It appears Norman Baker’s arrival at the Home Office in the latest reshuffle has come just in time, given the latest policy to arrive on the public’s doormat. Notably, they got this one out before he had a chance to get his feet under the desk, and in the gap just after Jeremy Browne left. I doubt that’s a coincidence. The policy is one called “Sexual Risk Orders” and I’ll give you the government’s own line on what they involve… (Emphasis mine)
Sexual Risk Orders can be applied to any individual who poses a risk of sexual harm in the UK or abroad, even if they have never been convicted.
In other words, you can have one of these orders slapped on you because the police don’t like you. The restrictions on the person who is unfortunate to receive such an order are quite severe. That’s particularly true in this day and age of the internet use clause as it’s not even possible to claim some benefits without internet access.
…a range of restrictions on individuals depending on the nature of the case, such as limiting their internet use, preventing them from being alone with a child under 16, or preventing travel abroad.
No doubt such an order, or having had such an order in the past, would show up on any checks for future employment as well. Finally, the “safeguards” against such an order are…
The Sexual Risk Order can be made if the police or NCA apply to a magistrates’ court regarding a person who poses a risk of sexual harm. It lasts a minimum of two years and has no maximum duration.
Not exactly encouraging. But unsurprising, given the groups who were consulted in constructing the orders:
There has also been consultation with front-line professionals including the police, the courts, and the Child Exploitation and Online Protection Centre.
And it should go without saying that no government press release with undertones of “WON’T SOMEONE THINK OF THE CHILDREN!” can end without a ministerial quote alone the lines of “We’re already far more draconian than anyone else, but we won’t stop until you have no freedom left”.
The UK has some of the toughest powers in the world to deal with sex offenders. Today, we are going even further by giving police and National Crime Agency officers the power to place greater restrictions on any person they judge to be a risk.
It probably goes without saying that likely targets of such orders include sex workers, those involved in consensual BDSM and anyone trans. (Particularly in the wake of McNally – imagine a “You must out yourself to anyone you meet” order) This would apply even if the activities you engage in would not be considered unlawful by a jury, because the police only need to convince a magistrate you might pose a risk.
Basically, round up the usual suspects.
The motion calling for internet filtering was defeated overwhelmingly via a reference back earlier today. I was not called to speak – apparently, there was a “huge stack” of cards put in to speak, “most on one side of the debate”.
But if I had been called to speak, here’s what I would have said.
I am what many of you might regard as a geek. I have worked in IT for many years, including over a decade of experience working for Internet Service Providers.
But that is not why I am up here today.
I am also a parent. I have three school-aged children and I am opposed to this motion because it does not do what it says on the tin. Where filtering is in widespread use, we already see issues with overly aggressive blocking. Undesirable content is in the eye of the beholder, and to avoid complaints companies will block first and ask questions later.
We see blocking of support sites for mental health issues such as anorexia and body image issues.
Blocking of support sites for sexuality and gender issues.
Blocking of support sites for bullying.
The British Library even blocks Hamlet on it’s own wireless internet access, because it contains violent content. It’s simply not possible to get this right. The people who are pushing for the filters will be campaigning to make them stricter. Imagine the headlines if just one web site the Daily Mail deem to be questionable slipped through the ‘net.
There is no appeal if you are blocked, because the decision on what to block is left to private companies. Do we want private corporations censoring our internet? Who decides what sites are acceptable? The logical extension of such a policy is a British Board of Internet Censorship, a terribly draconian and unwelcome idea.
Senior Talk Talk staff once came to talk to me, when I had expressed concern about their filters. They assured me that it was not possible to bypass their filters and offered a trial – but they never made good on their promise to let us test it. Why not?
Software exists to bypass such filters, that’s why. Tor is one such mechanism and is part-funded by the US Government to allow people to bypass filtering, for the benefit of those living in oppressive regimes…!
As a parent, I do worry about my children online. But I am more worried about cyber-bullying and stalking, which filtering does nothing to prevent. Reliance on technology gives a false sense of security, something we must avoid. The best solution all round is Education, Education, Education – of both parents and children.
And that’s a view with widespread support in the party. A Liberal Democrat Voice survey published in the last 24 hours shows that a whopping 81% of party do not support the form of filtering described in this motion.
