Cloisters: Equality and Human Rights in Practice
This is part two of a two-part series on trans rights from leading equality and human rights barristers at Cloisters. Part one explores toilets and gender identity.
Toilets have not been the only battleground. In fact, hardly a week goes by without a news story about transgender and gender identity issues.
On 21 October 2016, a ruling in the Family Division was widely reported. Mr Justice Hayden made a Care Order in respect of a 7-year old boy (known as “J”), concluding that his mother had caused him significant emotional harm by making him live as a girl. The Judge criticised social workers who had been responsible for J’s welfare for their “wholesale acceptance that the boy should be regarded as a girl”. He recommended the local authority involved to undertake a review of the social work response to the case.
The case was a difficult and complex one, as is clear from the Judge’s observation that the mother was “absolutely convinced that J perceived himself as a girl” and that his “overwhelming impression” was that she “believes herself to be fighting for her son’s right to express himself as a girl”.
However, the Judge concluded that, whilst J’s mother “offered an impressive, intense and highly articulate evaluation of the problems faced by children with gender dysphoria”, nevertheless, “she conveyed no sense of J’s personality, temperament or enthusiasms, notwithstanding frequently being encouraged to do so. Repeatedly, she struck me as a professional witness giving evidence about somebody else’s child”.
Subsequent to an interim Hearing (after which J had been temporarily removed into his father’s care) and before the Final care hearing, it was recorded by the Judge that J had settled down well, and flourished away from the home education which had been provided by his mother. His new school reported there had been “no gender issues” and that J had started showing interest in “boys’ games and toys”.
The Judge concluded that the mother had caused her son significant emotional harm, above all by her active determination that J should be a girl:
“I find that she has overborne his will and deprived him of his fundamental right to exercise his autonomy in its most basic way. Whether he chooses to present as a girl or not, ought to be his choice. This is not a case about gender dysphoria, rather it is about a mother who has developed a belief structure which she has imposed upon her child.”
But the Judge’s experience in the Family Division had left him with little doubt that young children may identify strongly with the opposite gender:
“Such children can experience rejection and abuse arising from ignorance both on a personal and institutional level….It is important that such children are listened to and their views afforded respect but, to my mind, they are ill-served by premature labelling. What they require…is the opportunity to develop their identity in whichever way it evolves. J. was not only deprived of that space and opportunity by his mother, he was pressed into a gender identification that had far more to do with his mother’s needs and little, if anything, to do with his own.”
The Judge rightly emphasised that proper respect should be afforded to a child’s own sense of identity, observing that children are not well-served by “premature labelling”. There are some who lobby for earlier clinical and legal intervention to enable children to reassign their gender. But others might view the Judge’s comment as pertinent, particularly at a time when schools and, indeed, society more widely are being encouraged to take a flexible and child-centred approach to questions of gender identity; and early “labelling” may not assist such an approach.
Perhaps, though, it was an awareness that issues of gender identity are not always properly respected that led social workers in the case of “J” not to question the mother’s assertions about her son more carefully? It may well have been the character and sensitivity of the transgender issues raised by J’s mother which apparently blinded a number of professionals from applying their training, skills and common sense. In other words, according to the Judge, they failed properly to investigate the mother’s assertions, in part because they did not wish to appear to be challenging an emerging and increasingly prevalent orthodoxy (generally to be applauded) that gender identity demands respect.
Last month’s bathroom battles and cases such as that of “J” may well indicate that – as a society – we do not yet always feel comfortable about gender and gender identity: some of us do not find it as easy as we should to respect and accept each individual’s own experience of gender; whilst others are reluctant to question or probe for fear of being accused of not taking trans issues seriously. There is a balance to be struck.