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

Religious Colours : Spiritual LGBT

LGBT History Month Event hosted by The LGBT Fed

In February The LGBT Fed held an event for people of all faiths and none, to meet and discuss spirituality; ‘an evening of free public debate and discussion on Religion, Belief and Philosophy’ to be precise. Five speakers from organised religions were willing to offer their brief thoughts on the subject one evening during LGBT History Month and discussion groups and snacks would follow their thoughts. The intentions being to hold a respectful and open discussion; to learn more about a wide variety of views, thoughts and feelings; to hear about peoples experiences and solutions to problems; all in an atmosphere of acceptance tolerance and dare I say communion.

For some this was and is a hot topic.

It seems some of the invited speakers had more pressing things to attend to and at the last minute couldn’t attend. This was unfortunate as it changed the flavor of the evening, however it meant that we were able to spend more time talking with each other which was lovely, and dare I say possibly better? Our ‘lone voice’ was Rev Cecilia Eggleston from Northern Lights MCC. Not one to crumble in the light of a challenge, she gave us some of her thoughts about spirituality, organized religion, and a compassionate god, but mostly about a loving approach to all peoples. Stop laughing. I know it’s not what you usually hear. But we did, we had a religious leader (female as it refreshingly happened) who was more interested and concerned about whether I felt cared for and loved in my life, than whether I believe the same as her. Cecilia spoke about her interest in people i.e. “who are you?” and “are you ok”, rather than “what do you believe?” A cool drink in this dry land of oppression.

Cecilia gave the view that perhaps an immense god can decide for him/her self whether you and I were good enough, on the right side, in or out, etc. and doesn’t really need our help to make that judgment thank you (I précis). Good point I think. I for one wouldn’t want to presume to know as much as, or better than, an all-seeing omnipotent originator of life, whatever shape he/she/it takes. I know better than to take on more than I can chew, so to speak.

One of the key things I heard people say during the evening was how important one person can be, the importance of individuals, individual people, and the impact one person can have on the whole of another person’s life. In discussions, I heard people comment that any religion or belief or dogma only has an influence if one person makes it so, and more importantly, that the person can make it a positive or negative influence on others. Basically, that what you as an individual say matters, how you treat people matters, what you believe about the other person matters. During the discussion groups we shared some stories of hard and hurtful times at the hands of individuals from many ‘religions’, and I heard that some of us are yet to heal from those experiences. The pain for some people was palpable to the rest of us, and tears were shed. Some people talked of having walked away from strongly held spiritual beliefs, giving up what they considered a life long core part of themselves, serious and long term commitments, unable to continue in the organized religious groups they held so dear. Some of us have yet to find a spiritual home.

Whatever you think of religion in any of its various forms, many of us have a wish to be part of something existentially bigger than ourselves. I heard some people (and it was the majority but not all) have had dreadful and life changing experiences. Some of us have had doors slammed in our faces – literally, some have been accused of evil influences on others, some that we need to change our sexuality (or at the least not practice it) to stay belonging. Because of our honesty about our innate and unchangeable sexuality, we have suffered.  ‘Honesty’, isn’t that core to all religious and spiritual teaching? During the evening we were a bit short of people voicing broader spiritual approaches, rather than religious thinking (mainstream organized), but perhaps another time….

Personally, I’m with the rainbow, I want all the colours, all the tones and all the interpretative varieties, oh and a pot of gold at the end too if there is one.

Some of us have been subject to fundamentalism in one form or another, and in brutal ways, and took a few minutes to tell us about some of those experiences. The evening took me back to the time I was called ‘possessed’. So not just wrong, not just bad, not just the sugar coated ‘sinful’, not even just in need of some kind of ‘redemption’… But actually on the Other Side. The evil, bad, degenerate, malevolent, inherently embodying or associated with the forces of, wickedness.  Heavy. I’d forgotten just how flattening the weight of all that is, how damaging to a sense of wellbeing, and of fundamental worth. This still happens.

In general the evening’s discussions were positive and supportive, and people were clear about the hurt that they had experienced and the path beyond that hurt.  Clear that ‘the religious group’ of whatever flavour (or colour) was not the main problem. It’s the people, the individuals, their individual misuse of power, the focusing on private intimacy between consenting couples (sex), the selective choosing of texts to the ignorance of others, the creation of dogma. Thankfully we also had solutions as part of our experience. We all knew one person who didn’t condemn or exclude but who ‘got to know the individual’, ‘cared about who and how they were’, and ‘acknowledged that their god being so powerful and massive will therefore be more than able to see and decide a persons religious credibility for him/herself.’

