Updated CPS guidance on sex-by-deception cases

The Crown Prosecution Service for England and Wales has in the last few weeks1 updated it’s published guidance on sex-by-deception and other cases on what it calls “conditional” consent. The new guidance is available on the CPS web site.

There is not much to report in terms of the guidance itself. The first two cases discuss more explicit “conditional consent”, namely Assange (Consent only valid if a condom used) and another case, where consent was given conditional on withdrawal. McNally is highlighted as being different, hinging on implied rather than explicit consent. Whilst I do not like the language used in the guidance, which repeatedly refers to gender as a “deception”, that is unfortunately in line with the wording used by the court itself.

What is more interesting is that any cases depending on conditional consent must be referred to the Principle Legal Adviser (I.e. CPS HQ) before any decision is taken. For better or worse, that should introduce some degree of consistency in terms of prosecutions. It is worth pointing out at this point that even if the CPS decline to prosecute, the police will still retain a whole host of other measures that could be used (or abused) against someone whose gender is seen as deceptive.

Although not proactively published, older guidance from the CPS has been obtained via Freedom of Information2 which indicates the issue of someone’s trans status being directly relevant to the case with them as a defendant have never really been considered before. The currently-in-force guidance that would have applied in the McNally and earlier cases, which the CPS did take pains to point out was “notably out of date”, only considers old-naming of a defendant who has a criminal record prior to transition and the need to carry on with medication. The current draft version of the guidance merely expands on this and corrects some errors.

It can be seen from minutes of the relevant group meetings (20120925, 20121120, 20130121) that the McNally, Wilson etc cases were not discussed. Whilst the group did not exist at the time of the McNally appeal judgement, it was meeting after the initial judgement and after the Barker and Wilson cases so the issue was already on the radar.

It has been stated online that some members of the group met with the CPS after the McNally appeal result, but the content of that meeting and the outcome has not been made public as confidential details of cases were discussed.

1. There is no publication date, but the Wayback Machine shows the previous page not including the new guidance from the 8th September, so it is within the last five weeks.

2. The oldest CPS guidance document came with a note saying that the contacts page had been removed as it contained personal information. Of the others, all have been edited prior to uploading to this blog. The original response from the CPS included names redacted via a black marker, but were still visible on the scanned documents. No content has been edited besides blanking out names fully.

2012 Political Conference Accreditation results

As a result of Freedom of Information request responses, the figures for all three major political party’s conference accreditation schemes have been released. When I looked at the numbers for 2010, Labour conference attendees were around twice as likely to be blocked as Conservative conference ones, with the LibDem conference somewhere in the middle.

The results for this year and previous years are as follows:

2012 2011 2010
LibDem 0.018% – 1 / 5,585 0.045% – 3 / 6,650 No accreditation
Labour 0.032% – 3 / 9,403 0.19% – 25 / 12,032 0.20% – 24 / 11,988
Tory 0.04% – 4 / 9,612 0.19% – 24 / 12,800 0.04% – 6 / 13,767

The first thing to notice is that 2012 conference attendance is well down across all three parties – 15% for the Liberal Democrats and over 20% for both Labour and the Tories. Secondly, conference rejection rates this year have been lower than earlier years, which may be the effect of additional focus caused by the liberal backlash against the process. It is also interesting to note that the difference between the Tory and Labour conferences in 2010 was a one-off, and has not been reflected in later years.

It always puzzled me how the figures for this could be so low, given the significant number of people I know who have been willing to apply but been stopped by accreditation – I know personally of at least three people this year who were unable to attend the Liberal Democrat 2012 conference. If we ask the police the number of people who tried to attend but didn’t complete accreditation, the numbers are much higher:

2012 2011 2010
LibDem 0.70% – 39 / 5,585 No data No accreditation
Labour 1.69% – 159 / 9,403 3.76% – 452 / 12,032 No data
Tory 1.04% – 100 / 9,612 3.42% – 438 / 12,800 No data

So it seems that accreditation is having a more serious effect on excluding people than the headline rejection figures would initially show. For example, one cases I am aware of includes a situation where someone had moved around and the police asked for additional proof and information on previous addresses, too late for it to be reasonably produced. In the case of the Liberal Democrats, these people will never reach the Party President and Federal Conference Committee chair for consideration, so they will not even have the chance to argue their case as would someone who had been outright rejected.

