Panel for Trans* Candidates and Elected Officials Around the World discussion

Trans* Candidates and Elected Officials Around the World

Panel for Trans* Candidates and Elected Officials Around the World discussion

Earlier this month, a number of trans and other activists met in the Houses of Parliament in London to discuss the release of a new and (to the best of my knowledge) unique report. It collects together a list of trans politicians who has stood for or been elected to public office, and it well worth a read. You can download the full report, in PDF form, from the LGBTQ Representation and Rights Initiative who are based at the University of North Carolina at Chapel Hill.

I know from having covered this in the past on this blog that it can be terribly hard to get information on this topic, and made more difficult by the need to verify details to an extent not needed in other walks of life. When the authors of Standing Out compiled an earlier report, one party in the UK either “outed” or erroneously listed one of their own candidates as trans, which led to threats of legal action against the authors of the report.

However, I suspect many readers here will have useful bits of information on the topic of trans politicians that have not made it into the report – if you do, please do drop them a line via their web site.

Whilst the media might like to portray trans people as terribly interesting and worthy of several column inches in the battle to sell papers and advertising, my drive has always been to try to make being trans in politics a little more normal and emphasise that there have been and remain quite a number of us active at many levels of government. In that vein, and in the hope it encourages more people to openly stand, I will leave you with a quote from one of the report’s authors, Andrew Reynolds:

There is no evidence that, once selected, LGB and trans people are systematically less likely to win an election.

The latest batch of written responses to the Commons Transgender Equality Inquiry have been released, and there is some interesting data hidden in them, particularly relating to TransDocFail and the Equality Act.

From the General Medical Council:

Of those 98 [TransDocFail cases] we identified 42 cases in which the allegation appeared potentially serious enough and recent enough to engage our processes… Any complaints made as a result of this will have been passed direct to our triage department and so we are unable to track all complaints from this group in isolation from any others we receive. We have however identified three complaints that were submitted to us as a direct result of the survey because the complainants specifically referred to the survey within their complaint. Of these three cases:

  • one was closed as we were not able to identify the doctor involved.
  • one was closed as the allegations related to incidents which had occurred more than five years prior to receipt of the complaint…
  • one was investigated and at the end of that process, two senior GMC staff (one medical and one non-medical) made a decision that the complaint should be closed with no further action because it did not meet our thresholds.

In summary, the GMC are not aware of having taken any action despite nearly 100 complaints of often serious discrimination and maltreatment being bought to their attention.

On the positive side, the response from a Barrister who had been invited to give legal advice to the committee is indicative of where the Inquiry might be headed. Asked about the effects of the Equality Act 2010, it appears that despite a clear intent to strip some rights from trans people it may have been deficiently drafted to our benefit:

The exemption from gender reassignment discrimination in respect of single-sex / separate services in section 35 of Sex Discrimination Act 1975 was not amended by the Gender Recognition Act 2004 to make clear that such an exemption would not be available where the person being discriminated against in respect of single-sex / separate services provision held a GRC.

In conclusion, on this question, whilst decision-making is on a case-by-case basis, if a service-provider sought to rely on the exemption from gender reassignment discrimination in respect of single-sex / separate services in cases where the person holds a GRC, it is likely to be extremely difficult for that service-provider to show that the discrimination is a proportionate means of achieving a legitimate aim

There are some caveats:

Nevertheless, in my view, the gender reassignment exemption in relation to the provision of single-sex / separate services will most likely be upheld by a court in a case of services such as women’s refuges, rape crisis services and other similar services providing facilities or services to victims of violent and/or sexual assault. It is these type of services where the aims of the service might most rationally be connected with the exclusion of trans individuals and so such an exclusion will be most likely to be viewed as proportionate.

The Inquiry asked the effects of amending various laws to reintroduce the “for all purposes” clause in the Gender Recognition Act, which would restore much of the power of a Gender Recognition Certificate if enacted, a very welcome move and hopefully reflective of the mood of the committee as a whole.

There is also a lengthy section on how existing legislation and amendments might help non-binary and intersex people.

Yesterday afternoon, Baroness Liz Barker lead further calls for action on trans prisoners in the House of Lords. For those not following the story, this follows a public outcry over Tara Hudson being placed in a male prison and then, last week, the death of Vicky Thompson in Leeds who had also been placed in a male facility. This is far from a new issue, being one I wrote about back in 2010 and that stretches back to at least 1996, when Press For Change were campaigning about it.

Having had longer to get briefed on the issue, the House of Lords gave the government a much tougher time than in the Commons, although the government still failed to give any substantive answers.

Suggesting that it would be “inappropriate” to place pressure on people to obtain a Gender Recognition Certificate when the current policy does exactly that is also a very odd response, and we know that trans communities were not consulted in the creation of the current policy, based on an old Freedom of Information request.

Stripping the extensive parliamentary niceties and paraphrasing heavily, the exchange went much as follows with commentary in italics: (The formal transcript is also available on Parliament’s web site)