There is an amendment to this motion, but it does not do enough to address these issues and I cannot support it. But we do want a policy, because we know this is an important issue. Conference, I would urge you to vote to refer this motion back so that these issues can be addressed properly and a new, more robust policy bought to a future conference.
But if that fails, please vote against the motion.
In terms of internal party discussion, one of the more controversial points at the current Liberal Democrat Conference is motion F17, “Protecting Children from Online Pornography“. This calls for opt-out filtering of the internet to protect children from “porn”, something I’m quite opposed to. It’s attracted criticism from mainstream internal groups as well as anti-internet-censorship campaigners – a conference update mailing from Liberal Reform supported calls to vote against this illiberal policy.
Thus was spawned the Talk Not Tech campaign against this motion. And in a survey out today, 81% of Liberal Democrat members agree: only 16% are for opt-out internet filters.
There is an amendment to the motion that would seem to support the most popular option, opt-in filters, but this amendment also calls for pop-up messages if you visit a “bad” site. (For some value of bad that usually includes news, support and political sites on issues surrounding mental health, sexuality and gender) A widely-supported motion that was more liberal in nature was unfortunately rejected by Federal Conference Committee.
As a result, we are asking for delegates to vote to refer the motion back. This is a little bit procedural, but we believe sends a better public message than rejecting the motion overall. We do want policy in this area, just not this policy.
If you are a voting representative, please head to the main hall for 5pm today (Sunday) for this important debate.
(The full breakdown of survey results: 16% opt-out filtering, 39% opt-in, 33% for education instead of filtering, 9% didn’t believe any change was needed, 2% don’t know)
It seems simple enough – a high profile campaigner gets some publicity and starts receiving some pretty horrible abuse online as a result. Twitter should therefore install a magic “report abuse” button that will make all this go away.
As with many simple solutions, it’s also wrong. And unfortunately not just slightly wrong but dangerously so for those most in need of protection.
The scale of the problem
What’s being asked for is a single button to report an abusive tweet, rather than the existing web form. However, one of the issues in this case was complaints that Twitter took too long to respond. I’m not clear on how having a button rather than a form that will inevitably attract more complaints, because it’s easier to click is supposed to speed things up.
There are over quarter of a million tweets per minute. If one in a hundred thousand tweets are abusive enough that someone clicks a button, that’s about three tweets every minute that need looking at.
If you need a quick response, you need someone at their desk 24 hours a day, 7 days a week. To allow for training, holidays and sick cover you need five full time employees for one person on shift at all times. Finally, assume that twitter are immensely generous by service provider standards and will dedicate 5% of their staff (20 people) to just handling abuse reported via this button. Four people on shift at any one time, dealing with three tweets a minute. Each person is having to evaluate an abusive tweet and come up with an appropriate response in 80 seconds if they do nothing else for their entire shift on duty, with generous assumptions about staffing levels and number of reported abusive tweets.
Oh, I’ve conveniently ignored all the problems associated with differing cultures and languages in use worldwide.
Unless you can somehow reduce the volume of complaints massively – to below one in a million tweets, giving a “generous” 5 minutes to assess each complaint with a very well funded department – this just doesn’t work.
Some sort of automated filtering is required, perhaps looking at volume of complaints as a threshold for action.
…and then it starts to backfire…
We’ve seen this before. A large portion of my timeline on twitter is taken up by members of marginalised communities that are subject to fairly routine, day to day abuse and know what works and what does not. People are quite vocal in their opposition to the twitter abuse button idea, because we know how it will pan out in practice.
The original article has Caroline Criado-Perez expressing concern about “victims without a high profile” getting help, whilst apparently ignoring those same victims saying this is a bad idea.
If you are a high profile individual with contacts, you can get lots of your followers to complain about tweets directed at you. This will attract enough attention that you get some response – but you could have just gone to the police in the first place if you have that much influence and it’s actionable abuse. (I have complained about death threats online in the past and getting much more than a crime reference number and a short appeasement visit from your local bobby is quite some achievement)
But the flip side of this is that it’s not just the good guys that can raise large numbers of reports. Any group seeking to silence an individual or community can just as easily rally the troops to try to get people kicked off. Either adopt a scatter-gun approach, complaining about anything and everything, or find one tweet that, taken out of context by someone with only a few minutes to assess the situation and take action, might be considered abusive.