Finally, although not available in all cases, the 2011 Tory conference response included number by type of applicant. The disparity between rejection/non-approval rates and types of applicant show we should be at least a little cautious with the above figures.

Rejection Non-approval
Political Party Members 0.046% – 5 / 10,921 1.48% – 162 / 10,921
Ancillary 0.90% – 15 / 1,672 16.0% – 268 / 1,672
Security 1.93% – 4 / 207 3.86% – 8 / 207

What are Sussex Police trying to hide?

Way back in May, four months ago, I submitted a Freedom of Information request to Sussex Police. It is not anything unusual and requests information I have asked other police forces, such as what equalities impact assessments they carried out into party conference accreditation. They duly acknowledged it.

But after 20 working days, no response. This isn’t that unusual in FoI requests, despite 20 working days being the legal limit, so I politely chase them. No response. So I request an internal review. Again, no response. Not even an acknowledgement.

Next, I write to the Information Commissioner. They take their time (about 6 weeks!) but eventually write directly to Sussex Police, telling them they need to reply in 10 working days. Those 10 working days are up and I still haven’t had any response from Sussex Police.

They know they can not ignore a Freedom of Information request forever, which makes me think they are trying to delay publication of something until after conference. What possible correspondence might Sussex Police have that’s so embarrassing they’re willing to ignore the Information Commissioner purely as a delaying tactic?

Poly relationships statistics from the 2011 Census

From the 2011 England & Wales Census, it has been revealed that 39,200 relationships were edited/”corrected” due to an apparently invalid combination of relationships that would indicate a Polyamorous household.

Firstly, I’ll note they only did this where there was also a marriage or civil partnership involved – I.e. a triad or V where one side of the relationship has been legally recognised, so the figures will be low. Secondly, the reason the Census office edits these figures is because they believe in the majority of cases this is probably an error by those filling in the form.

Still, the figures are potentially interesting, so lets see how they stack up.

I can not find any data on the number of relationships recorded by the Census, but we know there were 23.4 million households. To get some idea of the kind of proportion of households that have indicated a Poly relationship, lets assume a maximum of one poly family per household: that gives around 0.1%-0.2%.

I am deliberately not going to be any more accurate than that because the data I’m working from is vague at best. As well as not including families without any marriage/civil partnership involved (Pushing the number down) there may be households where a couple have not yet divorced but a new partner has moved in. (Which would push the number up)

How likely is it that much of this is an error in filling in the forms? We have no real way of knowing. But I also asked for the number of marriages/civil partnerships that were edited due to an invalid combination including gender, such as indicating a marriage between a same-sex couple. That gave 50,400 edits. There are just over 100,000 civil partnerships in the UK and I can well believe somewhere around half of respondents would be bloody-minded enough to tick “marriage” and not civil partnership. There will also be Trans issues affecting this figure, but at a low enough rate to not be significant.

The above is, of course, not statistically sound in any sense and shouldn’t be used for the basis of policy or, well, anything really.

However, it’s enough to indicate that there may be a non-trivial number of Poly households out there and that warrants further study. Perhaps the Office for National Statistics can be persuaded to report in more depth on the data – they are far better statisticians than I for starters – or to conduct follow-up surveys. If the number proves to be large enough, it may even justify better investigation in the 2021 census.

Leeds get defensive in Gender Identity FoI response

There have been a couple more answers from Leeds GIC in response to Freedom of Information requests. The first is the “Information for Referrers” leaflet (PDF Link) which details what steps GPs should take before passing someone on to the service. We already suspected the most interesting part of this, specifically: “The GP would need to provide an up to date physical examination report…In addition to the physical examination an examination of the sexual characteristics would be highly desirable.“. I struggle to see how a physical examination of “sexual characteristics” at this stage can be justified, particularly when by a GP who is not going to have the experience to do this sensitively. The only time I had any form of physical examinations were by the surgeon and electrologist, which despite being rather necessary was still, in the case of the surgeon’s visit, rather upsetting.

