State vs. Family: The Tyranny of the "Emerging Orthodoxy"

 
 

State agencies used to intervene in family life only when it was in the “best interests of the child.” Now, however, their power is being exercised to advance an ideological agenda.

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As broadcaster and author René Carayol once said, “Not everything old is bad, and not everything new is shiny and good.” Although he was speaking to an audience of business leaders, we would all do well to heed his words. We should not blindly accept every latest fashion but rather combine the best of old and new.

Nowhere is this wisdom needed more than in the intersection of culture and law regarding family rights. On this battleground, those who advance the new secular worldview have fought to undermine traditional values using the most illiberal of tactics.

In recent years, the rise of sexual identity rights has resulted in conflict with Judeo-Christian principles on sexual ethics; this conflict has largely played out in the employment and services sector of the economy but is moving to the family. There is now a direct challenge to the Christian worldview of parental rights, particularly the right to impart Christian sexual ethics to one’s own children. There has been a remarkable reversal in the concept of public good in our societies.

Consider three recent cases in the United Kingdom. The first is the case of a mother who believes her child to be transgender. The second is a refusal by parents to acquiesce in their daughter’s desire to change her sex. And the third is a refusal by a public authority even to consider a married couple for adoption because of the couple’s belief that all children should have both a mother and a father. As these cases demonstrate, the new ideology of sex, gender, and family has some powerful allies, including government agencies that have the statutory powers to expand and enforce this secular worldview.

Social Services Bow to Emerging Orthodoxy

A recent example of this is the 2016 case of Re J (A Minor). In that case, the judge, Mr. Justice Hayden, held that a mother’s insistence that her four-year-old boy was “gender variant” was causing the child significant harm. Furthermore, the social services were found to be complicit in allowing the mother to continue with behavior such as dressing the child entirely as a girl. The judge held that the statutory authorities involved had “consistently failed” to take appropriate intervention, writing in his judgment:

It is striking that the Local Authority had moved into wholesale acceptance that J should be regarded as a girl. Once again, I make no apology for repeating the fact that J was still only 4 years of age. The conclusions of the report speak of J by use of the feminine pronoun.

Although a large number of professionals endorsed the view that J was now presenting as a girl, the judge found otherwise:

Transgender equality has received a great deal of attention in recent times. I believe that in this case the profile and sensitivity of the matters raised by the mother blinded a number of professionals from applying their training, skills and, it has to be said, common sense. They failed properly to investigate M’s assertions, in part I suspect, because they did not wish to appear to be challenging an emerging orthodoxy in such a high profile issue.

I salute this judge for his insight and common sense. In my legal experience, I know that a judgment like this is both brave and rare. In this case, the judge has succinctly and accurately highlighted the damage that can be done to the most vulnerable people in society when statutory agencies sacrifice their primary duty of care so as to comply with what Justice Hayden calls the “emerging orthodoxy.”

This case is striking not only because of the age of the child, but also because of the number of professionals who endorsed this new socio-medical phenomenon of gender dysphoria, and the finding by the judge that they did so because they were fearful of challenging this latest human rights orthodoxy.

Parental Rights Seen as Undermining the Human Rights of the Child

Another recent case involves a girl of fourteen who wants to live as a boy. Social workers addressed her with a boy’s name and with male pronouns in a report that identified the various human rights the girl could cite as reasons that she should be treated as a boy. Her parents’ disagreement with how to handle the situation carried no weight. And it wasn’t just social services: teachers at the girl’s school called her by a boy’s name and referred to her with male pronouns. The parents’ pleas that they know what is best for the child they have raised for fourteen years were considered discriminatory.

Her parents, however, believe that they are acting in the best interests of their child by asking that these momentous decisions regarding their child’s sexual identity be delayed until adulthood. The parents remain fearful that their child will be taken away from them. They know that their refusal to support their daughter’s desire to change her sex can, at any moment, be designated by the public authority as a child protection issue because the parents can be deemed to be harming their child psychologically. Yet, because of their strong Christian beliefs about identity, they recognize that their daughter needs help and are seeking to provide that in the most appropriate way.

In this case, we observe how parental rights have been undermined by the public authorities. As in Re J, the assertion by a child of a different emotional and psychological identity from his or her biological sex is accepted by the social services and school without any deference to the parents. The authorities have made it clear that they view parental rights as an obstacle to protecting the “right” of the child to identify as whatever gender she chooses. The child, therefore, identifies with the public authorities who support and enforce her position in opposition to her parents. This has created an inverted power relationship between parent and child.

The mother of the child has reportedly said:

The rights of parents in the UK are being eroded, especially those who have traditional Christian values. It is leaving parents to feel fearful, vulnerable and intimidated . . . We were told by the psychiatrist that CAHMS [Child and Adolescent Mental Health Services] said that if the name change does not happen then she would be a high suicide risk.

