Gender dysphoria, family breakdown and Ultra-Orthodox Judaism

Background

In J v B (Ultra-Orthodox Judaism: Transgender) [2017] EWFC 4, the couple, who were members of the North Manchester Charedi Jewish community, ended their marriage in June 2015 when the father, J, left home to live as a woman. J then had no contact with the children because of the attitude of the Charedi community to transsexuals [3 & 4]. J nevertheless “remained an Orthodox Jew, maintaining a kosher diet to the best of her ability and attending Orthodox synagogue when she could” [60].

J wished to be sensitively reintroduced to the children, who should be helped to understand her new way of life and allowed to enjoy regular and significant contact with her outside the community [8]. B had been opposed to any contact whatsoever but, having seen the professional advice provided to the court, now accepted that the children should have indirect contact with J; however, she opposed direct contact of any kind during their childhoods because, she claimed, it would “lead to the children and herself being ostracised by the community to the extent that they may have to leave it” [9].

“The mother acknowledged that the father had been a loving father to the children. She said that she constantly tells them that their father is thinking about them and cares for them. She said that from the first moment she had made a conscious decision not to be ‘that bad mother that poisons children against their father. I promote good memories and challenge negatives.’ She accepted that the children missed their father in their different ways, although A [the eldest child] now feels deceived. She tells the children that their father is happy and thinks of them. They think that he is in London. In summary, she is prepared to bring the children up to honour and respect the father that they know and love, being the father as he was, not the father as she is” [71: emphasis in original].

The Jewish law on transgender issues

Paragraphs [12] to [16] provide a brief summary of the terminology about relevant aspects of Jewish law and in relation to gender dysphoria. The court heard expert evidence from two rabbis.

On behalf of J, Rabbi Ariel Abel, a law graduate and trainee solicitor who grew up in the North Manchester Charedi community, emphasised the central importance of honouring one’s parents within Jewish law and tradition and that, even if the father was an outright sinner (which J was not), the obligation persisted [80]. He considered that there was a plurality of opinion on transgender issues and that the biblical position might be qualified. There was no valid reason why anyone should plead ultra-Orthodox faith as a reason to disenfranchise a person in J’s position:

“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, physically, spiritually, emotionally and communally” [80 & 81]

On the other hand, Rabbi Andrew Oppenheimer, a legal academic and teacher and adviser to organisations and educational institutions in the Charedi community, was clear that a transgender lifestyle and the procedures to achieve sex change violated several basic principles of the Torah, including the prohibition against castration (Leviticus 22.24) and the prohibition against wearing garments of the opposite sex (Deuteronomy 22.5) [90–92]. In support, he produced opinions from two sources of higher authority within the Charedi community:

“Rabbi SF Zimmerman, Grand Rabbi of the Gateshead Hebrew Congregation:

‘1. Transgender and procedures to affect sex-change violate basic Torah principles and are prohibited by Jewish Law/Halacha.

Such procedures, post facto, do not affect any change in gender status from the person’s birth status according to Jewish Law/Halacha.’

Dayan YY Lichtenstein, Chief Justice of the Federation of Synagogues in London and its Halachic (Jewish Law) authority:

‘I can state categorically that Jewish law does not recognise any change in sex of male to female or female to male under any circumstances.

In the case of a man who was married and has undergone a sex change, for all religious purposes he will be considered male and will be required to give a Get (a bill of Jewish divorce) to dissolve his marriage. Any subsequent marriage could only be to a woman and it would be forbidden for him to have relations with another man.’ ” [93: emphasis in original]

The judgment

The Children’s Guardian and the Anna Freud Centre – a child mental health research, training and treatment centre in London – had concluded “by a narrow margin and with evident reluctance” that the benefits to the children of resuming contact with J would be outweighed by the harmful community reaction against the family, and recommended indirect contact only, with a suitable narrative explanation of J’s departure [10].

Peter Jackson J concluded “with real regret, knowing the pain that it must cause” that J’s application for direct contact should be refused. Instead, he made an order for indirect contact four times a year and suggested that it should take place “for each child, perhaps coinciding with their birthdays, and with Pesach, Sukkot and Hanukkah”. The Anna Freud Centre had offered to advise on the terms of the narrative explanation [188].

Comment

This is a complex case that requires a specialist in family law (which I am emphatically not) to do it any kind of justice; and those seeking further information are urged to read the judgment in full. However, Peter Jackson J’s broader conclusion on the case may be of wider application:

“179. In balancing the advantages and disadvantages of the children being allowed to see their father, I apply the law of the land. Some witnesses in these proceedings assert that gay or transgender persons have made a lifestyle choice and must take the consequences. The law, however, recognises the reality that one’s true sexuality and gender are no more matters of choice than the colour of one’s eyes or skin.

180. It has also been said that transgenderism is a sin. Sin is not valid legal currency. The currency of the law is the recognition, protection and balancing out of legal rights and obligations. In this case, to be recognised and respected as a transgender person is a right, as is the right to follow one’s religion. Likewise, each individual is under an obligation to respect the rights of others, and above all the rights of the children” [emphasis added].

Cite this article as: Frank Cranmer, "Gender dysphoria, family breakdown and Ultra-Orthodox Judaism" in Law & Religion UK, 31 January 2017, http://www.lawandreligionuk.com/2017/01/31/gender-dysphoria-family-breakdown-and-ultra-orthodox-judaism/

3 thoughts on “Gender dysphoria, family breakdown and Ultra-Orthodox Judaism

  1. Pingback: Law and religion round-up – 5th February | Law & Religion UK

  2. My only comment is to thank you for bringing this to my attention. I practised for many years as a family lawyer and was a member of The Children Panel from its inception. I never had a case like this.

  3. Pingback: Gender dysphoria, family breakdown and Ultra-Orthodox Judaism revisited | Law & Religion UK

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