Last week, when I read the news story about a 7 year old being removed from their mother’s care, I felt scared and upset. This reaction was shared by many families of transgender children throughout the UK. I knew nothing about this specific case or this specific child. Other people may have read the news and unequivocally thought the judgement correct, or otherwise, as in the words of a colleague, thought it “sounds complicated… who can know what’s right and wrong here”. Families of transgender children instead responded with shock, fear, upset – I was left with a deep worry that this could be a major miscarriage of justice, which holds serious implications for my family.
Let me give you 10 reasons why my reaction may have differed from the reaction of people with less knowledge of this subject.
Before I start, let me give one opinion (fact) on which the below relies – transgender children exist – that means, in its simplest form, there are children with a strong conviction and identity that they are a gender other than the one assigned at birth. Anyone who cannot accept this (or is dogmatically unwilling to learn about this) may as well look away now. For the rest of you, I am confident in the conviction that transgender children exist, because my own daughter is one of them. But on to those 10 reasons:
1. Gender identity is clearly at the crux of this case.
There are a couple of references to the mother’s general parenting and mental health, but the vast majority of the case (and judgement, and accompanying press release) focuses on issues relating to the child’s gender identity. A case resting on a child’s gender identity is of very significant importance for a family of any gender questioning or transgender child. In such a case, having a judge who is ill-informed, ignorant or transphobic is not a moot point – it is a critical concern for anyone interested in justice.
2. Experience of those in authority tells me even senior figures can be ill-informed, ignorant or transphobic.
I have had plenty of experience of this, of meeting intelligent, experienced professionals who are ignorant of, or confused about transgender children.
My GP had never heard of transgender children when we first approached him, and was totally disbelieving that we had a child, registered as a boy, who insisted they were a girl – only through knowing our legal right to a referral to the UK’s only specialist children’s Gender Identity Centre in London, and showing them a printed copy of the NHS guidance on gender dysphoria, were we able to persuade our GP to give us a referral.
When my daughter was in a children’s ward in our hospital for a routine operation, the senior children’s nurse was astonished to meet my daughter, and asked my young child (in front of other families) when she had had ‘the operation’ (for anyone who is not aware, i) there is not one operation, ii) surgery is not important to many transgender people and iii) surgical operations are not an option until age 18). So yes, I believe that even a senior court judge could easily be ignorant, misinformed or transphobic.
3. My own experience tells me that even supposedly intelligent, progressive minded people can be ill-informed, ignorant and quietly transphobic.
Before I came to terms with having a transgender child (and many parents describe this acceptance as a process close to grief, so traumatic is it to many parents), I knew very little about the subject. I didn’t know any transgender people, let alone transgender children. I considered myself generally progressive and kind, but a lifetime of badly informed media pieces had shaped my thinking.
Growing up I was a tom boy – I remember desperately wanting a blue BMX one birthday and crying over a pink girly one. I was frustrated from being barred from playing football just for being a girl. I considered myself a feminist (I still do after a brief period when the trans-hate from a tiny minority of people using that title made me doubt).
I had absorbed the idea of ‘gender as a social construct’. Popular press articles with transwomen (I don’t remember reading articles about transmen) often seemed to peddle a very backward message of boys knowing they were in fact girls due to liking dolls and princesses. This made me feel sad, both for boys who felt like boys and liked dolls and princesses, and for girls like myself, whose definition of girl-ness was being implicitly limited to those same dolls and princesses that I hated as a girl. I was myself confused and ignorant and quietly transphobic. I have learnt a lot from my daughter. So if I myself was once ignorant and transphobic, I am aware that of course other professionals, including judges can be.
If it is possible for a judge to be ignorant and transphobic, and if having a judge who is not ignorant or transphobic is of critical importance in a case hinging on gender identity, we now turn to the question of whether this judgement and the statements by the judge, provide any clues:
4. Toy choice does not equal gender identity.
We will start with the easiest one. No-one would say that a girl playing with super-heroes or cars or other traditionally male toys is therefore a boy. (Sometimes things appear in the press of boys being ‘defined’ as transgender because they like ‘girls’ toys. This is emphatically not the case). If a ‘normal’ girl can play with super-heroes without being defined as actually a boy, then it follows that a transgender girl can play with super-heroes without being a boy too.
I do not know the child in question. But the judge stating the child is clearly a boy as they have male interests and like Spongebob and super-heroes is extremely backward, and shows a very naïve understanding of gender identity. In the past, some transgender people have used the fact they happen to like certain stereotypically male or female toys or activities as part of their narrative, to justify and explain to others their gender identity.
