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Ruling that transgender Orthodox Jewish woman can’t see her children overturned

Josh Jackman December 20, 2017
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Ultra-Orthodox Jewish men rally following the arrest of a young man who refused to serve in the Israeli the army, as they protest outside the Atlit military prison near the northenr coastal city of Haifa, on December 9, 2013. The Ultra-Orthodox community places great value on religious scholarship and believe that Torah study plays a role in protecting the Jewish people. Following Israel's establishment in 1948, they were allowed to forego military service in favor of religious studies. Today their are some 3000 Ultra-Orthodox men serving in the Netzach Yehuda, an all-Haredi (Ultra-Orthodox community known as Haredim) battalion, some of whom are going against the wishes of many in their community. AFP PHOTO / JACK GUEZ (Photo credit should read JACK GUEZ/AFP/Getty Images)

A transgender woman who was stopped from seeing her five children has seen the decision overturned.

The parent, who left her family home in 2015 to live as her true gender identity, has been shunned by her ultra-Orthodox Jewish community in Manchester.

The woman, who has not been identified, lost her court battle earlier this year to be allowed to see her children, who are now aged between three and 13.

LONDON, ENGLAND - JANUARY 19: Jewish men walk along the street in the Stamford Hill area of north London on January 19, 2011 in London, England. The residents of Stamford Hill are predominately Hasidic Jewish and only New York has a larger community of Hasidic Jews outside Israel. The area contains approximately 50 synagogues and many shops cater specifically for the needs of Orthodox Jews.   (Photo by Oli Scarff/Getty Images)
Orthodox Jews in the UK (Getty)

She was given the right to appeal this judgment in June, and now – having not seen her children for two-and-a-half years – has had the ruling quashed.

The case will now go back to the High Court.

The Court of Appeal judges, Sir James Munby, Lady Justice Arden and Lord Justice Singh, noted the difficulties of the woman’s situation in their ruling.

LONDON, ENGLAND - NOVEMBER 05:  Orthodox Jews watch the Grenadier Guards participating in ceremonial duties at Wellington Barracks on November 5, 2009 in London, England. Three Grenadier Gurardsmen were amongst the five soldiers who were shot dead during an attack by a rogue member of the Afghan police force. Two soldiers from the Royal Military Police were also killed.  (Photo by Dan Kitwood/Getty Images)
Orthodox Jews in the UK (Getty)

They wrote that “because she is transgender – and for that reason alone – the children face ostracism by the community if they have direct contact with her.”

Opposition in the Orthodox community was made clear on the first day of the last hearing, when a member posted a WhatsApp message urging others to pray for the woman to lose.

Court documents note that the post read: “HELP! SAVE! Family [name]’s (A Mother & her 5 Children) fate is in court this morning (for the next 10 days). Please Daven [pray] for them.

Representation of the WhatsApp message

“We can’t afford to lose this case. The Rabbonim [rabbis] have asked for this message to be sent. The family know and want it to be sent.

“Pls forward this message. The koach of tefilloh [power of prayer] can achieve everything.”

In his ruling in January – which has now been overturned – the High Court’s Justice Peter Jackson said he reached the decision “with real regret”.

He added: “I can see no way in which the children could escape the adult reaction to them enjoying anything like an ordinary relationship with their father.

Court of Appeal (Creative Commons)

“In the final analysis, the gulf between these parents – the mother within the ultra-Orthodox community and the father as a transgender person – is too wide for the children to bridge.”

But the Court of Appeal judges have decided that a parent being able to see their children was more important than these concerns.

“In our judgment, the best interests of these children seen in the medium to longer term is in more contact with their father if that can be achieved,” the judges wrote.

“So strong are the interests of the children in the eyes of the law that the courts must, with respect to the learned judge, persevere.

“As the law says in other contexts, ‘never say never’. To repeat, the doors should not be closed at this early stage in their lives.”

In a statement, the legal team which acted for the trans woman said: “This decision is one that will be welcomed not just by LGBT individuals living within small religious groups, but by the LGBT community in general.

“It sends a clear message that no religious community can operate on their own island but must conform to the law of the land.

“We are grateful to Stonewall Equality Limited and Keshet Diversity UK for their interest and input in this case.”

A Stonewall spokesperson said: “No one should be forced to choose between being who they are, and their family and community. It was essential this judgement was overturned because the message it sent was extremely dangerous.

“Not only did it suggest that trans equality was incompatible with faith, it forcibly separated a parent from their children, simply because of the parent’s identity.

“It was widely denounced at the time by many, including the Jewish LGBT charity Keshet UK, whose work has been vital in getting justice in this case.”

The spokesperson continued: “LGBT people exist in every community, and this ruling demonstrates that your gender identity cannot be used to stop your right to family life, your community and to respect as an individual.

“Faith is an important part of many LGBT people’s lives, and it is a damaging myth that LGBT equality and faith cannot coexist – many faith leaders and communities are already demonstrating that it can.

“Stonewall will continue to work with many different faith organisations, leaders and schools to ensure that LGBT people are accepted without exception.”

Harry Small, a partner at Baker & McKenzie – which represented Stonewall – welcomed the ruling.

“I think it is an excellent judgement,” he said. “The judge appealed from refused any direct contact between a transgender father and her children.

“The Court of Appeal made it clear that the judge appealed from should not have given up so easily in the face of potential intransigent conduct from one religious community and in particular its schools, and he should have taken into account the human rights implications because at least what the schools might do in effectively allowing the children to be ostracised because they had a transgender parents would very likely be in breach of the Equality Act.

“The case has been sent back to Manchester to, effectively, try harder to arrange direct, supervised contact, which is the very highest right of the children.”

He added that the ruling sent out a clear message. “The essence is that religion does not trump the ordinary law, be it the equality laws or otherwise.”

Related topics: Charedi, court, court of appeal, gender, Judaism, Manchester, Orthodox, Religion, Trans, Transgender, UK

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