Feb 13, 2017

Transgender ultra-Orthodox case reveals painful clash of minority communities

Judge makes clear his struggle and regret in ruling that transgender woman cannot see children for fear they will be ostracised

The Guardian
Harriet Sherwood Religion correspondent
Friday 3 February 2017

It was a “collision of two unconnected worlds”, said the judge. One was the isolated, closed environment of ultra-Orthodox Jews; and the other, the painful, complex world of a father once within that community who identified as a woman. Caught in the middle were five children, aged from two to 12.

It was also a collision of legal rights: of children to have contact with and the love of both parents; of religions to practise their beliefs; and of transgender people to equal treatment.

The question facing Mr Justice Peter Jackson was this: should a transgender ultra-Orthodox woman be allowed to see her children in the face of the community’s threat to ostracise the family if contact was permitted?

His decision this week was one that shocked many observers. In a 41-page judgment that offered a rare intimate glimpse into a closed society, he said: “I have reached the unwelcome conclusion that the likelihood of the children and their mother being marginalised 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.

“I therefore conclude with real regret, knowing the pain it must cause, that the father’s application for direct contact must be refused.”

The woman, known as J, grew up in a strict haredi community, an insular subset of ultra-Orthodox Jewry, in north Manchester. In such communities, Jewish law governs many aspects of daily life: dress, food, education, culture, language (haredim speak Yiddish among themselves). Men are distinguished by their black hats and suits, long beards, and peyot (curled sidelocks); women dress modestly and cover their hair, often with wigs. Access to television, the internet and social media is not permitted. Outsiders are rarely welcome.

J, now in her 30s, has said she began to question her identity when she was six. She had “feelings of incongruity”, she told the Jewish Chronicle in 2015. “I tried to block the feelings out. I didn’t want to believe I was crazy … My teenage years were very confusing.”

In 2001, her parents arranged a marriage in accordance with haredi custom. “I don’t have much recollection of the wedding,” she told the Chronicle. “My parents are very primitive and believe that you get married because that’s the only thing you can possibly do. I didn’t have the tools to figure things out. I just wanted to make them happy.”

J tried to repress her feelings through deep religious devotion but tried to kill herself twice. The birth mother, referred to as B, knew that J, a loving parent to their children, was deeply unhappy, but she thought it was because of a religious crisis.

Eventually, with the help of an LGBT support group, J found the confidence to leave the community. She told her 12-year-old son of her intention five days before she left, but the mother only learned of J’s departure by text message after she had gone. Ten days later, the reason for J’s departure emerged via Facebook, causing such distress to B that she did not leave her house for three months.

“Even now, with everyone [in the community] aware that the father is a transgender person, she is not comfortable to be at public gatherings,” the judge said. B has needed therapy to help her understand J’s decisions.

J said she believed she was the first transgender person to have left a haredi community in the UK. She told the court she had since been ostracised: “They have to get rid of me – I have sympathy with that.”

But she was desperate to see her children. After efforts to maintain contact were ignored or rebuffed, she sought legal redress.

On the first day of the court hearing in November, a member of the community posted a message on WhatsApp: “HELP! SAVE! … We cannot afford to lose this case. The Rabbonim [rabbis] have asked for this message to be sent … The koach of tefilloh [power of prayer] can achieve everything.”

J told the court she missed the children and would accept any contact conditions, including reverting as far as possible to her previous male appearance in the early stages. She had, the judge said, gone from being the male head of a family in an intensely structured religious community to living as a single woman in wider society.

“Elements of fragility and a certain anguished self-absorption” were evident, he said.

B said direct contact would result in her children being shunned and excluded from family events and community festivities. “They [other parents] will protect their children from contact.” The impact of the children having a relationship with their father was worse than the impact of no relationship, she said. This was “the reality – it’s who we are”.

Her assessment was backed by Rabbi Andrew Oppenheimer. Haredim, he told the court, “have traditional values and seek to guard their children and themselves against what they regard as the dangers and excesses of modern open society”.

If contact was permitted, the family “will open themselves up to very serious consequences indeed. The families around them will effectively ostracise them … The impact on the family in such circumstances of social isolation will be devastating.”

The rabbi said some might argue it was “cruel, lacking in tolerance, unnecessary and denies the rights of the father”, but in Jewish law, as well as English family law, “the interests of the children are paramount”.

The oldest child’s headteacher, known as Rabbi C, said the school could not “accept a child who was at risk of being party to what our culture would view as inappropriate material or experience”. The school would not offer a place to a child whose parents were “taking them to the cinema or reading newspapers around them”, he said. There was a “very real risk that … inappropriate information or exposure would be shared with other children”.

Experts from the Anna Freud Centre, which specialises in child psychoanalysis, who assessed the family at the court’s request, said the children’s identity was “completely bound up with their place in the community”.

“If the children run the risk of being denied places at good schools and yeshivas [religious schools], 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.”

The final testimony cited in the ruling was that of J’s son, who told the judge he would be bullied and lose his friends if he had contact with his father. “If he cares, he will leave me alone.”

Jackson concluded: “I find this a very troubling case. These children are caught between two apparently incompatible ways of living, led by tiny minorities within society at large … It is painful to find these vulnerable groups in conflict.”

He listed 15 arguments in favour of direct contact, which included giving the children “some small experience of the wider world [which] might even open the door to them being able to make life choices for themselves as they grow older”.

There were two factors against such contact: the father’s dependability and the community’s reaction. It was the second of these that decided the case. “Contact carries the clear risk that the children and their mother will become the next casualties in a collision between two unconnecting worlds. The father has already experienced the consequences of that collision, and no one knows better than she how very painful they can be.”

Direct contact was refused and the judge recommended that J be allowed to write to each child four times a year. Her legal team is considering applying for leave to appeal against the decision.

Rabbi Danny Rich of Liberal Judaism – at the opposite end of the Jewish spectrum to the ultra-Orthodox – said he was saddened by the judgment, and condemned community leaders who “threaten to ostracise children and to use them as pawns in medieval game playing”.

GesherEU, a Jewish charity which helps people who leave haredi communities, said J’s children would “be brought up as part of another generation … being taught to shun those who have gender issues and who can no longer bear the suffering of living a false life”. It described the ostracising of children as abuse.

Another organisation, Mavar, which supports and advises former ultra-Orthodox Jews, said leaving the community was an agonising choice. “Many have led secret double lives for a long time before they find the courage to make contact,” said its director, Linda, who did not want her full name to be published.

“Some people feel trapped in a world that no longer meets their needs, but when they leave they find themselves in an alien world, with almost no reference points. The process is lengthy, challenging and extraordinarily painful,” she said.

https://www.theguardian.com/world/2017/feb/03/transgender-ultra-orthodox-court-case-reveals-painful-clash-of-minority-communities

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