ENGLAND AND WALES
J v. B (Ultra‐Orthodox Judaism: Transgender)
High Court of England and Wales (Family Division)
30 January 2017
Article 2: Non-discrimination;
Article 8: Preservation of identity;
Article 12: The child’s opinion;
Article 13: Freedom of expression.
Other International Provisions:
European Convention on Human Rights, Articles 8, 9 and 14.
Children Act 1989, Section 1(1) providing that the welfare of the children is the court’s paramount consideration; and Section 1(2A) providing that there is a presumption, unless the contrary is shown, that an absent parent’s involvement in a child’s life will further the child’s welfare.
The Sex Discrimination (Gender Reassignment) Regulations 1999, the Gender Recognition Act 2004, and the Equal Treatment Directive (2004/113/EC), leading to the Sex Discrimination (Amendment of Legislation) Regulations 2008.
Equality Act 2010, which makes it unlawful for a school to discriminate against, harass or victimise a pupil or potential pupil in relation to admissions, in the way it provides education, in the way it provides any benefit, facility, or service, or excluding a pupil or subjecting them to any other detriment.
Education (Independent School Standards) Regulations 2014, which include a curriculum obligation to encourage respect for other people, paying particular regard to the protected characteristics set out in the Equality Act 2010.
Human Rights Act 1998, Section 6, which makes it unlawful for public authorities to act in a way that is incompatible with a right under the European Convention on Human Rights.
The Court had to decide whether five children (aged between 2 and 12) living with their ultra-orthodox Jewish mother can have direct contact with the other parent (“X”), now living as a transgender woman. The marriage between the parents of the children ended in 2015 when X, their father, left the home and commenced living as a transgender woman. The children remained with the mother and lived as part of the North Manchester Charedi Jewish Community, maintaining no contact with X because of the mother’s fear that the ultra-orthodox community would ostracise the family if they did. X brought an application before the Court for direct contact with the children, seeking to be sensitively reintroduced to them so they could understand her transition. The mother sought to limit contact to indirect contact through letters.
Issue and resolution:
Contact with family, religious freedom, transgender discrimination. The Court had to determine what would best promote the welfare of the children. The Court declined to allow direct contact between X and the children, limiting contact to indirect contact by writing letters to the children four times a year, with the suggestion that these could be sent to mark three Jewish religious holidays and the children’s birthdays.
The Court characterized the decision in the case as being between two irreconcilable minority ways of life – ultra-orthodox Judaism and transgenderism. The Court noted that “these children are caught between 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.” The Court was extremely mindful of the risk that if the children had direct contact with X, the Manchester Charedi Jewish Community could ostracise the family and ultimately force them to leave the community. This risk was supported by evidence presented to the Court.
The Court prioritised sustaining the continued chosen way of life for the family, noting that “these parents decided to bring up their children according to the narrow ways of the community, and they continue to agree about this. That being the case, the priority must be to sustain the children in the chosen way of life, preserving their existing family and social networks and their education”. The Court explained that “the best possible outcome would be for the children to live with their mother, grow up in the community, and enjoy a full relationship with their father by regular contact. The worst outcome, I find, would be for the mother and children to be excluded from the community. The question is whether, in striving for the best outcome, the Court would instead bring about the worst.”
The Court found that the benefit to the children of direct contact with X was outweighed by the negative impact of the community reaction toward the family. The Court reached the conclusion that the likelihood of the children and their mother being marginalized or excluded by the ultra-Orthodox community is so real, and the consequences so great, that this one factor, despite its many disadvantages, must prevail over the many advantages of contact with X.
Excerpts citing CRC and other relevant human rights instruments:
“The United Nations Convention on the Rights of the Child 1989 has been ratified by the United Kingdom and has persuasive effect. In addition to the above-stated principles, Article 2 protects children from discrimination on the basis of the status of their parents; Article 8 provides for respect to be paid to children’s rights to preserve their identity, including nationality, name and family relations; Article 12 provides that children who are capable of forming their own views shall have the right to express those views freely in all matter affecting them, their views being given due weight in accordance with their age and maturity, and that children shall be given the opportunity to be heard in any judicial proceedings affecting them; Article 13 provides that children shall have the right to freedom of expression, including the freedom to seek, receive and impart information and ideas of all kinds.”
The judge said he would send a copy of the judgment to Nick Gibb, the Minister of State for School Standards at the Department of Education, having noted in the case that “there is, to say the least, evidence that the practices within the community, and in particular its schools, amount to unlawful discrimination against and victimisation of the father and the children because of the father’s transgender status.”
Following the Court’s decision, a national newspaper reported that the possible social isolation suggested in court has since occurred and teachers have ordered other pupils to stop talking to the child in the school. On 14 February 2017, the Independent newspaper published an article indicating that teachers at the private ultra-orthodox school that one of the children attends have instructed pupils to stop talking to the child because she has a transgender parent. The article continues by stating “In addition to being shunned at their current school, the girl’s family fear that they are unable to change to another school, as all the Jewish faith schools in the area will now refuse to let their child enrol due to pervading transphobia among some members of the community.”
A spokesperson for the Department for Education told the Independent newspaper that all independent schools in the UK are expected to meet the independent schools standards, which includes a requirement to have an effective anti-bullying strategy in place, as well as respecting minority groups outlined in the Equality Act, including transgender people. They added that deliberately ostracising a child due to their parent’s gender identity would be a likely breach of such requirements and the department would take action if this is found to have occurred.
Several commentators objected to the outcome of the case, arguing that the Court failed to give due weight to the welfare of the children and neglected the importance of virtue as an aspect of child welfare, as raising children to have highly prejudicial attitudes towards protected groups is arguably harmful for them. Commentators also criticised the finding that the children will better thrive in the community without contact with the father for being based on an assumption that these children will be heterosexual and cisgender.
CRIN believes that this judgment is, on balance, consistent with the CRC. Despite the extremely difficult and upsetting nature of the case, the Court gave utmost priority to the children’s best interests in line with Article 3 throughout its analysis, and attached due weight to the views of the eldest child in line with Article 12. Although the outcome of the case is far from ideal, the Court attempted to lay the foundations for a future relationship between the children and their transgender father, directing child experts to support the process of creating a narrative in age-appropriate stages to help the children understand their father’s departure and transgender identity.
 EWFC 4,  All ER (D) 108 (Jan)
Link to Full Judgment:
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.