Some of us touched on the positives, and the liberties LGBT people now have in most of Britain. I.e. to be in a civil partnership, to be married, to have joint house tenancies, to be legally (if not always automatically) consulted about a partner’s illness or death, etc.. Reminding ourselves of how change has come about, even in our own lifetime. About the results of battles our elders have fought (lets not forget that folks) so we can walk down the street hand in hand if we want to (do we do that often enough?), so we can book a hotel room as a couple, so we have rights even if we come across discrimination. Religious groups may have a long way to go, but the secular have taken ages, literally, to get to the point we’re at now, I think maybe we can be a little patient as some groups catch up?

It’s a tricky one, religion. Like politics I take the view never to discuss it late in the evening or after alcoholic beverage has been imbibed, as this hot potato inevitably raises strong emotions and often upsetting experiences. But, it was refreshing to spend an evening talking about our spirituality, beliefs, philosophies, and religions, with LGBT friends. I hazard a guess it’s not something many of us have discussed at length very often, perhaps due to a tendency towards political and practical immediacies. It was completely invigorating to be able to link two parts of my life, sexuality and spirituality, not diametrically opposed after all.

And later, driving home I heard Susan Calman on the radio. It seems there are lesbians everywhere, visible in every sphere of life, in major religious groups, in professions, in the headlines and the corners of society.  It’s good to know, and excellent news that some of us manage to maintain a positive outlook on life, despite, rather than because of our experiences.

So mote it be.

Ruby

Quotes from the evening:

“I remember how scared I was and how hard it was to come out to my religious parents. the stakes were high. I had to be very very sure. There would be no going back. There would be no family.”

“I remember being told I was demon possessed, and believing them.” 

“I remember people I knew and loved, close friends, walking round me on the street, crossing the road, not answering even ‘hello’.”

“I remember not wanting to say nothing to anyone about my girlfriend. I knew some people wouldn’t like me. I knew it would be the end of our friendship, I didn’t want that so I was careful what I said. I was right.”

“I remember someone asking me if I was gay. I was terrified. I didn’t think I was going to get out of the room without being hurt. I didn’t tell them, but they presumed which was just as bad.”

”I remember not telling anyone. I was always alone. I wanted to be part of the church group more than I wanted a partner. I regret that now”.

“I remember the day I found a vicar who said it was ok that I was gay. It was such a relief I cried for days. I can have both parts of my life, my beliefs in a kind god and my sexuality.”

For anyone interested our speaker was : Rev. Cecilia Eggleston Northern Lights Metropolitan Community Church. http://mccchurch.org

2015 IDAHOT Day – Celebrating Sexual and Gender Diversities

The International Day against Homophobia, Transphobia and Biphobia is celebrated worldwide and every year on the 17^th day of May.  It is a day set aside for the celebration of sexual and gender diversities.  It was created in 2004 to draw the attention of policymakers, opinion leaders, social movements, the public and the media to the violence and discrimination experienced by LGBTI people internationally.  In just about a decade, the day has established itself as the single most important date for LGBTI communities.  It is now celebrated in more than 130 countries, including 37 where same-sex acts are illegal, with 1600 events reported from 1280 organizations in 2014.   Here in the United Kingdom, the event is marked across the country by various LGBT organisations and the highlight of the day is usually the hoisting of the Rainbow flag (symbol of the LGBT community) in many public places, including town halls and civic centres, and speech giving by both government officials and private individuals in solidarity with the LGBT communities.

The day May 17^th was specifically chosen to commemorate the World Health Organization’s decision in 1990 to declassify homosexuality as a mental disorder.  As a result, it has received official recognition from several States, international institutions, including the European Parliament, and by countless local authorities. Furthermore, many United Nations agencies also mark it with various events.  The day was first known as the ‘International Day against Homophobia’ and in 2009, Transphobia was added explicitly in the title of the name, in the recognition of the very different issues at stake between sexual orientation and gender expression. It was this year that Biphobia was added to the title as an acknowledgement of the specific issues faced by bisexual people.

