J v B Blog

“I find this a very troubling case. These children are caught up 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. It is painful to find these vulnerable groups in conflict.” (para 162)

These are words of Mr Justice Peter Jackson in the judgment of J v B (Ultra-Orthodox Judaism: Transgender) [2017] EWFC 4. As a simple overview, this case concerned a MtoF transgender father was seeking direct contact with his 5 children who were members of an Ultra-Orthodox Jewish community. The application was refused and only indirect contact allowed.

The judgment holds some improvement in relation to understanding what gender dysphoria and what being transgender is and means:

“People who experience gender dysphoria are in no way mentally ill, but they often suffer great stress from hiding their identity.” (para 14)

“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.” (para 179)

Of course, these are points that have long been known to millions of people for thousands of years, and it is relieving to finally see them starting to be acknowledged properly in our case law.

However, as relieving as some of the commentary was, the judgment stopped short of giving this transgender parent any direct access to the children on the basis that the children would be ostracised and rejected by their Ultra-Orthodox Jewish community, and further described by Rabbi Oppenheimer that the effect would be “so much more” than this (Para 96). There are obvious, and understandable concerns in relation to how the subject children would be treated by the other families in the community should the children have direct contact with their father and these are clearly described in the judgment and absolutely needed to be properly considered.

We hear that the mother said that ‘there was no way that direct contact will work out for the children, for their identity, for their culture and for their whole environment.” Now, the Judge rightly pointed out that the law provides legal protection against victimization but still concluded that, ‘The impact on the family in such circumstances in terms of social isolation will be devastating.’(Para 95) We heard that the evidence of Rabbi Oppenheimer explain that, ‘There is therefore an obligation to protect the children from finding things out that are likely to damage them and cause them pain and suffering, likely to damage their growth and spiritual well-being.’ (para 97)

Even reading all the concerns in relation to how the children would be treated should the father be granted direct contact, I was deflated when I read the decision. This is not because I think one ‘right’ is more superior than the other, but because it felt as though intolerance won, rather than a specific right. This decision continues to allow children to be exposed to intolerance and suppression, that could lead them to further suppression and personal conflict later down the line. What if one of the children are gay? Transgender? Non-binary? This decision seems like the easy short-term answer and the long-term consequence was left ill-considered.

Indeed, our rights as individuals often have to be weighed against one another in cases and when any judge has to add weights to each side of the scale and decide which drops, it is, no doubt, ever easy. However, drop it must and where it does is always a powerful declaration. We have such a complex and wonderful variety of communities within this country, but we must not be afraid to notice when there are practices and conventions within those communities that do not allow for the basic principle

of dignity. For example, domestic violence is never tolerated in law (whatever the cultural context) in this country and this is absolutely right. So why should we allow for the discrimination and prejudice to be perpetrated against the transgender community? We would not allow it in the street, so why in a private home?

I am and will forever be an advocate for everyone’s human rights, and freedom of religion is a human right that must be respected – it brings a lot of beauty to the world – however, in this case I feel as though the scale has been tipped the wrong way.

These children are now being raised having been told by the court that having contact with a transgender parent is not in their best interest. Indeed, the judgment qualifies the decision and seems to make the decision with regret, but the majority of society won’t read the full judgment and the children may not for several years. And until they are of an age they can make their ‘own decision’, (which is suggested as being 18), they continue to be taught that to be ‘gay or transgender is to be a sinner’ (Para 97). And I fear, whatever the outcome when they reach the age of autonomy, it will be too late: either the children will feel an abhorrence to transgenderism, decide to not see their father and continue to live with the prejudices they were taught in relation to a community that have a right to be treated equally, or they will decide they do want to see their father and have missed out on having a direct relationship with them for years – either way – have they not been let down?

I don’t agree that these children have been protected from a harm. It is worrying to still see that the educating of children in respect of transgender issues and allowing them to be exposed to transgender lives can still be deemed harmful.

As Mr Justice Jackson rightly said, “the truth is that for the children to see their father would be too much for the adults.” (Para 181) … Well, the last time I checked the paramount consideration in children cases, were children?

Full judgment here: http://www.familylawweek.co.uk/site.aspx?i=ed175661

 

Written by Lui Asquith

Ben Hoare Bell, LGBTIQ Family Law Solicitor

February 2017

What’s in a Name: An Introduction

I on Friday 2 October 2016 made the decision to change my name to Lui. When born, I was called Louise you see, but my work, my sexuality and my LGBT+ activism have secured my opinion that no one should assume how anyone identifies, with regard to either their gender or sexual orientation, just because they know someone’s name.

