
Then came this week’s important judgment from the Court of Appeal, overturning a High Court ruling that five children in the Strictly Orthodox Manchester Jewish community would have no contact with their transgender father.
Mr Justice Peter Jackson had ruled that the children would be so ostracised by the community if they had even minimal direct contact with their father that it was too much of a risk to their wellbeing.
The Court of Appeal said, in effect, that the courts should stand up to transphobic bullying, whether it has a secular or religious grounding.
The appeal court said the judge “gave up too easily”. That he should have at least considered confronting the mother and even the community itself “which professes to be law abiding, with the fact that its behaviour is or may be unlawfully discriminatory”.
These are strong words. They also highlight a wider lesson. Religious communities are themselves protected by equality and human rights laws. But there are exceptions in cases involving conflicts of rights, where religious beliefs cause discrimination against other protected groups, most commonly the LGBT community and women.
In those cases, the courts will continue to step in - not because they want to interfere in the business of believers, but because Parliament has told them to do so by passing anti-discrimination laws. Perhaps it is time to confront prejudice and intolerance in our own community, before the judges have to step in again.
Adam Wagner is a human rights barrister and the founder of RightsInfo