Potentially, small groups or even one determined individual can create enough accounts to appear to amount to a significant number of unique complaints. In this age of near-ubiquitous free webmail, WiFi hotspots, 3G internet access and cyber cafes it’s impossible to conclusively tie multiple online identities together quickly without access to the kinds of legal resources only available to major police investigations.
How are genuine victims without a high profile supposed to generate enough noise to get any useful response, often to tweets that individually amount to little but constitute a clear pattern of abuse if you know the background? About the only option is to publicise the matter to try to make it high profile. But if you try this without already being popular, you’ll likely be accused of being one of those people engaging in the exact same silencing behavior I’ve just described. Which is what happened with the Burchill/Moore saga.
Unsurprisingly, Suzanne Moore is one of those backing the Twitter abuse button idea.
To tidy up a few loose ends, now that the Marriage (Same-Sex Couples) Act 2013 is an Act and not merely a Bill, here is a summary of its effects on the trans community.
None of this takes effect until the necessary procedures are put in place and the Secretary of State gives it the green light to go ahead – that’s not currently expected to happen for at least a year. As things stand, the first same-sex marriages will happen before the trans-related provisions are put into effect. It is also possible that procedures in practice will differ slightly from what’s intended from the legislation for practical or other reasons. We saw this happen with the Gender Recognition Act 2003.
Applying for a Gender Recognition Certificate
If you are applying for a Gender Recognition Certificate and you…
- Transitioned after 2008 & are not married or civil partnered then there is no change.
- Transitioned before 2008 & are married at the time of application, then you may be able to use the “Fast Track” procedure. The date is set at 6 years prior to the commencement of the relevant section and we don’t know when it will come into force yet, so it may end up being a cutoff date in 2009 if commencement doesn’t happen until 2015. The caveats for this are:
- Your marital status at the time of transition makes no difference. If you transitioned a decade ago but didn’t get a GRC because you were married but have subsequently been widowed, you can not use the Fast Track process. Conversely, you do not need to have been married at the time of transition and could get married for the sole purpose of obtaining a Fast Track GRC
- You must be “ordinarily resident” in Great Britain, i.e. excluding Northern Ireland. This appears to have been put in place to avoid complications with Northern Ireland but unfortunately rules out anyone born in this country and living abroad.
- “Fast Track” isn’t any faster from the Gender Recognition Panel’s point of view, it is a reduced documentary requirement – evidence of surgery or a diagnosis of gender dysphoria. I do not know if anyone tried this under the old Fast Track system when the GRA2003 first came into force, but it would appear that the surgery does not need to have been as an adult. This potentially allows someone with an intersex condition who is married to obtain Gender Recognition, something they were previously unable to do due to the lack of a diagnosis of gender dysphoria.
- The spousal veto still applies to fast track applications, regardless of how long you have been transitioned for.
- Are married at the time of application, then you can apply for Gender Recognition and remain married. Recognition would be subject to the Spousal Veto. If the spouse does not consent, then the old process applies which can take some time and is more expensive – apply for an Interim Gender Recognition Certificate, initiate annulment proceedings and hope your spouse isn’t looking to drag things out.
Interim GRCs do not grant any rights beyond the ability to apply for annulment of a marriage. It is likely quicker to apply for a normal divorce as that can be done without needing to wait to become eligible for a GRC. The intent of the Interim Gender Recognition Certificate was largely to allow couples to remain together after transition, as you cannot apply for a normal divorce if still living together.
- Are civil partnered then you need to convert your civil partnership to a marriage first, then apply for gender recognition as above. If you do not wish to convert to a marriage and remain together as a couple the only option is the Interim Gender Recognition Certificate and annul the Civil Partnership.
This is a consequence of mixed-sex civil partnerships being unavailable.
After obtaining Gender Recognition
- If you gave up your marriage and potentially pension rights under the old system by getting an Interim Gender Recognition Certificate and annulling the existing marriage/CP and were re-married/CPed, there is no mechanism for restoring that relationship or pensions.
- The situation for a wife of a trans woman (And only in that specific combination) is improved in the case where the trans person dies first and the wife is left with a survivors pension.