Most likely the main effect of this is just going to end up being unnecessarily upsetting people trying to access the service. Luckily, I’ve heard of several people that have refused the physical exam and they’ve still been able to get a referral, so this aspect appears not always to be adhered to. It’s inclusion in the referrers leaflet means people that don’t need it or want it may still end up having it however, because they feel bullied into it to access essential medical care.

One sensible aspect is getting the GP to carry out the blood tests before referral. This would hopefully cut down on delays at the GIC due to needing to go away and come back for a test, although I do not know if this is routine practice at other GICs too.

Slightly worrying is the assertion that this is a “a time-limited Pathway of Care for the maximum of three-year duration“. [sic] Having not heard of anyone being discharged from the clinic after three years while still mid-transition, I assume this is not actually enforced.

The other response was asking who had been involved in an FoI response and some rather inaccurate content on their web site, which has since been updated. In it, they start getting defensive about their policies, something I have not seen before in an FoI response. Here’s what they said:

Specifically, our Care Pathway follows the stages laid down within The Harry Benjamin International Standards of Care (this differs from the WPATH guidance), as we believe that hormone treatment is best undertaken after real life experience has begun to ensure that, possibly irreversible hormone treatment is not undertaken without there being a completely coordinated comprehensive care approach which has the ability to meet the changing needs of our service users flexibly and safely. This is paramount to a positive outcome.

Interestingly, they are explicitly rejecting the latest version of the WPATH Standards of Care with this response and reinforcing their view that hormones should only be prescribed after going “full time”. I have no idea if Leeds doctors have ever actually tried anything like talking to their patients, but going full-time is far more irreversible than hormones. Just because it’s social and not chemical/biological does not lessen it’s impact if you are treating the person as a whole.

I have not seen any studies of this, but I also suspect that those going full time before hormones are hugely more at risk of social impacts such as job loss and violence due to not “passing”.

The NHS Gender Governance Group: Debates on “unintentionally creating she-men”

Following some excellent work by Emma Brownbill, copies of meeting minutes from the North’s “Gender Governance Group” (G3) have been uncovered. Formed in 2005, this was initially a forum for gender practitioners from the North of England to discuss their experiences but lately has taken a slightly more sinister turn. It seems the group is concerned about the more progressive approach taken by Charing Cross becoming the UK standard and wants to have input into the forthcoming Royal College of Psychiatrists’ Standards of Care and UK-wide NHS commissioning guidelines to ensure they can carry on as they are. (The UK-wide NHS commissioning guidelines may now not happen: it depends on the NHS Reform Bill passing)

Yes, you read that right: they’re worried about Charing Cross being more liberal.

Edit: This has also been written about by Emma Brownbill and Sarah Brown.

Edit 2: I’ve been advised I should add a trigger warning to this post: Some folk are finding this upsetting.

One could possibly forgive the group, which at the time consisted of just Sheffield, Leeds, Leicester and York, for not having heard of a “genderless patient” in 2005. After all, back then not many gender-neutral folk would have had the courage to be completely open with the NHS. One surgeon suggested this could be “Scoptic syndrome“, which I’ve never heard of, but may be a typo.

But the group hasn’t improved. Here is one quote from the minutes in 2009 that’s quite revealing regarding the attitude of some doctors towards their patients – the doctor works at Leicester GIC.

[A doctor] spoke to the group about the issue of unintentionally creating “she-men”: patients who have breasts and are on hormones but don’t have final surgery as they don’t want to go any further. These patients continue to live full time as female but with male genitalia. Many of the services present at the meeting had examples of this happening

Further comments also in 2009 show that the clinicians were “wary” of folk requesting just an orchiectomy, despite a surgeon present stating this wasn’t anything new and there were few follow-up issues from this treatment.

Glasgow had similar issues in 2010, referring to a “highly intellectualised” patient who it appears also identifies as gender-neutral, but is repeatedly misgendered as “he” throughout the meeting. Clinicians did not seem to know how to handle this situation due to a lack of an “evidence-base” (as if any of their other work relies on one!) Luckily (for the patient, not for the GIC!) they apparently know their rights and how they can be treated. It seems the patient may also have had to resort to legal threats, as there is a note that the Equality Bill (as it then was) “only mentions FtM/MtF“.

Think you have legal rights?