As we celebrate this unique day in the history of LGBT communities, it is necessary to draw the attention of world to the fact that at the moment, at least 81 countries across the world criminalize same sex relationships. This means that 40% of the world population (or 2.8 billion people) are not free to choose who they love. Millions of homosexual and bisexual people live in a constant state of fear.  Sexual and gender minorities face public stigmatization, police violence, state repression, attacks and murders. Their most basic human rights are being denied daily, while in 10 countries, including countries in Africa, the death penalty can be applied for same sex acts.

As someone of African descent, I am in no doubt that Africa is the most homophobic continent in the world.  There are, at the moment, about 20 countries in the continent where being gay is criminal offence.  Apart from government legislations against LGBT people, they are also seen as taboo and an abomination by society in general. Some of these countries are Cameroon, Ghana, Uganda, Malawi and Nigeria.  LGBT people are generally regarded as outcasts and derided upon.  Homosexuality and transgender are seen to be against African conservative traditional beliefs. In these countries, homosexuality has been described in the most provocative ways by their leaders. In Uganda, President Museveni said ‘homosexuals are disgusting’. President Mugabe of Zimbabwe said ‘homosexuals are worse than pigs’ and threatened to kill them.  The Gambian president, Yayah Jammeh warned all homosexuals to flee his country or face death by beheading. His country, like most other African countries, punishes homosexuality with up to 14 years in prison.  He had previously called LGBT people as ‘vermin’ and has compared his fight against them to ‘fighting malaria-causing mosquitoes.’  He said, ‘L-G-B-T’ can only stand for Leprosy, Gonorrhea, Bacteria and Tuberculosis.  All these threats have left many African gays to either commit suicide or to go underground in fear of attack on their lives.  There are few that are fortunate, (like myself), that have been able to come to the United Kingdom and other European countries to seek protection.  At the moment, many African gay men and lesbians are being tried and imprisoned.  There is a witch hunt and perceived and real gay men are daily attacked and in some cases, murdered in cold blood.  The threat against gay people in Africa is not speculative but real.

The International Lesbian and Gay Association reported in May 2014 reported that gay activists in Nigeria have reported instances of mobs attacking people they believed to be homosexual and beating some of the victims to near death. These victims, on being taken to the police station are then further roughed up by police officers.  Furthermore, the Swedish Migration Board report of a fact finding mission (FFM) to Nigeria conducted between 11 and 16 May 2014, released in December 2014, stated ‘The consulted interlocutors agreed that Nigerians in general are against homosexuality. Cornerstones in society’s perception of homosexuality include opinions that homosexuality is unnatural, sinful, and an abomination, as well as the importance of family and reproduction.  When addressing LGBT issues, the focus in Nigeria is on homosexuals, and men primarily. Other persons concerned within the LGBT designation, such as transgender and intersex persons, are overwhelmingly unseen in society. Furthermore, many Nigerians do not consider the situation for homosexuals a significant problem. Many Nigerians are attached to what is considered African values and are profoundly religious. Homosexuality, however, is largely considered non-African, and churches and mosques preach that it is the work of the devil. There is no religion in the country that is not opposed to homosexuality. Within this context, a politician who starts advocating for the rights of homosexuals risk losing his/her position. The issue is taboo in society. The man on the street condemns homosexuality. A homosexual is seen as the black sheep of the family, and is ostracised by society. Criteria perceived as indicators of homosexuality, and which may attract attention for attack and persecution, include; being unmarried and childless, shared housing, appearance (non-conformists may attract attention as well as effeminate men and masculine women)’.  The above report paints a very clear and vivid picture of the precarious circumstances in which gay men and lesbians conduct their affairs not only in Nigeria but indeed, in the whole of Africa.

As we celebrate IDAHOTB day, it is vital for everyone who loves freedom and equality to lend their voices against these oppressive laws against LGBT people. These laws only make people flee their countries for safety.  These laws lead to friends and families becoming informers and turns citizens against each other. Unfortunately, both church and state are now inciting homophobic hatred to gain strength with their followers.  This is absolute backwardness in Africa, when, in other parts of the world, many nations are moving forward in their acceptance of homosexuality.  I ask Britain and other gay-friendly countries to support the activities of LGBT organizations in countries.  In this way, they too will be able to support their LGBT communities across the world. And to all anti-gay countries, let us say it loud and clear that it’s a NO TO HOMOPHOBIA, TRANSPHOBIA AND BIPHOBIA.

Abraham Eiluorior

Abraham is an asylum seeker and lives in Sunderland.

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.