In the past transgender people were forced to define themselves as conforming to stereotypical gender roles and preferences in order to access health care. Nowadays, transgender people are more likely to refuse to simplify their narrative along such gender segregated lines. My transgender daughter likes lego, football, dancing, running, reading, spiderman, harry potter, frozen. Her toys and interests do not define who she is. When my daughter was very young and insisting that she was a girl I remember clearly one conversation:
Child: Mummy, I am a girl
Me: I really don’t understand why you keep saying that you want to be a girl. Boys and girls can play with the same toys. You can already play with any toys you want to play with. What is the problem? (me clutching at straws) I guess we don’t have any dolls in the house – boys can play with dolls too you know, would you like me to buy you a doll?
Child: But mummy I don’t like dolls. I am a girl. Can I have a spiderman?
I have learnt a lot. And one of those things is, toy preference does not define gender identity.
5. Young children can be transgender.
The judge makes a number of references expressing disbelief at a young child having a gender identity. In one section he dramatically reminds the reader that the child at this age was 4.
Many transgender people state they knew their gender identity at a young age. No-one questions it when most children state at a young age “I’m a boy” or “I’m a girl”. They only question children’s knowledge of themselves when the child states an identity that differs from the gender assigned at birth. My child has stated “I’m a girl” since they had just turned 3 and has never wavered from this (this does not mean that I am fixed on this – at the moment she has a very narrow view of binary gender – I would not be surprised if her identity becomes more nuanced or complex as she gets older, and if she one days tells me “I’m a boy”, or “I’m not sure” or any variation, my child will have my full love and support then, just as they will wherever they end up).
Transgender (inclusive of non-binary) people have always existed, in countries and societies across the world. It is not a new phenomenon. The judge casts considerable doubt on there being any possibility of a 4 or 7 year old being transgender, a view that significantly undermines his ability to be a fair judge in this case.
6. It is not easy to persuade a child to a gender identity against their wishes.
Part of this case hinges on the child being forced to dress, identify, behave and act like a girl against their wishes. I spent a considerable amount of time and effort trying to get my child to identify as a boy. Despite their obvious sadness and feeling of being rejected by me, their own mother, I tried this for over a year – such was my own ignorance and fear of having a transgender child.
Many other parents of transgender children unsuccessfully try the same, often resulting in our children becoming sad, withdrawn, depressed, rejected. No loving parent would choose this difficult path for our child, and yet all parents of transgender children face the accusation that we as parents ‘caused’ this in our child.
A recent Lancet (highly respected medical journal) article concluded that “to date, research has established no clear correlations between parenting and gender incongruence” a conclusion the judge does not mention anywhere in this case. In the recent past transgender people were treated for delusion with ‘conversion therapy’ – medical professionals have concluded that this treatment is not only unethical, but ineffective. (http://www.thelancet.com/journals/lancet/article/PIIS0140-6736(16)00683-8/fulltext)
I do not know the child, and I cannot say whether the child is really transgender (see point 8), but the default assumption that parents (and usually mothers) are all too often blamed for gender variant or transgender children is an ingrained prejudice that all our families have to face. This judgement jumps quickly on the assumption that the child presenting as a girl is something created by the mother, with scant evidence for this claim. This makes me very wary of this judgement.
7. Being transgender is not a mental health issue.
There is a long history in the West of pathologising transgender people as delusional or in need of mental health treatment. This view has been rejected by the medical establishment, but this flawed view of being transgender being a mental health condition persists in the media.
Nowadays, even the World Health Organisation has decided to reclassify transgender issues taking them outside of being classified as a mental health disorder (scheduled for removal from ICD 2018). Despite this, the judge strongly criticises the mother for not engaging the child with the Children and Adolescent Mental Health Service CAMHS. For those of you with no deep understanding, this criticism may seem valid. For those of us with experience, it is not.
The appropriate NHS service to support gender questioning and transgender children is the GIDS/Tavistock centre. CAMHS can provide additional support for children who have distinct mental health issues in addition to gender issues, eg for teenagers who are self-harming. CAMHS do not treat children for gender identity issues, and often are not equipped to deal with young children – they refer such children on to the GIDS/Tavistock and discharge them (or refuse to engage with them in the first place if they have ‘just’ gender identity issues).
Young transgender children without other mental health issues are not normally seen by CAMHS – my transgender daughter is not engaged with CAMHS as she is a happy child with no mental health issues (just gender identity issues). This is not controversial. The judge is either grossly under-informed, or conveniently misrepresenting this.
8. Gender identity is not ‘diagnosed’.
In several areas of the judgement, the judge touches on the question of whether or not the child had been diagnosed as transgender, or whether the mother had just made up (lied about) this diagnosis. This shows a significant misunderstanding of gender identity.