  • Liz Barker: (LibDem) In light of the death of Vicky Thompson, will the Government review the Prison Services’ treatment of trans prisoners?
  • Edward Faulks: (Conservative Minister) We can’t comment on Miss Thompson’s death while investigations are ongoing, and the policy is currently under review.
  • Liz Barker: (LibDem) Recent events have shown that placing trans women in male estates is dangerous. Does the Minister agree that trans prisoners should be housed in the estate of their acquired gender in the first instance and moved to another estate only following a thorough investigation that rules out all other safe alternatives?
  • Minister: The National Offender Management Service policy suggests people are housed according to their legal gender under the Gender Recognition Act, but a degree of discretion is allowed to the Prison Service.
  • Michael Cashman: (Labour) What urgent steps will the Minister take to review the location of all trans people in prison and to move them to appropriate prisons according to their acquired gender, to avoid a repeat of the tragedy that befell Vicky Thompson?
  • Minister: The important thing is that there is no generalisation here. Individual assessment is carried out by the Prison Service. It is after that assessment that they should be assigned an appropriate part of a prison.
  • James Hope: (Crossbench) Does this policy also apply in Young Offender Institutions?
  • Minister: The policy applies throughout the prison estate, including the youth estate.
  • Paul Scriven: (LibDem) There has been an eight-month gap when the current guidelines are no longer applicable because they are past their expiry date. If those guidelines are being updated, what open invitation has been given to trans support groups to help the Government update the guidelines?
  • Minister: The noble Lord makes what he may think is a clever point, but the policy remains current until cancelled. We take account of trans communities view when drafting policy. (The accusation from the minister that Lord Scriven’s point is “clever” is rather ill-judged, given that the question follows a death and that evidence to the commons Trans Equality Inquiry includes a submission from someone in prison specifically stating that the expiry of the old policy has caused problems. We also know that trans communities were not widely consulted in the creation of the current policy, based on an a parliamentary question from Caroline Lucas and a Freedom of Information request.)
  • Jeremy Beecham: (Labour) will the Government’s review extend to the size of the prison population, and will the training of prison staff be extended in time and depth?
  • Minister: Prison officer training has been extended to include equalities provisions, including trans issues. The original prison service policy is an impressive document, but there is room for continual improvement.
  • Jonathan Marks: (LibDem) One difficulty under the existing system, with giving priority to legal gender, is that trans people who turn out to be offenders may be the least likely to apply for gender recognition certificates (GRCs) under the 2004 Act. Will the government review take that into account?
  • Minister: The decision to apply for a GRC is an intensely personal one. It would be entirely inappropriate to in any way place pressure on somebody to go through that process. (Suggesting that it would be “inappropriate” to place pressure on people to obtain a Gender Recognition Certificate when the current policy does exactly that is a very odd response)

Liz Barker has also written about the issue for the Huffington Post.

The full exchange is worth watching and is below and also on the Parliament Live web site.

The Liberal Democrats are currently conducting a consultation on governance, the details of which can be found here. (PDF Link) As I bang on repeatedly about transparency and accountability in my response, it seems appropriate to make my response public – but be warned, at 3,800 words it’s quite long! I have been a little tardy submitting this as the deadline for responses is noon tomorrow, but there is still time left to respond if you wish. You might also want to read the responses of Jennie Rigg and Andy Hinton. (If you know of any more public responses, please let me know and I will list them here)

Although I wrote the response, Sarah Brown offered some input and endorses the points below.

Party Values
Q1 Are these still our values?

The language is a little dated in places, and most notably the list of protected characteristics is missing “gender identity”, but yes.

Q2 Are these values embedded into our party structure at all levels, members, volunteers, elected office holders and paid staff?
Belief in these values is embedded at all levels. Execution, as with many organisations of any size, can fall short.

Q3 What does the party do well to live its values?
Doing the right thing, not the politically expedient thing. Examples of this are legion, so I will not list them here.

Q4 What does it need to improve?
Communication and transparency. It should not be unexpected that overworked staff and volunteers usually have concerns other than communicating the results of meetings that, on the whole, will be dealing with routine and mundane matters. The only way this can happen is by elected office holders continuously pushing for more openness.

Q5 What should the party stop doing or do less of?
Poorly (If at all) communicated decisions. The externally-facing party may have a PR and communications machine, but those of us on internal committees do not. There is sometimes a reluctance to share some conversations that need not remain private because the public may see them badly, but if the party PR machine and Federal Executive have concerns about internal committee decisions being communicated accurately then resource needs to be assigned to this in just the same was as it is to, for example, conference motions.

The party also often tries to do things centrally, such as diversity, that those involved have limited experience and training on. The General Election 2015 campaign was a good example of this.

Q6 What should the party start doing or do more of?
Two-way communication with members. All-members emails giving the agenda for an upcoming sub-committee of the Federal Executive would clearly be excessive, but at least some of that that information should be online where interested members know to look. Two prominent examples where things need improvement are that the full results of previous committee elections are only available via a member’s web site and that the contact details of federal committee members are not made available, even if the committee members would be quite happy for details to be available to other members.

Committee membership pages need to be kept up to date and more complete. Several entries on the pages for the FE, FCC and FPC are incomplete and contain no text or photo or have information that is months or years out of date.

There is merit in establishing a part-time post whose role is internal communication – not of the Ad Lib or Newsletter variety, but responsible for updating the web site with all these details and minutes of meeting. I appreciate that funding such a post would be nearly impossible in current circumstances.

Q7 If we believe in power being exercised at the lowest level possible, how do we make sure that decisions are made as close to members as possible?
By letting members know that a decision will be taken in the first place, or that is has been taken so that it can properly be scrutinised. We have a hierarchical system with local parties at the bottom, but if local parties do not know what those at HQ are doing they are not able to influence the outcome. We already have consultations, such as this one, on major issues but very little information is available on who is making day-to-day decisions or will be voting at various Federal Committees.

Whilst opportunities for new Liberal Democrat peers will be limited at best in this parliament, thought should also be given to re-introducing Interim Peers List elections. At absolute worst it shows we are taking the problems seriously, but in better times will ensure that the House of Lords is kept supplied with an influx of members who are in-touch with the wider membership.

Governance Values
Q8 What should our strategic priorities be in determining the party’s structure?

Re-evaluation of the powers and role of some of the “middle-management” committees with a view to creating a more accountable and transparent structure. At the moment, some of these committees make decisions that can end up being the focus of internal party controversy when little is known about the membership of the committees and where there is no opportunity for the wider membership to hold them to account. Troubles in recent years with, to pick just two examples, the FFAC and English Council have often led to choruses of “Who are they?” and “Who sits on them?”. In the case of the FFAC, it is not even listed on the party’s web site.

Q9 What powers or decision making within the party could be placed at a more local level than at present?
A review of some of the “middle-management” committees could push power more towards regional parties – who can be held to account by their regional conferences.