‘Louise’ does not mean I identify as a female, (although I may,) nor does it mean I want to be constrained to the social roles that are still imposed on women today. I therefore chose Lui as it would mean those who did not know me, would not automatically know whether I was ‘male’, ‘female’ or whether I identified as either (‘non-binary’).

Too often stereotypes and assumptions are made simply by knowing someone’s name and too often people are subject to years of confusion, upset and mental health issues due to having to grapple with the concept that one may actually be the gender that is opposite to that which their name suggests, or that they have no affiliation to any gender at all.

I therefore, on Friday 11 November 2016, witnessed by my friend and colleague (and outgoing author for this very blog), Cris McCurley, signed a Change of Name Deed in solidarity against assumption, against stereotypes, and in solidarity with the crusade against global gender discrimination we see imposed in societies every day.

Now, I am not suggesting that everyone should change their name to a non-binary name or otherwise be accused of not acting in solidarity – this is simply something that felt right in me. There are many ways each and every one of us can and do, do ‘their bit’, and every single act we all do is no small thing.

The firm I work at, Ben Hoare Bell Solicitors, have just founded two new family units: the ‘LGB Family’ Unit and the ‘Trans Family’ Unit. These are family units dedicated to LGBT communities – we offer a bespoke and unique service to all LGBT people; this is something I am so proud and excited to be part of and is a huge step for the region. Now, one thing that has made itself very clear, very quickly is that names are a powerful thing; I have the pleasure of working with a lot of trans people who change their name to one that finally illustrates their gender identity – always a milestone and always a powerful moment. Names – and the gender therein – can be just as important to some, as it was for me not to have a gender assigned to mine.

The law in relation to the trans community, and the LGB community, is fast moving and I look forward to providing you with (hopefully, interesting) legal updates and discussion in relation to different aspects of ‘LGB and T’ family law.

If you ever have anything you want me to discuss, let me know and I’ll do my best to answer to it (find my email at the Ben Hoare Bell website: http://www.benhoarebell.co.uk ).

I’ll look forward to hearing from you and until then, I hope you enjoy reading my contributions.

Lui

L Asquith, Solicitor at Ben Hoare Bell LLP

Pride 2015

Out law Pride special bulletin

It’s been an amazing couple of months with the Supreme court in the USA declaring after a long legal battle that Same-sex marriage has to be made legal throughout the whole of the United States. Rumours of the state of Texas banning all forms of marriage so as to ban Same-sex marriage without breaching equality legislation have proved to be exaggerated.

Also in Ireland, a public referendum was held asking all voters to vote for or against Same-sex marriage being legalised, the first nation to do so. Out Law was in Brisbane when the result was announced on ticker tape across the roof of the South Bank Museum of modern art – what a great way to get the news !

Last week at Pride London, the Law Society had a huge turn out of LGBT lawyers in the parade, marching for LGBT human rights.

Northern Pride: this Saturday, The LGBT Fed stand will have lots of these lovely Legal hero Pride 15 T shirts to give away, so stop by and see the team, including Out Law. LGBT Lawyers have done so much to further Human rights in of LGBT people in the UK. Show your support by wearing the T shirt with Pride.

See you there,

Out Law

 

Outlaw returns to The LGBT Fed…

OUTLAW: APRIL/MAY 2015

A warm welcome back to the Outlaw Column, now in its new home on The LGBT Fed blog.

It behoves Outlaw in the run up to the election to issue a word of warning to all LGBT Federation members. One election promise that was made more than 2 years ago at the Conservative Party Conference by Theresa May was that if the Conservatives once again come to power, they are going to repeal the Human Rights Act 1998.

The Human Rights Act was the enactment of the United Nations Declaration on Human Rights, signed in 1948 in the wake of the atrocities of the Second World War. The world was so shocked by what had happened to people from the Jewish, LGBT and travelling communities in the concentration camps that it rose as one to say, “never again.” As a result a list of promises that we make to each other was drawn up as our covenant about how we want to treat each other and be treated.

The United Kingdom has no constitution (apart from the Magna Carta which has no relevance today) which was why, unlike other countries, we had to make a new law in order to comply with the United Nations Convention which made all of the terms and freedoms guaranteed by the United Nations Declaration legal and binding in the United Kingdom.