- Sections 12(h) of the Matrimonial Causes Act 1973 and the civil partnership equivalent, section 50(e) of the Civil Partnership Act 2004 remain in force – if you acquired gender recognition prior to getting married/civil partnered and your partner claims they did not know this, they may be able to get the marriage or civil partnership voided.
- The wording to be used in marriage ceremonies abd on marriage and birth certificates is, at this moment, unchanged. There is likely to be some further work in this area with post-enactment secondary legislation.
The below was sent to the BBC today at 23:18. It will be interesting to see how long it takes them to fix the article – or if they even bother, given they don’t usually cover trans issues at all. (I count exactly one direct reference since the start of June – the Cory Mathis bathroom case in the US. The remainder are references in passing, generally as part of defining what “LGBT” means and discussing pride events.
It seems you’re more likely to get referred to on BBC News for being a cis person making boots in large sizes or being a cis person getting an MBE for volunteering to help trans people than you are if you’re actually trans and campaigning on something. (The first story does mention a trans person in passing. It old-names them and uses some problematic and transphobic language presumably due to missing context in their quoting)
I am writing in relation to the article “Same-sex marriage set to enter law later this week” posted today on BBC News Online. It says:
“MPs decided not oppose a number of minor changes agreed by the House of Lords. Among these were protections for transgender couples, which will allow people to change sex and remain married.”
Ignoring the misleading statement about “opposing minor changes” (They were mostly, if not entirely, government amendments in the first place) the mention of amendments for transgender couples is incorrect. The provision to allow people to gain recognition of their gender whilst staying married, subject to a spousal veto, was part of the original bill. The Lords amendments altered the wording used to define the spousal veto and reintroduced a simplified version of gender recognition for those who transitioned many years ago.
The amendments would not allow anyone to gain gender recognition and remain married who would otherwise have been unable to do so.
Clearly the result of a poorly thought out clause rather than any deliberate attempt to ban the popular hot drinks, the following amendment (PDF link – page 15, New Clause 2) proposed to the Anti-social Behaviour, Crime and Policing Bill rather oversteps the mark. It appears those drafting the amendment did not realise that the scary sounding phrase “psychoactive drugs” includes caffeine.
To move the following Clause:—
‘(1) It is an offence for a person to supply, or offer to supply, a psychoactive
substance, including but not restricted to—
(a) a powder;
(b) a pill;
(c) a liquid; or
(d) a herbal substance with the appearance of cannabis
which he knows, or has reasonable cause to believe, to be so acting, that the substance is likely to be consumed by a person for the purpose of causing intoxication.
Maybe it’s an attempt to get back at Starbucks for tax dodging, because I’m pretty sure this amendment would put them, and many other similar chains, out of business…
The latest round of amendments to the Lords report stage of the bill are out, including government amendments which are almost certain to pass. There is nothing on the spousal veto yet which is not a good sign.
What has been included is reintroduction of the old Gender Recognition “Fast Track” process. As originally enacted back in 2004, this allowed people who had transitioned for a long time (6 years) an easier route to getting recognition. Rather than needing two reports from doctors, you only need one – either a diagnosis of gender dysphoria or evidence that you’ve had surgery to alter “sexual characteristics”. It was particularly important to those who transitioned many years prior but whose doctors were no longer practicing, meaning they could not get proper medical reports. It was however time-limited to applications for two years following the passage of the bill.
The gotcha with the reintroduced version is that you have to be married to take advantage of this. It doesn’t matter when you get married, so you could get married specifically for the purpose of getting Gender Recognition, as long as you transitioned six years ago. I can actually see this happening in some cases, it’s not just theoretical, as people get married for immigration reasons already.
If your partner has died before the bill passes or your marriage survived transition but you divorced later for other reasons you’re also out of luck and would have to use the standard process. Unless you remarry.
One could argue that this is actually incompatible with the Human Rights Act as it discriminates against single, divorced and widowed people, but I don’t know if such a claim would stand up in court. If anyone has about quarter of a million pounds to spare and wants a fast-track GRC, you could probably find out by taking this all the way to the European Court of Human Rights.
The six years requirement for a fast-track GRC is also bizarre. Firstly, it’s not six years full time, it’s six years full time prior to the passage of the act. So if you’re currently five and a half years post-transition you may be out of luck.