Q10 How can we ensure that there is, in our governance, greater: a) selflessness, b) integrity, c) objectivity, d) accountability, e) openness, f) honesty?
More openness will inevitable lead to more of the other.

Q11 Are there any other principles that should underpin our governance?
I will simply quote Jennie Rigg’s one-word response to this question: “Justice”.

Transparency and Accountability
Q12 How do we balance the ideal of transparency against the need to prevent information useful to our opponents reaching them?

This question needs to be asked, but it troubles me that it needs to be asked in a party that is full of serving and ex-councillors and MPs for whom this should be second nature. Very little information is genuinely of value to political opponents and it makes up a small proportion of the information that should not be public – for example, future campaigns, the detail of any disciplinary hearings or the location of future conference venues which could cause personal embarrassment or financial issues for members if made public. If members of committees and groups are in the habit of flagging which agenda items and papers are confidential versus public, as often happens in council meetings, that will make the work of those who have been elected on a platform of transparency and openness that much easier.

Q13 Which levels of the party should have public-facing activities and which should not? What are these activities?
“Public facing” seems to mean “employs staff to handle PR”. It should be up to each organisation within the party to determine if it needs to do this, on the understanding that lack of a PR function does not mean that decisions made by that organisation should not be communicated to members.

Q14 Should the party consider having more direct public (i.e. non-member) input into the organisation, and if so what form would this take?
Outside of policy working group consultations, where it already happens, no.

Q15 Are there some basic principles we should use when amending our governance structure? Please note this is not a request for which committee to abolish! We want to understand what members want to know or monitor, and how you can feel that this is your party.
Review the process of electing members to committees where the electorate is not party-wide. Even committees that are not entirely appointed are made up of reserved places from other groups and “representatives” from other committees to the point that – on the FE – directed elected members are barely in the majority. These posts should be kept to an absolute minimum or abolished and power handed to the democratically elected members of the committee to co-opt suitable members, should they feel the need.

Whilst expanding the committee system would not be helpful right now, we should absolutely not be looking to abolish, reduce or limit the powers of the directly elected federal committees. That would concentrate too much power in too few hands, many of whom will be excellent, talented and well meaning people but still not accountable to the membership.

Q16 Do you want to see minutes of every meeting on the party website, reports on Lib Dem Voice and other blogs of party meetings? How should the party manage this openness of information with the few matters that are genuinely confidential?
I appreciate that there will be meetings whose topics will be entirely confidential but these should be the minority and certainly want to see us head in the direction of publishing more details. I am pleased to have been able to do this for Federal Conference Committee. Credit is also due to Mary Reid from LDV who has helped make this possible.

Unfortunately, continuing the theme of lack of details on the party web site mentioned earlier, even when minutes have been sent to HQ by the chair of committees it has been many months before they have been put up because this is not a staff priority.

I have skipped Q17-Q23 as I do not feel I have anything constructive to add that others have not already said better than I.

Respect for each other
Q24 Should we change the way our discipline structures work to streamline and simplify them?

To the extent that it is possible to do so whilst maintaining trust and integrity, yes. I am aware of cases where the party disciplinary procedure has been used, typically by those outside the party, to harass prominent members of the party who are also members of marginalised groups and where members have been subject to double jeopardy on procedural grounds. Opportunities to use our disciplinary system against us for less-than-honest purposes should be kept to a minimum, where that is compatible with justice, and members should never face double jeopardy except in the most serious cases.

On any topic that involves members of marginalised groups and sub-cultures, input should be sought from an appropriate body (Often AO or SAOs) as early as possible to ensure sensitive handling.

Q25 How do we make sure that systems of accountability are properly in place at a local, regional, state and federal level, so that reporting and monitoring procedures work for members?
Reporting back in an anonymous fashion, perhaps to regional conferences that investigations are taking place. For example: (And this is entirely fictional) “Fred Bloggs was appointed to lead an investigation following complaints of harassment made against a local party chair in Essex. The complaints were made by one member of the public, and the investigation concluded no further action was required”. Some councils do this well (Including my own council, Cambridge City) and their example cam be followed.

This will indicate to the membership that these issues are being taken seriously and investigated, because at the moment many are unaware that investigations happen at all.

Q26 What do members what from the complaints and disciplinary processes? Should there be a stronger focus on early mediation and speedier resolution of problems?
That justice is done and that it is done in a way that people have trust in. On speedy resolution, see my answer to Q24.

The figures presented on page 11 of the consultation paper are misleading at best and it concerns me that this table has now been published widely across the party without giving (S)AOs the chance to check the figures for accuracy.

  • Sources are not given, but there have been a number of studies conducted by the ONS that a 2% LGB figure could have been taken from. However, the sexual identity figures are considered experimental by the ONS and have attracted criticism from many organisations and activists. Confusion arises by taking only those individuals who were willing to out themselves as part of the survey and state that they were LGB and ignores the high levels of “Don’t know” (3.6%) and “Other” (0.4%) responses and those who were unable or unwilling to answer. (0.7%) A detailed discussion of the problems with LGB population estimates would be too lengthy to include here, but a figure of 6% – which was also used by the DTI in costing the introduction of civil partnerships – is often used.
  • The 2% ONS figure has been quoted in the paper as covering LGBT+, whereas the ONS data only covers LGB. Although overlap between various groups means that simple addition is not possible, EHRC figures show that as much as 1% of the population falls under the protected characteristic of “Gender Reassignment” (with lower numbers actually identifying as trans*) and up to 0.4% identify to some degree as non-binary. Additionally, 1-2% of the population have intersex variations, covered under the “+” of LGBT+.
  • It is unclear what is meant by “Federal Conference” or “Regional Conference”. (Those registered to attend or voting reps? How was this data collected?) Although, based on data collected by LGBT+ Liberal Democrats prior to the election, the figure of 6% for LGB&T candidates is accurate the 18% given for Local Party Officers is surprising and without more evidence I would have to say unbelievable. No current or former Local Party Officers or conference representatives I have spoken to can recall ever having completed an equalities monitoring form.
  • There is insufficient breakdown to produce any useful analysis and basing decisions on the aggregate numbers risks making an already unequal situation worse. For example, we know that LGBT+ Westminster candidates are overwhelmingly white, cisgendered gay men – of 38 known LGB candidates, 36 (95%) were men. Similar breakdown is needed for all other figures – as an example of good practice, the Workforce Reports submitted to Cambridge City Council’s Equalities Panel, of which I am a member, includes 19 categories of “ethnic origin”. This allows the council to see if certain minorities within minorities are under represented, even if the overall figure looks healthy – as is the case with lesbian and bisexual women within the party hierarchy.

