Family Law

Ultra-Orthodox Community Versus Transgender Parent, Kids In The Middle

It’s nice to see another country struggling with the balance between religious freedom and the right to be treated equally and without discrimination.

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One reason I practice Assisted Reproductive Technology (ART) law is that I like working on happy cases. To be sure, I wasn’t unhappy as a hedge fund lawyer at Sidley Austin. And even now, not all of my clients end up growing their families without stress and the accompanying rollercoaster of emotions. But for the most part, my clients have happy endings to our legal journeys.

This week’s case isn’t a happy one. And it wasn’t mine. And technically, it’s not even an ART law case. But I’m writing about it because it involves the tricky custody problems that go along with novel sexual identity issues and parentage, and which are often present in the ART cases that make headlines. Those cases force courts to evaluate what it means to be a family, and also involve challenging questions about the best interests of the children.

This court case involves a couple in an isolated ultra-orthodox Jewish community in England. The couple has five children, who are currently between the ages of 3 and 13. A few years ago, the father began to openly identify as female, and started transitioning to live as such.

The father’s transition led to the father leaving the family home and the ultra-orthodox Jewish community. In the ensuing battle over visitation, the court struggled with how to determine the best interests of the five children who the couple had raised in a highly religious environment. The children’s mother argued, probably accurately, that the children were likely be ostracized by their peers due to their father’s transgender status.

In February 2017, Mr. Justice Peter Jackson of the English High Court issued a harsh ruling that barred the father from any in-person contact with the children, and even limited contact to four letters a year. The Justice recognized that his own ruling was severe, but justified it on the basis that the children were being raised as part of a group that was hostile to transgender sexual identification.

The judge wrote: “I have reached the unwelcome 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 main advantages of contact.”

Unsurprisingly, the father appealed the ruling, and on December 20, 2017, received the Chanukah gift of a complete reversal. The English Court of Appeal (which is higher than the merely High Court) wrote that the case was “stark, deeply saddening and extremely disturbing.”

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The court went on to explain that judges deciding custody cases must evaluate the best interests of a child in terms of a “judicially reasonable parent.” That means a parent typical of today’s modern British society; generally, that’s a population that is open to, and accepting of, non-traditional ideas about gender identity, as opposed to the population of religiously observant ultra-orthodox. The appellate court’s opinion also rejected the idea that the father could be relegated to a few letters a year with his five young children.  It held that the interests of the children were actually consistent with having personal contact with their father, and that those interests were not outweighed by potential discrimination or ostracization by their community.

Colin Rogerson, an attorney with Dawson Cornwell, representing the father, explained the importance of the ruling. “This is an excellent and robust judgment from the Court of Appeal.  It was a difficult case, and one which clearly went against the grain for the trial judge.  However, it does emphasize that Judges must exhaust all opportunities to make contact work.”

The British! They’re just like us! 

While I sympathize with Judge Jackson’s concern for the children and their treatment by their community as a result of their contact with the father, this case seems clear to me. It should be an easy call — the court should not support discrimination in the name of protecting children from a religious community’s social backlash at the price of severing the relationship between the parent and the child.

Misery loves company, so in a way it’s nice to see another country struggling with the balance between religious freedom and the right to be treated equally and without discrimination. In America, courts generally have a strong track record of not giving effect to intolerance and bigotry in custody decisions. So it’s good to see England reach a similar result in this case. Good work, English Court of Appeal, taking this step to right the wrong done to this father and her children.

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Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning. You can reach her at babies@abovethelaw.com.

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