Secondly, and this is the most objectionable part, the spousal veto is explicitly included. So you can have married someone and stayed with them for six years post-transition or even married/civil partnered them after they transitioned, and the government is still asking you for permission for them to get legal recognition.
Whatever the actual intent, that just comes across as a deliberate attempt to be spiteful by the government.
It seems that the civil service spends much of it’s time trying to figure out ways of limiting any rights granted to trans folk as much as possible. The law in this country would be in a much better state if it spent that effort working towards equality instead.
Looking at the specific requirements, the reintroduced version is broadly similar to the original. The surgical requirement as an alternative to a diagnosis of gender dysphoria is somewhat genital essentialist and a concern for those who can’t undergo surgery for medical reasons or would prefer not to, but in line with how thinking was a decade ago. If six years full time on it’s own isn’t enough to convince the government you are serious about your gender, I don’t know what is!
On the flip side, this is possibly good news for some of those with intersex conditions, given no diagnosis of gender dysphoria is needed and the nature, timing or consent as to surgery isn’t specified. I do not know if the Gender Recognition Panel was ever asked to consider such a case under the old fast-track rules, so I can’t guess if they’d grant such recognition but the law suggests they should – it states the panel “must grant the application” if they are happy the applicant has “undergone surgical treatment for the purpose of “modifying sexual characteristics”.
PS As a reminder, you can write to Baroness Stowell in support of ending the Spousal Veto. The Coalition for Equal Marriage have also produced this handy form you can use to register your views.
Below is a roundup of all the coverage of the McNally appeal result that I am aware of. This should be a complete list, so if I have missed any please let me know.
Many of the articles and blog posts contain swearing or homophobic or transphobic language, although usually as part of the comments rather than in the main body of the text.
Other than the first three items which are notable because of where they have been published, entries are listed in date order.
- Paris Lees/Vice: Should Trans People Have to Disclose Their Birth Gender Before Sex?
- Jane Fae/New Statesman: Trans or otherwise, it’s time to overhaul the law on “rape by deception”
- Incorporated Council of Law Reporting’s summary of the case.
- British and Irish Legal Information Institute: The text of the original judgement
- Lexie Cannes/Guerrilla Angel Report: UK court ruling: trans people engaging in sex without disclosure may be criminal
- UK Criminal Law Blog: When is consent not consent?
- Stavvers/Another Angry Woman: We need to talk about rape, “deception” and trans people
- Emma Brownbill/Useful Nuisance: Cis until proven guilty: Disclosure and consent at the Court of Appeal
- Cheryl Morgan/Cheryl’s Mewsings: UK Writes Trans Panic Into Law
- Planetransgender: UK court convicts teen for non disclosure of trans status prior to penetration
- Mercia McMahon/Trans Scribe: Justine Judgement and Justine Justice
- Cissiegirl/Pat’s Handmaid: You Can’t HAVE Marriage Equality Without Trans Equality!
- Rachel Bower/Geek Girl: The Justine McNally judgment – homophobic not transphobic
- Jane Fae/Fae Interrupted: The reality of ignorant judgment
The Court of Appeal has just published it’s judgement in the latest sex-by-deception case. This is, to the best of my knowledge, the first time a written judgement has been provided in such a case and is binding on the lower courts, i.e. creating case law.
It’s not good news.
As I’m quoting direct from the judgement, the below contains detailed references to sexual acts. This is unavoidable as it is highly relevant. There are no references to underage or non-consensual acts, the case revolves entirely around “deception” as to gender invalidating consent.
I’m going to quote extensively from the judgement as I believe it speaks for itself However, you can skip the quotes and just read my summary and it should make sense. What I will note is the heavy and unnecessary use of quote marks to imply deception earlier on: ‘him’, ‘his’ etc. This is despite the note from the judge towards the end about “confusion with her own sexuality”, specific reference to the person concerned “talking about wanting a sex change” and a pre-setnence report revealing “a history of…confusion surrounding her gender identity”.
The judge’s way of phrasing things could at best be described as insensitive and I suspect they had no training in this area.
6. Arrangements were made for “Scott” to come down to London to see M just after her 16th birthday…
7. …at the time the appellant was aged 17 years…
Summary: There was no issue with age of consent. (Quite the opposite, they waited until they were old enough)
8. … They went to a bedroom where it was dark and the appellant began to rub M’s vagina with her fingers and gave her oral sex. … M offered to give the appellant oral sex but the appellant declined. It was alleged (this being the count that was denied and not pursued) that M was penetrated with the dildo.