Q27 What can members and the party do to embed our values about diversity into the party?
Let (S)AOs, who are usually the subject matter experts on these topics, have input into areas that affect them at the point where consultations and manifestos are written not when they are published. HQ staff do not have the time to do this properly and doing it badly is worse than leaving it to (S)AOs and party members. I have expressed elsewhere my concerns about how diversity issues were handled during the general election campaign in particular and those concerns still stand.

In short, “Nothing about us, without us”.

Q28 What more should the party do to support and help those from groups with protected characteristics and those under represented in parliament?
Q29 What should the party do to make this happen?
These questions are difficult to answer well in an environment where we are not winning new Commons seats, nor are we likely to be awash with appointments to the House of Lords. Largely, see the answers to Q27 above and Q7 on the Interim Peers List. The Leadership Programme also worked well, but should not be seen as the only way for members of under-represented groups to be selected to winnable seats. At times, during the run-up to the last parliament, it felt as if members of diversity groups only counted if they came from the leadership programme. Where we stand members of marginalised groups we should also take steps to ensure they represent the diversity within marginalised communities rather than just the more “acceptable” fringes

Ensure that any positive action or publicity does not lose sight of diversity-within-diversity, as outlined above under 4. (Insufficient breakdown of figures)

Q30 Should the party look at specific arrangements to ensure that party bodies, candidates and the leadership of the party are more diverse?
(a) For example, should the party ensure that committees at all levels have at least one third women members, and a percentage of BAME members that reflect the community at that level?

The one-third quota for each (binary) gender on committees seems to work well. I am not sure that this approach would work for groups that are much smaller than 50%, and if the party includes BAME there will inevitably be an outcry from disability and LGBT+ groups. It also runs the very real risk of under-represented minorities-within-minorities losing out. Given the complexity surrounding internationality (i.e. the proportions of under-represented groups added together can equal more than 100%) it is entirely possible to create a situation where every member of a committee would need to be from an under-represented group. This is clearly undemocratic.

(b) Should the party return to the ‘zipping’ mechanisms for list elections used in England and Wales for the European elections in 1998, which gave us 50-50 gender breakdown in the European Parliament?
Yes. Zipping should be reserved for special circumstances rather than the norm, but I believe the current situation qualifies.

(c) Should the party look at all women shortlists, and BAME shortlists in areas with higher levels of BAME residents?
No. I am generally opposed to all-women short-lists, on the grounds that they are neither a very liberal nor democratic (at a local level) solution and these risk locking out other marginalised groups, in particular non-binary-identified individuals. An all-underrepresented-groups shortlist would be the least-worst option. Also see my answer for (a) above.

(d) How do we encourage, mentor and support people from underrepresented groups in politics to put themselves forward for roles in the party?
By creating role models, which can be done by both the methods outlined in (b) and by appointing more people openly or visibly diverse people to leaderships roles. I believe the party has done reasonably well on this in recent years.

(e) How do we make democracy in the party available to all members? (For example some local parties provide grants to members on low incomes to help them attend conference; in the past grants have also been available for disabled people to help with the extra cost of accessible hotel rooms)
By making democracy more transparent – see answers earlier. Some people will be so disadvantaged or just at the wrong point in their lives so that attending conference is completely untenable, so simply adding more funding can never be a complete fix.

(f) How can the party best use former MPs, candidates and Leadership Programme members to improve the public perception of diversity in the party?
We should not worry too much about former MPs and candidates, but focus instead on those coming up.

Q31 Should the party ensure diversity in the senior leadership roles of Leader, President and Deputy Leader?
Given the Leader and President are elected independently of each other, I am not sure how this would possible. I remain unconvinced that the role of Deputy Leader – handy though it may be for parliamentary procedure – is particularly relevant to the media or wider party.

Q32 If yes, should this just reflect gender diversity, or other under-represented characteristics as well.
As with shortlists, if diversity is imposed it should be all under represented groups.

Q33 Should a Deputy Leader be elected by the members or appointed by the Party Leader?
The role of Deputy Leader and the pool of candidates (MPs? All parliamentarians? All members?) needs to be better defined before this question can be answered.

Q34 If the Deputy Leader is elected, should the election for Leader and Deputy Leader be on a joint-ticket basis where possible?
If a decision is taken to impose diversity, I believe this is the only way of achieving it. (i.e. At least one of the two posts must be a member of an under-represented group)

Q35 Should remuneration and expenses be made available to the President and/or Deputy Leader?
Most certainly. Guaranteeing staff time and an income for the president (i.e. Unpaid for MPs, a top-up for Lords who I understand are paid less for their parliamentary role and full pay for non-parliamentarians) would go some way to making the post more accessible to those who lack either the wealth or an existing parliamentary seat.

Q36 Are party committees organised in such a way that all members who want to are able to take part? Can we use technology to help (as with telephone conferencing or Skype)?
Not well, and committees (And policy working groups) tend to be dominated by those inside the M25 as a result. Telephone conferencing works to an extent for meetings held in LDHQ but is usually unsatisfactory for meetings in Portcullis House or the Palace of Westminster and fails to communicate body language. I have worked for more than one international company which relies on Video Conferencing – often Skype, due to cost – for it’s internal communication. There is a cost associated with this for hardware of an appropriate standard but it is not prohibitively expensive. (Around £1,000)

Q37 Should we highlight the areas of responsibility for certain committees more clearly, and encourage members standing for committees to highlight their expertise in those areas, rather than the tendency to focus on campaigning experience?
Successful candidates will highlight in their election material the areas that members feel are important – transparency into the work of the committees will result in a more informed electorate and is likely to result in election material changing. Steps to enforce inclusion of certain details into election material feels undemocratic.

