Sitting in the Court of Appeal listening to the one day appeal on the High Court decision of J v B was a surreal experience. The case involved a transgender father who had left the insular ultra-Orthodox North Manchester community, and was now living as a woman. She sought access to, but not custody of, her 5 children. The judgement in the High Court was that it would be in the children’s best interest if they did not have any direct contact with their father due to the high risk of ostracisation and shunning from the community which would apparently only arise if the children actually saw their father. The High Court judgement determined that the father could write letters to the children, and that the children should be educated about why their father left and what it means to be transgender, but ruled out access.
The Appeal Court judges — Sir James Munby, Lady Justice Arden and Lord Justice Singh raised many interesting questions in a case that highlighted the tensions between freedom of religious belief and equality law. Whilst the father’s barrister, Alison Ball QC reiterated her view that the shunning was merely a threat that would in fact never materialise, the judges seemed more interested in whether a matter of Jewish law (in this case, the biblical prohibition on cross-dressing as set out in Deuteronomy 22:5) could determine the outcome in a civil court. There was also some discussion by the judges around whether Jewish law mandated ostracisation of those who did not keep its rules; and how this might interact with UK law if it turned out that such behaviour which amounted to illegal discrimination.
Sir James Munby quoted from the infamous JFS admissions case (which he himself had heard in the High Court, finding in favour of JFS, before this was later overturned by the Court of Appeal and the Supreme Court), stating that whilst a religious community was entitled to sincerely hold whatever religious views it wanted to, that did not mean that a secular court decision was bound by the consequences of these beliefs, particularly if these religious beliefs conflicted with UK law.
Another good question from the judges: Orthodox Jews are law-abiding citizens. Perhaps if it were simply explained to them that discrimination against transgender people is contrary to UK law, they wouldn’t shun the children?
The judges also questioned what exactly was meant by the Jewish “community”. How to define the Jewish community that is directing the shunning against children? Does this refer to a group of rabbis, or synagogues and schools? And who directs the community members and sets the social rules? This question was addressed to the QC for J’s children, but she didn’t know the answer. The “rent-a-crowd” Haredim in the public gallery managed to stop saying Tehillim for long enough to scribble a suggestion that was passed to the QC to tell the judges. They felt it is a collection of people, shuls and schools that take direction from specific rabbis.
I’d like to know if this is the definitive answer, ideally from our esteemed rabbis, starting with the Office of the Chief Rabbi, and due to the location of the case, the Manchester Beth Din as well. What do they think defines a Jewish community? Who tells the North Manchester Haredi community members how to behave and how to live according to Jewish law? Perhaps these community leaders could send a written submission to the Court of Appeal Judges to clarify the definition of a Jewish community. And while they are writing a submission perhaps they could also clarify the halakhic position on shunning children.
This article first appeared in the Jewish News