9. On the second visit, there were lots of occasions of oral penetration and occasions of digital penetration, always of M. … On the third visit, although there were difficulties in the relationship, they had a party. They still talked about having sex but the appellant was not interested in trying again.
Summary: There was genital contact and penetration with tongue and fingers. There was no penetration with a dildo or any confusion/lack of clarity over what it was penetration was with considered in the case. This is important: There was no “penis-in-vagina” sex involved in the case.
10. However on the fourth and final visit in November 2011, the appellant was confronted by M’s mother about really being a girl. … The appellant kept talking about wanting a sex change and M said the appellant had lied to her for four years and all that time she had been calling her Scott.
47. …The pre-sentence report spoke of a history of self harm and confusion surrounding her gender identity and sexuality, which were resolving….
Summary: There’s clear confusion over gender here. Talking about wanting a sex change is enough to get protection as a trans person under the Equalities Act 2010.
23. The case for the Crown was that M’s consent was obtained by fraudulent deception that the appellant was a male and that had she known the truth, she would not have consented to acts of vaginal penetration. Mr Wainwright argues that deception as to gender cannot vitiate consent; in the same way deception as to age, marital status, wealth or, following EB, HIV status being deceptions as to qualities or attributes cannot vitiate consent.
A little confusing this, but in a nutshell: It has been ruled previously that deception over age, marital status, wealth or HIV status does not matter.
26. Thus while, in a physical sense, the acts of assault by penetration of the vagina are the same whether perpetrated by a male or a female, the sexual nature of the acts is, on any common sense view, different where the complainant is deliberately deceived by a defendant into believing that the latter is a male. Assuming the facts to be proved as alleged, M chose to have sexual encounters with a boy and her preference (her freedom to choose whether or not to have a sexual encounter with a girl) was removed by the appellant’s deception.
Summary: Gender is somehow special because, presumably, “eww, gay people” and “eww, you turned me gay”. Homophobia as much as transphobia. “Deception” when it relates to gender does matter, even if primary sexual characteristics (Vagina/Penis) are not involved. As far as I’m aware there has never been a case in the UK involving deception as to religion, which would be an interesting comparison as it can involve strong emotions too.
Age, marital status, wealth or HIV status do not matter. Gender does.
11. …On 30 November 2011, M gave a full account to police of these offences. Although one or two answers might be said to be equivocal, she said that she did not know that “Scott” was a girl…
12. The account which the appellant provided to the police in a prepared statement was to the effect that she met M through the internet, pretending to be “Scott” because it made her more comfortable. She suggested that M found out about her real identity as early as December 2009 and they had a big argument. They eventually started speaking again and then met up. She expressed the view that she thought that the complainant knew or suspected that the appellant was a girl. That suspicion would be inconsistent with the suggestion of an argument when M found out; neither would it be consistent with M’s purchase of condoms before the first visit and preparation for it in 2011.
30. The draft witness statement re-iterated that the appellant had lost contact with M around Christmas 2009, noting that it was resumed when M requested pictures via a webcam for which purpose the appellant made herself look like a boy. The statement goes on to say that when the appellant travelled to London, she did not try to disguise herself as a boy and continued with these words:
“12. I presumed M knew that I was a girl and consented to sexual activity which took place although I specifically deny I ever used a dildo on her. I admit I had a dildo which she saw but I did not use it on her.“
Summary: The judgement goes on at length beyond this and is also concerned with the accuracy of legal advice given, but there appears to have been some doubt as to how aware M was about the gender situation. Given they were both teenagers, possibly confused about sexuality and on one side gender, this perhaps isn’t surprising.
Essentially it goes on to say that although the burden of proof is with the prosecution, if you’re trans and out yourself to someone prior to any sort of sexual act – even touching – then it would be best if you can prove it, in case they (or their parents) later try to prosecute. A Gender Recognition Certificate would, I hope, be a defense – but having read the judgement, I’m not certain.
Quite how you prove you told a partner without outing yourself to all and sundry, putting yourself at risk of physical violence, loss of employment, homelessness etc is not addressed in the judgement.