Q38 Should we actively encourage progression in party roles, especially for those from under represented groups?
Yes, but at the moment many are unaware of the work of the committees so do not see the benefit in standing.

(Q39 is “If you have never stood for a committee, please tell us why.”, so I am not answering it!)

Q40 Should we consider reducing the tiers of structures to simplify accountability?
Yes, as long as we are not eliminating directly-elected posts. See answers to earlier questions.

Q41 Should terms of office be streamlined, so that they are consistent within the party? If yes, what should the term be?
Committees do different jobs and members have varying levels of power, so there is no one-size-fits-all approach. Two years feels about the right length of time for a federal committee post as it balances the need for change, perhaps within a single parliament, with giving people the chance to learn the ropes. The same could be said for local party posts but two years may be too much of a commitment for many members to feel happy taking on the role.

Q42 Should all elected officers and committee members have a time limit before they have to stand down for a period before putting themselves up for election again, or be time limited?
Term limiting unique and powerful posts such as the President and at a local level, local party/(S)AO chair makes sense but term-limiting individual federal committee membership is less attractive and would result in the “usual suspects” committee-swapping and potentially a churn in experienced members.

Term-limiting local party/(S)AO posts other than chair could lead to smaller organisations collapsing due to lack of people willing to take on posts.

The latest news on sex-by-deception cases yesterdays sentencing of Newland to eight years on three counts of sexual assault. There are a few points worth addressing, which I’ll go through one by one:

  • Firstly, while the case might persuade future judges it does not set much of a precedent. There are caveats and it does depend who you ask, but in general any case initially heard by the Crown Court is not considered binding in future court cases. This means that yesterday’s judgement is relevant only as far as it relates to thought processes that the judge will go through when sentencing.
  • The extent to which trans issues are directly involved is limited. The courts tend to play this down as not relevant even when there is strong evidence to the contrary, although the judge does state “the close link with your troubling issues of sexuality…and blurred gender lines is important“. There is perhaps more here to concern gender-queer and non-binary folk who may be “mistaken” (Or correctly read!) as the “wrong” binary gender rather than binary-identified fully transitioned trans people.
  • Unlike convictions in earlier cases, this was specifically “Assault by penetration”, which we can be sure of as the judges sentencing remarks have been reported in full – the relevant part being the reference to “section 2“. Previous cases have not involved penetration, so this is slightly different and creates a little confusion. We know the issue of deception was key, as the sentencing statement also go on at length about it and this theme is repeated in the judge’s directions to the jury during the main trial: If you are not sure there was any operating deception at all, then there is no question of a conviction.”. There are two ways deception that was legally relevant can involved:
    • Identity: Someone can lie about who they are, with failing to mention that you are an undercover police officer as the canonical example. Lies about being married, wealthy and so on and not mentioning HIV or some other STD are acceptable, legally. Identity only becomes a legal issue if someone is fooled into having sex with someone they think is spouse/partner or (After the McNally judgement) there is “deception” about gender. The

    • “Nature of the act”: There is also a law about “deceiving…as to the nature or purpose of the act” which could apply here as a dildo was used and not a penis. If the case was based entirely on this, it does not entirely stop it being an issue for trans folk as a question of “what is a penis” arises, particularly when it comes to surgery and prosthetics.
      Update: Since first posting, it’s been pointed out that section 79 of the Sexual Offences Act 2003 deals with surgically constructed anatomy, presumably with the intention of making it clear that rape of trans women is still rape. It’s not clear on first reading how this clause would apply to “conditional” consent, nor am I aware that the courts have ever had to consider it in this context)
  • Finally, was the the eight year sentence justified? Worryingly for any trans folk who do get caught up in this, according to the sentencing guidelines the answer is “yes”. The courts take assault involving penetration as almost as serious as rape and do not distinguish between lack of consent and withdrawn consent after-the-fact when passing sentence. Both psychological damage on the victim and prolonged deception are regarded as aggravating factors leading to an 8-year starting point. We already know from earlier cases that the courts often consider being trans a “deception”, and consider psychological damage on the victim even if it’s similar to a “gay panic” defence.

Stepping back for a moment and considering if someone engaged in a lengthy deception to engage in a relationship should face criminal sanctions – in an ideal world, possibly, but it’s hard to see how any situation in which consent can be withdrawn after-the-fact could not be used to target minority groups including gender identity, race and religion. The current rules are also inconsistently applied, with far worse deceptions being completely ignored by the law.

The draft bill has been published, the generic “I have not read this yet but I must say something” statements have been made by politicians, and now it’s time to read what the bill actually says.

First impressions: It’s not a bill I could come close to supporting without major changes, but it’s an improvement on previous attempts. It’s also long. At 299 pages, very long indeed. The 35 page extended press release at the start, titled a “guide to powers and safeguards” is interesting, but of course doesn’t actually have any legal force. Many of the initial comments about the bill made by politicians seem to have been on the basis of reading this guide, and not the full bill. One comment I would pick up on in the initial section is that the bill is “bringing together existing powers”. Simplification on existing legislation always sounds good, but the Equality Act 2010 was also supposedly a consolidation exercise. Many readers will know my less-than-positive feeling on that particular piece of legislation!

Another highlight of the intro is the assertion that there are “862 suspected paedophiles” that this bill might help catch. You can’t publish a bill like this in the UK without using the “but, but… terrorists and paedophiles!” line. As investigations of both are, of course, shrouded in secrecy this makes scrutiny that much harder.