The parents are in a very difficult legal situation. The European Convention on Human Rights law protects the right of self-identity and lifestyle choices. Consequently, the parents could be deemed to be violating the Article 8 (privacy) and Article 14 (non-discrimination) Convention Rights of their own child. In Goucha v. Portugal, the European Court on Human Rights held “that sexual orientation is a profound part of a person’s identity and that gender and sexual orientation are two distinctive and intimate characteristics” that should be protected under Article 8.

Further, the public authorities have the financial and legal resources to ensure that their views have primacy over the parental viewpoint. The public bodies have access to a large number of professionals (educators, child social workers, doctors, psychologists) who may or may not use their common sense and are likely to follow the emerging orthodoxy. The parents will be in a very vulnerable position unless they have resources to consult independent experts or are fortunate enough to have their case heard by a reasonable judge like Mr. Justice Hayden.

Following intervention by lawyers affiliated with the Christian Legal Centre, social services may now reconsider their position. It is to be hoped that the child can receive the appropriate care that she clearly needs.

Adoption and Traditional Marriage

In a final case that has been extensively reported in the British press, a husband and wife were deemed unsuitable to be considered as potential adopters because of their belief that a child needed a “mummy and daddy.” The parents were fostering two young children, and it was accepted by all that they had provided a loving and warm home for the children, who were progressing well. The parents expressed concern that the children were to be adopted by a same-sex male couple. They requested that they be considered as adoptive parents instead.

The letter they received in response stated:

having heard that the prospective adopters were a same-sex couple you shared some opinions in relation to this proposed placement which are concerning and which would not enable the service to progress an inquiry to be assessed as prospective adopters, as these views could be detrimental to the long-term needs of the children . . .

The authorities were, in effect, averring that if the couple adopted the children and the children ended up being homosexual, this could cause difficulties. The couple’s statement that they would love their children however they decided to live their lives was ignored. The couple was penalized for expressing the lawful view that children should have a mother and father. This view was opposed by the public authorities under the new emerging orthodoxy. The implication is that Christian views could be detrimental to the long-term needs of the children. On this basis, authorities could soon consider Christianity itself as a reason to disqualify couples from adopting children.

Thankfully, this case has a happy ending. The parents, with the help of the Christian Legal Centre, have been informed that the council made a mistake by refusing to consider their application to adopt and that an assessment will begin to consider whether they can be approved to adopt the children.

Erasing the Boundary between Family and State

These cases raise profound legal and societal questions both in the United Kingdom and in the United States. At the heart is the definition of “harm” to a child.

Legally, the term “harm” has traditionally focused on neglect or ill treatment of a child by particularly unfit families. The state is now redefining “harm” to include a whole array of new sexual and lifestyle rights. This expanding definition is eroding the boundary between family and state, and it enables state intervention in family life in all kinds of circumstances. In other words, it represents a significant intrusion into the sacred field of family and private life.

The proponents of the new orthodoxy have a distinct conception of morality. One of its most distinct features is that public authorities expect all private citizens to conform their lives to the moral framework accepted and promulgated by the state. This fundamentally illiberal concept is backed by the statutory authorities and increasingly dictates how people can run their businesses, express their convictions at work, and raise their children. Nowhere is the clash more apparent than in the field of sexual ethics and religious conviction. Expanding the definition of harm to include dissent from progressive orthodoxy on sexuality has given the state licence to interfere in family life and to punish those who do not adhere to the new ideology.

State powers are based on and traditionally limited to being used in the “best interests of the child,” but we have now seen a number of examples where these powers are, in fact, exercised in the best interests of new ideological norms. Parents who do not facilitate the wishes of a young child to be treated as a member of the opposite sex may well be subject to state intervention on grounds that they are “harming” their child.

While many of the issues relating to transgenderism are likely to be similar to issues of sexual orientation, transgenderism takes the conflict a stage further. In children, parents can uphold a non-discriminatory prohibition on all sexual activity. The issue cannot be so easily postponed or dealt with privately when children identify as transgender. Children seek to dress as members of the opposite sex, use different toilets, and be called by a name different from their biological sex. The conflict with Christian belief can only become open and more aggressive.

The truth is that all parents lead, guide, and persuade their children as they fulfill one of the primary callings of parenthood: that is, to impart a moral code to their children. But the new illiberal government orthodoxy, and the zeal of those who promote it, has caused our statutory authorities to become dysfunctional. Publicly funded agencies often appear to have no regard for true liberalism or the rights of an individual. Rather they have become proselytizing agents that seek to advance their own fixed agenda. The only feasible way forward is to strengthen parental rights. The alternative is not utopia, but a kind, dogmatic, and infantile chaos.

Paul Diamond is a practicing barrister and Standing Counsel to the Christian Legal Centre.

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