So is it just those people that don’t fit the nice stereotype and wear frilly dresses or excessively manly outfits to their meetings that they’re uncomfortable with? Sadly not. It seems they are not keen on any of their patients having legal rights at all. One of the rights gained under the Gender Recognition Act allowed people to have complete separation of their old records and details from their new ones, so you can’t be “outed” to medical staff. (After one bad incident, my details are withheld from the central NHS database, the “spine”)

Following a discussion in March 2009, it appears most of the members would discharge patients that actually tried to insist on this, as they were quite keen on their “right not to give care“. There was no discussion about finding an accommodation. Legal rights, or NHS treatment: a simple choice.

Similar applies if you ask for your notes not to be transferred. Given the approach of some doctors I can quite understand patients not wanting unknown material to be handed over effectively scuppering their chances of getting treatment. This is a no-no for many doctors. If you won’t let them see your previous psychiatric notes, they won’t treat you.

It’s probably no surprise to learn that the Department of Health wrote to lead clinicians at the clinics in 2009 reminding them of their legal responsibilities, although the Equality Act was dismissed in 2010 as not applying to the clinics because they work in mental health. (In Scotland and some other countries, gender services are not necessarily lead by mental health)

Even a Gender Recognition Certificate won’t help you. Also in 2010 a trans man (Who has a GRC and has been transitioned for a couple of decades) tried to push for bottom surgery without a second opinion, but they refused. The implication from the minutes is that either he had already had a negative second opinion or that if he did it would be refused as the Gender Clinic regarded his presentation as “chaotic“.

Presumably any non-trans individuals who want genital surgery because of an accident would also be refused if the doctors thought they were acting a little camp?

Based on the above, one might suspect the clinics have a few unhappy patients. Despite this, it was reported in April 2010 that the results of a user survey had “astounded” researchers due to the differences between the NHS and Independent Sectors.

Other organisations aren’t happy either

Other organisations have their concerns about some of the clinics too, and this has not made the members of the G3 group happy. There was grumbling about the Equality and Human Rights Commissions’ report into trans healthcare, with it being claimed “the document could lead to confusion to service users“. Similarly, Leeds were getting “harassing emails” which they found “not very pleasant” because a Department of Health leaflet “doesn’t reflect what they do“. I would guess the DoH leaflet probably states what they should be doing however.

Charing Cross do not appear to be too pleased either, as surgeons who work closely with them refused to accept referrals from Northern GIC clinicians until May 2010 and insisted on having a Charing Cross based doctor performing the second referral. The members of G3 felt that surgeons in London “did not appear to have knowledge of the credibility of services in the UK“. Given one quite vocal member of the group refers to his patients as “she-men“, I’m not entirely convinced they have as much credibility as they would like to think.

Going for a power grab

So, what are the next steps for the G3 members? The national Standards of Care may be published soon, so they keep saying, and the NHS Reform Bill could be more pressing as it would centralise policy. Once that happens, “in commissioning there can’t be any differences any more“.

One would hope that they would aim to work towards the new WPATH Standards of Care, but instead they are clearly wanting to stop things heading in that direction and force the more restrictive RCPsych/UK Standards of Care on everyone. They refused to let a private doctor join the group in 2007, unless he signed up to the new but still draft UK SoC.

It’s not surprising they want to stop others moving forward with care because as of 2008 at least one GIC, Northampton, were “not keen” on the old WPATH Standards of Care. That’s the previous version by the way, as the new one is even more progressive so they presumably hate that even more.

The approach favoured by some members want the group to take “clear clinical governance” and heavier involvement in national commissioning and the UK SoC, which they feel may be applicable not just to the NHS but also the private sector. If they do this, they hope the standards and guidelines will be “flexible enough for all teams to work with” as their current “concern is if they talk to Charing Cross to agree and commission then things will be modelled around Charing Cross.

But you can forget any actual trans folk or the private doctors having significant input into this process as these quotes illustrate:

When National Standard agreed there would be a one day event and we felt at that stage there was a need for a national body and that is should be for professionals only instead of users and carers

D also made the team aware that the largest independent provider in London, Charing Cross won’t talk to this person. so is there any problem in excluding the independent sector? K said the national standards of care is written for the independent sector and the NHS. A thinks the private sector is a bit of a complication at this stage

This approach would let them carry on with their current practices, such as Nottingham restarting people from square one even if they’ve been private before. (That was 2008, although they did insist they won’t take people off HRT)

For trans men, many doctors – although this is apparently a controversial point within the group – want the ability to impose a 12 month wait and two opinions before allowing top surgery (something that might be required for a trans man to pass at all) despite the WPATH SoC only mandating one opinion.