It’s going to take time for everyone to digest it all and figure out where any remaining problems lie, so discussion will probably take weeks before there is any kind of consensus. I’ve read it properly – highlighter in hand – once through so far and it’s likely I’ve missed bits but here’s what I have noticed so far. (This is not a list of what I would want to see in an Investigatory Powers Bill, as that would include things such as notification to individuals, just a commentary on what is actually present)

Judicial Oversight
Rejoice, for we have judicial oversight of interception warrants!

OK, hold on a second. We have some oversight but you can drive a coach and horses through much of it. Three major problems jump out:

The standard of proof required is that of “Judicial Review”. Quoting from the Courts and Tribunal’s web page: “[A Judicial Review] is not really concerned with the conclusions of that process and whether those were ‘right’, as long as the right procedures have been followed“. Essentially, we’ll have a group of very well paid judges checking that the Home Secretary signed the warrants correctly.

Warrants can be modified after issue to add names to them. In the case of “minor” changes, such as adding new phone numbers, they can be authorised by the police themselves. However, major changes only need a minister to approve the change – a judge does not need to be involved.

Finally, “urgent” warrants do not need reviewing for five working days. Judges are already used to being woken up at unsociable hours so that warrants can be applied for, so five days seems excessive. It still requires ministerial approval, and getting hold of a judge would seem easier and quicker than getting hold of a government minister.

Training warrants
Interception warrants can be issued for “testing, maintenance or development” of interception systems and “training of persons” who carry out interception, without any need that data collected should be destroyed without being examined. I do wonder how many people might find themselves “accidentally” intercepting the communications of people they know, or doing it to someone “who won’t possibly mind, because they have nothing to hide”.

Wilson Doctrine & Journalistic Sources
Looking on the positive side, the additional protections given to members of parliament would be put into law for the first time by this bill and explicitly cover members of other many other legislative bodies. However, these protections are watered down significantly from the original doctrine – rather than a blanket ban on interception of MPs communications, any warrant would require that the Prime Minister be consulted.

Journalists fare little better – judicial authorisation is required to get access to data on journalistic sources even in situations where a judge would otherwise not need to be involved. Other professions (Doctors, Lawyers and Ministers of Religion) get “extra consideration” in the Codes of Practice, but no extra safeguards against interception in the main bill. It’s clear that the intent is to make any exceptions to surveillance as limited as possible.

Communications Data Retention
A very important point for many people will be exactly who is required to keep bulk data – ie lists of web sites etc, visited by users. There’s a cost associated with collection that the Home Office may pay for, although they seem to be pushing the cost on to service providers with the latest bill. Luckily, only providers who have been notified by the Home Office that they need to collect data are covered and nothing prevents an operator stating that they have received or not received a retention notice. This allows privacy-conscious ISPs to be able to state publicly that they are not performing bulk retention of data. As Keith points out in the comments, section 77 does prohibit revealing the existence of a retention notice.

There is a large section on “filtering” in the bill that deserves some explanation. Although data would be stored by ISPs, the Home Office would like to create a system (An API) so that they can remotely query and filter data on the ISPs systems without necessarily needing to talk to someone at the ISP. This removes a safeguard against wide-scale bulk data access without proper authorisation, and potentially allows someone to go on fishing expeditions that are marginally relevant to a warrant that’s been issues such as allowing queries like “tell me everyone across multiple ISPs who have accessed”.

Security of collected bulk data
The headline issue has been retention of data for 12 months by ISPs, which is longer than many other countries. But how securely is the data kept? The bill answers that in a surprisingly poorly written clause: “subject to at least the same security and protection, as the data on any system from which it is derived“. The draft bill will no doubt have had the attention of many security experts within the Home Office, so it’s surprising that they did not pick up on the obvious point: Hacking a router gives you relatively little ability to capture much data without someone noticing but hacking a pre-existing bulk data archive gives you much more data and is thus a bigger target. As a result of this, the security of retained data needs to be significantly higher than that of other systems and I am surprised not to see reference to some soon-to-be published technical guidance on the measures required.

There is also no prohibition on the use of data collected by service providers for commercial purposes, such as being sold on to marketing companies or used for targeted advertising. (If it’s allowed for in the ISP’s terms and conditions, it’s not unlawful disclosure!) There are major privacy issues here that we’ve seen already on a smaller scale, where people access help sites for domestic violence or LGBT+ issues and then other members of their household receiving targeted advertising as a result. Service providers can do this already to an extent, but it costs money to do. If they’re going to have to do it anyway (Either paying for it themselves or being paid to do it) then they might as well make some money from it.

Finally, and most critically, there is no prohibition on a court ordering the disclosure of collected data to groups like copyright holders. It would become very easy for someone to apply to the courts for a list of everyone who has accessed Pirate Bay, Popcorn Time etc and send them not-so-nice legal letters.

Equipment Interference
…or “hacking into other people’s computers” as most people call it – although the bill would force service providers to cooperate in hacking attempts. Although more analysis of the bill is needed this is one area where the Bill looks like an improvement on the existing situation, as hacking is currently going on without proper scrutiny. The most obvious omission is the lack of any consideration for the side effects of hacking should they cause problems, by taking down critical computer systems or installing back doors into systems that are then abused by others.

There has been a history of quid pro quo arrangements between security services where countries spy on each other’s citizens because the law doesn’t allow them to spy on their own citizens. Although the act prohibits formal arrangements of this type, it does not (that I can see) stop someone using information that they have been given that would otherwise have required an interception warrant. The act also allows the Home Secretary to sign agreements with other countries to honour each other’s warrants, but there is little to suggest that warrants from other countries would require the same level of authorisation and oversight as locally issued ones.

I will probably notice more on later re-reads of the draft bill, and I will post again if I find anything substantial.

Ahead of the publication of the latest incarnation of the Communications Data Bill, due out tomorrow, I thought I’d take another look at how the UK compares with other countries when it comes to the number of requests for user data. There are many articles that quote the raw numbers and the US invariably comes out top in those terms – with a population of well over three hundred million people, that’s hardly surprising.