While there is increasing scientific agreement that being transgender is likely to be physiological rather than mental (the Lancet found “compelling evidence that the neurobiology of the brain is important in predisposing an individual to an incongruent gender identity”) “there is no test for being transgender”. (http://www.thelancet.com/series/transgender-health)
Many countries have now moved to a self-identification system wherein a transgender person can legally adopt the gender they identify as simply by saying ‘I am a girl/woman’ or ‘I am a boy/man’ without the need for a psychologist to validate this self-view. The Lancet similarly concluded “the only valid route to understanding a person’s gender identity is to listen to them”. (http://www.thelancet.com/journals/lancet/article/PIIS0140-6736(16)00683-8/fulltext)
In the UK in many spheres gender identity is moving towards self-definition. For GP registration a person needs to simply state that they identify as a girl/woman. For schools new guidance from the Department of Education states that in the rare cases where there is uncertainty on which gender marker to use, the school should use the child/parent’s preference. (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/554478/School-census-2016-to-2017-guide-version-1.3.pdf)
To change a gender marker on a passport a letter is needed from a medical professional stating that the person identifies as a girl/woman or boy/man and is likely to continue to do so. These definitions are not an externally imposed ‘diagnosis’, but an acknowledgement of what the individual themselves believes and feels.
To suggest that there is some medical test or diagnosis, and that the child’s view (usually presented by the parent) is invalid or fraudulent, is grossly misrepresenting the situation. Of course things are complicated when parents don’t agree (as in this case) or when there is disagreement between the child and their parents (as in the recent case with a 14 year old). Of course there is the possibility that in a very rare case a parent could misrepresent their child’s view. But the nuances of gender identity ‘diagnosis’ do not come across clearly in this judgement, and I fear the judge does not understand this issue at all.
9. Transphobic hate crime is a crime.
In recent years the police have made some significant steps in supporting and protecting the rights of transgender people. Transgender is a protected characteristic under law, and is protected whether the abused individual is actually transgender, or is perceived as being transgender – so in this case, where the abuse came from a perception of being transgender, the abuse is a hate crime regardless of whether or not the child is actually transgender.
The judge shows total lack of understanding of the difficulties of being a transgender person (or a parent supporting a transgender child) in a transphobic society. The judge shows total lack of empathy for the child and the mother in the coverage of hate crime incidents where others tried to pull the child’s trousers down. Abuse from neighbours is similarly brushed aside.
A school who were unwilling to accept the child are not in any way criticised. Hate crime and transphobic bulling towards transgender children, both from family, neighbours, schools, and professionals including social workers and the police is a real phenomenon.
The Judge dismissed the suggestion that staff at the Catholic school “were religiously or culturally opposed to gender dysphoria” as “crass cultural and religious stereotyping”. While Catholic teaching on transgender issues is too complex an issue to tackle here, assuming schools cannot be prejudiced is naïve in the extreme when only recently the Bishop of Shrewsbury “warned Catholic schools and colleges of the dangers of the “ideology of gender” that is spreading throughout the western world”. http://www.catholicherald.co.uk/news/2016/10/06/bishop-urges-catholic-teachers-to-resist-ideology-of-gender/.
The judge brushes any such concerns under the carpet, again showing zero awareness of the battles the families of transgender children face every day.
10. It is not just about this child.
This is a deeply sad case. My heart goes out to that poor child. Regardless of the details of this case, this child has been very let down by the whole system. But this judgement is not just about this child. Let’s be very clear. The judge, the judgement and the accompanying press coverage has not focused on this being one sad case of a mother who was deemed unsuitable to look after her child for a combination of complex reasons one of which relates to gender identity. The case, the judgement and the press coverage has focused squarely on gender identity, a judgement on whether or not this child is transgender and whether or not the mother behaved appropriately (or abusively) in regard to their gender identity.
In making his judgement and highly public announcement, the judge gave zero care for the well being of transgender children like mine. He did not state clearly that transgender children do exist and that there is evidence that supporting transgender children is linked to better outcomes for them. No. He linked the mother’s support for their child to accusations of ‘child abuse’ and causing significant emotional damage (omitting any mention of the significant evidence of emotional damage caused by ignoring and suppressing a child’s gender identity).
The judge criticises social services, GPs and schools for being tied to a ‘transgender ideology’. He asks the Director of Child Services to review the case and draw wider conclusions. He has gone far beyond the normal remit of one child custody battle to infringe on the already very vulnerable rights of my child. He has made it acceptable for people to provide anonymous complaints to social services purely for parents ‘allowing’ their children to dress or identify as a different gender. He has made it essential for social services to severely critique and investigate all such anonymous reports, even though in this case a number of social workers reviewed the case and concluded the mother was supporting appropriately.
The judge has created a potential nightmare for my child, our family, and the families of many other transgender children who are trying our very best to look after our children in already exceptionally difficult circumstances.
Transgender children’s right to exist is protected under the Equality Act, the one piece of protection that families like mine cling to. This judge, through ignorance or transphobia, is threatening this legal protection. That is why families like mine are deeply unsettled, saddened and afraid after this ruling.