The Human Rights Act governs everything from the right to life, to the right to privacy, education, freedom from degrading and inhumane treatment, freedom from slavery, the right to a family life , and vitally, access to justice and to a fair trial … what’s not to like? Outlaws grave concern about a new Tory Government is that we will loose all of that as they plan to scrap the Human Rights Act. Having given it much thought, there is no good reason for doing this: unless a future Conservative Government wishes to treat some of us, or certain communities with something less than humanity. This is unacceptable. Many of us might argue that they have done this throughout their last term in Government, by introducing such measures as the bedroom tax and a whole raft of punitive benefit measures, not to mention the horrors of trying to apply for a visa to stay in the United Kingdom if you are LGBT and your life is at risk in your country of origin. They have also seriously depleted access to justice by severely curtailing Legal Aid.

With all the unrest in the world, and the removal of thousands of us in the United Kingdom from the ability to get legal help if needed, our human rights are more important than they ever have been and we must really hold them close. Outlaw says vote for the party that will allow you to keep your rights intact.

Outlaw has also been perusing the parties LGBT manifesto promises. The Labour party is pledging a review for LGBT asylum seekers who, as anybody who has anything to do with these issues will know, that face an almost impossible uphill battle to persuade the Home Office to allow them to stay in the United Kingdom even if their life is at risk if they are returned, with people even having to “prove that they are gay”!

Labour are also planning a review of gender recognition laws and access to gender related health care with a view to bringing down the massive waiting times for trans people. There is also a plan to strengthen hate crime law and to improve LGBT representation in Parliament with an amnesty promise with the introduction of the so called “Turing’s Law” to pardon men convicted of historic sex crimes relating to outdated anti gay laws.

The SNP has also launched its manifesto on the 20th May 2015 with everyone’s darling, Nicola Sturgeon calling on Labour to work with them and suggesting the creation of a special envoy, a diplomatic person in the Foreign Office to promote the rights of LGBT people throughout the world as an integral part of UK foreign policy. In the US, Barrack Obama has created a similar post, appointing diplomat Randy Berry. Labour has responded by saying that they would be minded to create a similar role for House of Lords member, gay rights advocate Michael Cashman. The Conservatives remain opposed to this, which will possibly not surprise anyone.

Meanwhile over in Northern Ireland, the Democratic Unionist Party have failed to mention LGBT issues at all in their manifesto, and have historically opposed any and all LGBT rights votes in Westminster and in Stormont. A recently drafted “conscience clause” is part of a Bill to exempt religious people from equality laws. Making the headlines earlier this year was Asher’s Baking Company in Ireland who refused to make a wedding cake for a gay couple. This is important to us in mainland UK as the DUP and other Irish parties are being tipped for possible coalitions with the Conservatives. Northern Ireland is the only part of the UK who continues to oppose same sex marriage.

In relation to the Liberal Democrats, many will be aware of the Human Fertilisation and Embryology Bill currently going through the Commons. In 2005 the Lib Dems made a manifesto commitment to end discrimination against lesbians seeking fertility treatment. In a free vote in the Commons on the new Bill, which proposes easier access to lesbians and single women to NHS fertilisation services, and will allow a lesbian or gay couple to be named on the birth certificate as the legal parents of the child, was subject to a free vote. Among 16 Lib Dems who voted against the Bill were front benchers including Vince Cable, Steve Webb and former leader Charles Kennedy. Disappointingly North East Lib Dem MP, Alan Beith, also voted against.

To be fair to the Conservatives, they also offered a free vote on this issue and 49 voted in favour of the Bill including the party leader David Cameron, George Osbourne, Ken Clarke and Jeremy Hunt. 84 Tory MP’s voted against.

In terms of UKIP, politeness and a healthy regard for broadcasting and journalism laws prevents Outlaw from expressing an opinion on UKIP’s LGBT election manifesto.

For many of us section 28 of the Local Government Act which effectively banned any positive images of LGBT people in public life in the UK is still a vivid memory. The LGBT community in Russia is feeling the full impact of their very own section 28, which is based in fact on the UK legislation. All around the world LGBT people are being subjected to “curative rape” (South Africa to name but one) execution (Iran, Iraq, Afghanistan) and a quick visit to the Human Dignity Trust website gives a list of the 79 countries/jurisdictions where being LGBT is a crime. Please do not take the human rights that we currently enjoy in the United Kingdom for granted, and vote accordingly. Once we lose them we will never get them back.