Instead, I look at the number of requests per million population – i.e, as a citizen how likely is it that someone such as the courts or police will be looking at my data. The UK has an unenviable record in this regard, topping the charts as the most-spied on population back in 2010. The UK remained top in Europe until the latter half of 2012, when France just managed to get ahead – a trend that was repeated in 2013.

Since then, more data has been made available. Originally, only Google produced data but many other companies have followed suit. The big three who publish useful data, in terms of requests received, are Google, (Including Google Plus) Microsoft (Including Skype) and Facebook. Below is the chart for the latter half of 2014, which is the latest period for which full data is available. France and the UK are still neck-and-neck on user data requests per million population, beaten only by Singapore’s recent obsession with collecting data from Google.

Legal Requests graph 2014H2

User data requests per million population – July-December 2014

Another gender/sex/deception case is back in the news – this time, in Chester. So far, this case is not as directly relevant to trans people as previous cases, so it will likely not be followed as closely as others. However, what follows is a brief summary of what has been reported so far.

The usual approach of finding the first and most comprehensive news sources that have published the case has been used. This typically gives the most complete source and unbiased of information, which in this instance is the Chester Chronicle, who first published the story Monday night with two followup stories on Tuesday (1, 2) and Wednesday. Secondary and often tabloid cases have a habit of sensationalising stories to the point that after a few rounds of stealing borrowing stories from each other, they bear little resemblance to the facts.

As with previous cases, a “woman has posed as a man” to obtain sex, but similarities seem to end there. There is no hint in the reporting that Newland, the defendant, is in any way transgender and there are several key facts differentiating this from the McNally and other cases:

  • There was penetrative sex using a “prosthetic”
  • The alleged victim knew Newland (as a woman) separately from the online relationship
  • There is a claim that the alleged victim knew what was happening all along

The last of these is most interesting, as it mirrors the situation that a trans person might find themselves in having to defend a sexual assault charge under the McNally “you must disclose trans status before sex” rule, or in having to defend against forced marriage annulment. Specifically, how does someone prove that their partner knew the situation and is not just an ex trying to get revenge? Whilst the standard of proof in criminal cases is “proof beyond reasonable doubt”, the courts can not just accept someone’s word that they told their partner some fact or every non-violent rape case would be defended with “they gave consent”. This leaves the prosecution merely having to convince a judge or jury judge that of course they didn’t know someone was trans or they’d never have consented to sex/married them

The tables seem to have been turned in the current case, as the alleged victim has been forced to address the defence accusation that she must have known something was up and she has admitted that she may have been foolish. She had been asked to wear a blindfold during any sexual encounters, having never met her partner outside of meeting for sex – a fact that, according the reporting, the defence is making much of.

The the other two points regarding use of a prosthetic and knowing Newland already are covered by existing laws, specifically deception as to the nature of the act and deception over identity of a real person. Although it is possibly stretching the legal definition, if the jury is not convinced by the “alleged victim knew and went along with it” defence, the resulting verdict will depend heavily on those two points and not just the McNally “deception as to gender vitiates consent” ruling.

The trial continues.

The demands of campaigning meant I did not have time to prepare a pre-election post on trans* candidates prior to the election, but now that I am no longer delivering leaflets or knocking on doors, we can have a look at both who was standing and how people fared.

Prior to the elections, there were no full-time openly trans politicians in the UK at a District Council level or higher – May 2014 having been the first time in at least 14 years that this has been the case. We now have (at least) two elected trans politicians, back up to the pre-May-2010 peak.

As with last year, I have not produced a list of Town/Parish council election candidates, nor anyone not “full-time”. This predominantly because at that level, events are hard to track. Parish elections usually receive little media attention, are not well-publicised even on council web sites and are generally run on a non-partisan basis, even if candidates are actually party members.

Parliamentary Candidates – Listed in order of selection, none successful
Charlie Kiss Green Party Charlie Kiss
Islington South and Finsbury
8% – 5th place
Stella Gardiner Green Party Stella Gardiner
Bexleyheath and Crayford
2.2% – 5th place
Labour Emily Brothers
Sutton and Cheam
11.1% – 3rd place
Zoe OConnell Liberal Democrats Zoe O’Connell
4.5% – 5th place
District Council Elections – Successful Candidates
Zoe Kirk-Robinson Conservatives Zoe Kirk-Robinson
Bolton Council – Westhoughton North and Chew Moor.
41.3%, majority 2.7% (Simultaneous by-election)
Zoe OConnell Liberal Democrats Zoe O’Connell
Cambridge City Council – Trumpington Ward
29.9%, majority 2.6%
District Council Election Candidates – Unsuccessful Candidates
Labour Anna Booth
Trafford Council – Davyhulme East Ward
2nd – 41.4%. (Majority of winner: 1.1%)
Alice Chapman Liberal Democrats Alice Chapman
Cheshire West and Chester Council – Winnington and Castle Ward
7th – 4.21% (All-up elections: 2 places)
Anwen Muston Labour Anwen Muston
Wolverhampton City Council – Penn Ward
2nd – 37.6% (Majority of winner: 5.25%)

Federal Conference Committee met yesterday afternoon to discuss all the last minute items required to make conference happen such as amendments, topical & emergency motions, appeals and so on. It is nominally a two hour meeting, so it has to be quick considering there were 55 amendments to get through – despite getting stuck straight in at the start, we still overran slightly.

First up, amendments. When discussing motions, the ultimate decision is a yes or a no, but with amendments there is also the option of accepting it as a drafting change, i.e. it’s a simple enough change that it does not need to be formally moved and can be published in Conference Daily.

And, as with motions, there are a few reasons for rejection, such as it’s a topic that’s already been well debated as policy, it’s not considered significant enough for debate as an amendment, it’s covered by another amendment or simply we don’t have time. You can reasonably get one or two amendments in a 45 minute policy motion slot and two or three in a one-hour slot. Going beyond that leaves no time for actual debate.

