Trans parenthood and the best interests of the child: the court's approach

Helen Taylor

This article focuses on transgender rights within family law by examining the development of a case that involves an application for contact with a child made by a transgender woman (one of the child’s biological parents). It also explores a couple of further issues that the case raises.

Last year in J v B (Ultra‐Orthodox Judaism: Transgender) [2017] Peter Jackson J ruled that contact with the applicant parent, a transgender woman, was not in the best interests of the children who came from an ultra-orthodox Jewish background and therefore the application for contact was denied.1 This ruling was remarkable given that the courts have traditionally shown a strong disposition in favour of granting contact orders. The following text by Lord Bingham MR in Re O (A Minor) (Contact: Indirect Contact) [1996] demonstrates this: ‘where parents of a child are separated and the child is in the day-to-day care of one of them, it is almost always in the interests of the child that he or she should have contact with the other parent’.2 It is thus not surprising that in December, nearly a year after the High Court’s ruling, the Court of Appeal overturned the decision in what has been described as a victory for the LGBTQ+ community. The Court emphasized that in deciding on the child’s best interests ‘the function of the judge… is to act as the "judicial reasonable parent,"… the reasonable man or woman is receptive to change, broadminded, tolerant, easy-going and slow to condemn’.3 It thus stressed that it was important that the adults’ refusal to change their beliefs and to shelter children from the transgender community should not make the courts less willing to intervene when determining what is in the child’s best interests.4 The matter has now been sent back to the family court to be reheard.

Several remarks can be made in regards to this saga. Firstly, it is interesting to consider how far discretion in the law allows for prejudice. In the case of J v B the transgender parent was applying for a contact order. In private family law proceedings such as this, whether or not an order is made is judged in line with the welfare principle, as outlined in s1(1) CA 1989. This principle provides that when a court determines questions relating to the upbringing of a child ‘the child’s welfare shall be the court’s paramount consideration’.5 There is thus a wide amount of discretion in the law and this arguably heightens the impact of (traditionally) conservative judicial prejudices. It could be argued that the case of J v B itself shows this because in the High Court Jackson J held that direct contact must be refused, this judgement flowing from the fact that the parent seeking contact was transgender. He justified this ruling by saying that no direct contact was best in line with the child’s welfare because if direct contact was granted the children risked being ostracized from the community.6 However, it should be pointed out that having rigid rules (and so less discretion) would not solve the problem of prejudicial views being allowed to permeate the law, as such views are almost always a product of social attitudes. It follows that having a rule-based approach would merely place these prejudices in writing and indeed make them even more concrete! Moreover, in the particular case of J v B it should be noted that Jackson J was at pains to stress that the ‘outcome is not a failure to uphold transgender rights, still less a “win” for the community, but the upholding of the rights of the children to have the least harmful outcome in a situation not of their making’.7

This latter points leads me to the next issue that this judicial episode raises: the more general consideration of to what extent we should accept religious rights that come into conflict with social attitudes in secular spaces. I would argue that we should see religious rights as a subset of human rights. Therefore religious rights should not necessarily trump other important human rights – there is nothing liberal about tolerating illiberal practices. Moreover, it is important to distinguish personal beliefs that dictate an individual’s own way of life from beliefs that not only dictate an individual’s own way of life, but also the lives of others. It follows that although someone cannot, for example, be stopped from holding a belief that disagrees with the institution of same-sex marriage, this belief should not affect anyone else’s right to marriage equality, should they so wish. Indeed interestingly enough this debate taps into the controversy over Tim Farron’s comments regarding gay sex, which has recently flared up due to his recent comments on Christian Radio that he had been “foolish and wrong” to claim that he did not believe that gay sex was a sin.8 Although Tim Farron makes the point, as just outlined in this article, that there is a difference between holding a belief and holding a belief and enforcing it on others - "There are some who just can't comprehend that somebody can have really strong convictions and be a Bible-believing Christian on the one hand and at the same time really passionately believing in people's rights to make their own choices, which essentially is what liberalism is"9 – the outrage following Farron’s stance on this issue is justified for at least two reasons. Firstly, his Christian beliefs have in fact affected his voting record: in May 2013 he abstained from a vote on the third reading of the Same Sex Marriage Bill. Secondly, there is nothing wrong with calling out such views; religious rights and LGBTQ+ rights are not inevitably opposed.

  1. J v B (Ultra‐Orthodox Judaism: Transgender) [2017] EWFC 4
  2. Re O (A Minor) (Contact: Indirect Contact) [1996] 1 FCR 317, [323]
  3. In the Matter of M (Children)[2017] EWCA Civ 2164, para 60
  4. [2017] EWCA Civ 2164, para 64
  5. CA 1989, s1(1)
  6. [2017] EWFC 4, para 187
  7. [2017] EWFC 4, para 189