Finally, before I list the amendments I should mention that the descriptions given here are my own summaries, as unlike with motions no title is submitted by the author.

F4 – Mental Health
11 amendments submitted for a 60 minute slot.

  • Accepted for debate
    • F4D: Conversion Therapy – LGBT+ Liberal Democrats (In reworded form)
    • F4F: Support for children & Young People – Liberal Youth
  • Accepted as Drafting Change
    • F4A: Local Government inclusion – ALDC
    • F4B: MH PSHE & Support – Bassetlaw and Sherwood & 28 reps
    • F4G: Mental Health First Aid – Oxford East (Parts only)
    • F4H: CCG governing body membership – South Central Region
    • F4I: Mental Health & Debt – 13 conference reps
    • F4J: “…get into and remain in work” – 14 conference reps
  • Not taken
    • F4C: Multidisciplinary integration & co-location – Hastings and Rye
    • F4E: Gender Identity Clinic Funding – LGBT+ Liberal Democrats

F6 – Stronger Economy, Fairer Society, Opportunity For All (Manifesto Motion)
16 amendments submitted for a 100 minute slot.

  • Accepted for Debate
    • F6C: Independent Living Fund – Central Beds, 18 conference reps, EMLD
    • F6I: Limiting reductions in Welfare Budget – 4 local parties, 57 reps (The Mark Pack Amendment)
    • F6J: Regulating Biometric data & gov’t databases – 10 conference reps
  • Accepted as Drafting Change
    • F6H: Working towards Land Value Tax – Tatton, 26 conference reps
    • F6O: Religion, Belief, Humanist Marriage & Caste Discrimination – 17 conference reps (Parts Only)
  • Not taken
    • F6A: Fairer Economy, Stronger Society – Camberwell and Peckham
    • F6B: Tackling Discrimination – Central Beds, 14 conference reps, EMLD
    • F6D: Youth Development Find – Central Beds, 18 conference reps
    • F6E: Promoting Fair Trade – Liverpool
    • F6F: Promoting the Living Wage – Liverpool
    • F6G: Ending “taxes on poverty” – Liverpool
    • F6K: Environmentally Sustainable Economy – 10 conference reps
    • F6L: Mental and Physical Health care & accessibility – 12 conference reps
    • F6N: Legal Aid & Court Fees – 14 conference reps
    • F6P: Religion – 19 conference reps
  • Withdrawn
    • F6M: Legal Aid, Judicial Review & Court Fees – 14 conference reps

F8 – Five Green Laws
17 amendments submitted for a 45 minute slot

  • Accepted for Debate
    • F8O: Resource Efficiency & Zero Waste Britain Act – 22 conference reps
    • F8P: Energy efficient housing & Fuel Poverty – 23 conference reps
  • Accepted as Drafting Change
    • F8B: Promote Cycling & Walking – Calderdale, 14 reps (Slightly shortened)
    • F8K: Include “conserve nature” in Nature Act heading – 11 conference reps
    • F8M: Correction – 11 conference reps
    • F8Q: Correction
  • Not taken
    • F8A: Funding for Local Government – ALDC
    • F8C: Ending fossil fuel use on railways – Calderdale, 15 reps
    • F8D: Environmental planning & building – 11 conference reps
    • F8E: Detection & prosecution of waste crimes – 11 conference reps
    • F8F: Delete open tendering clause (2a) – 11 conference reps
    • F8G: Delete 10mph clause (3d) – 11 conference reps
    • F8H: Thorium Cycle Reactors – 11 conference reps
    • F8I: Rewording IV – 11 conference reps
    • F8J: Rewording 3c – 11 conference reps
    • F8L: Rewording 4b – 11 conference reps
    • F8N: Rewording 3i – 11 conference reps
    • Request for separate vote on lines 86-88

F11 – A Better Deal for Britain’s Workforce
5 amendments submitted for an 45 minute slot

  • Accepted for Debate
    • F11A: Review Employment Tribunal feels & benefit sanctions – Barrow & Furness
    • F11C: Strengthen Minimum Wage enforcement – Liberal Youth
  • Not taken
    • F11B: Raise Minimum to Living Wage, Phase out zero-hours contracts – Camberwell & Peckham
    • F11D: Living Wage by 2020 – 3 local parties, 26 reps
    • F11E: Large political donations – 10 conference reps

F18 – Freedom of Expression in Europe and Beyond
7 amendments submitted for a 45 minute slot

  • Accepted for Debate
    • F18E: Right to practice and change religion – 19 conference reps (Merged with F)
    • F18F: Repeal of laws restricting practice or change of religion – 19 conference reps (Merged with E)
    • Request for separate vote on line 41 “considered” to end of line 42
  • Accepted as Drafting Change
    • F18B: Abolition of blasphemy & Apostasy laws – Merton
    • F18C: Police data requests against journalists – 10 conference reps
    • F18D: Drafting Amendments – 17 conference reps
    • F18G: Drafting Amendments
  • Not taken
    • F18A: Peaceful protest & Freedom of association – Calderdale, 14 conference reps

Next up was Emergency motions and topical issues. FCC needs to decide if submitted motions are genuine emergencies that could not have been foreseen at the time of the initial motion deadline. If more than one emergency motion is considered valid, there is a ballot of members at conference to decide which is debated.

Four motions/topics were submitted in total:

  • Access to Justice 800 years after Magna Carta
  • Making a Fairer Immigration System for All
  • Leaders’ Debates
  • The detention of women in Immigration Centres (Topical issue)

The Magna Carta motion was withdrawn and the Fairer Immigration motion was not considered an emergency, so only the Leaders’ Debates motion remains. The topical issue will also be discussed in that slot, but as it is not a motion there is no vote at the end.

Finally, there was one appeal against non-selection of a motion on coalition negotiations. The appeal was not successful.