Leeds and Nottingham are currently requiring “evidence of physical examinations” from GPs for even a referral, even though this isn’t in the WPATH guidelines anywhere at all. Just the pre-surgical exam can be traumatic enough for transfolk when it’s with experienced nurses and surgeons, without an inexperienced GP having to go looking down there too.

I’ll close with this October 2011 quote:

Leeds have struggled recently with GIRES putting pressure on them regarding hormones and real life experience. Leeds clarified that they have two stages of RLE, the stage before hormone and assessment 6 months, RLE 2 years before surgery

This is the kind of regime that they’re fighting to preserve.

More on Poly and Trans erasure in the Census

Following on from my recent post on how the Office for National Statistics “corrects” peoples gender and marital status in the Census, I asked them how often this had happened in the most recent three censuses.

They don’t know.

I’m finding it a little strange that the ONS would have their computers correct data in this way and not track how often it is occurring. The ONS previously claimed that “…the majority of respondents recording themselves as being in a polygamous relationship in a UK census do so erroneously, for example, ticking the wrong box for one household member on the relationships question.” Given that they do not track any information on such responses, their “recognition” that such relationships don’t exist may boil down to “Well, nobody who works here is in such a relationship, so they can’t possibly exist”.

(The answer they provided makes reference to impudation, but it’s a generic measure tracking overall error rates in the census, based on a more detailed follow up survey to check the results. It does not appear particularly relevant to the question.)

Yes, there’s also a follow up FoI request I have just submitted, asking what other corrections are made and how they are justified.

Parliamentary answers “abbreviated for clarity and brevity” (Otherwise known as “Wrong”)

In response to a Freedom of Information request about Prison Service consultations, an odd discrepancy arose: Caroline Lucas MP asked the same question in parliament and received a different response.

This doesn’t sound like a major issue as the differences between the two lists – organisations consulted over a particular policy change – seem minor, being just one organisation missing from the parliamentary answer. Still, the Trans community is not that large. How comprehensive a consultation can be regarded as can easily turn on if a single organisation, particularly one the size of GIRES, has been included in that consultation.

So, an internal review was requested and in due course a reply is received: The Freedom of Information request was handled correctly in the first place. Despite the discrepancy with the parliamentary answer, “Both responses are accurate“.

How exactly does that work? “The response provided to parliament was abbreviated and formatted for clarity and brevity.

I wonder how many other answers to written parliamentary questions have been “abbreviated for clarity and brevity”. Particularly where the “clarified” version hides information the minister concerned would rather not reveal?

(P.S. I am still not clear if the answer to my FoI request is accurate – it may be that the parliamentary version is the correct one. I shall check with GIRES as I believe they were not in fact consulted)

Free sex change and relationship breakup, thanks to the census

It appears that the Office for National Statistics, when reporting on census data, will simply get their computer try to guess at what people intended.

If you’re a gay man and ticked the married box then the Office for National Statistics will ensure the “mismatch is… resolved using a probabilistic statistical system [to] alter one or more variables to make the response consistent“. And yes, they specifically state this could result in the system “changing the sex of one individual“.

This completely ignores the fact that married – not just Civil Partnered – couples of the same sex are entirely valid. Perhaps it’s a foreign marriage, or you’re Trans and married but don’t have a GRC for any of a whole host of reasons?

Oh, and they might divorce you anyway: If you indicate multiple relationships (A Poly household for example) they’ll just pick one to ensure everyone is in nice neat couples for their system. I guess anything else would just be Too Complicated for the statisticians.

I’ve submitted a followup FoI request to find out how common this has been in previous years. (Although previous years will not have had Civil Partner as an option)

Lies, damned lies and statistics?

Poly and trans folk and the Census

I rather suspect that for both these categories, the demographic is so vanishingly small that it will disappear into the noise, but having filled in the Census last night I was interested in how some of the data is processed, so I fired off a Freedom of Information request.

Firstly, poly households:

1a) If a household consists of a polygamous relationship, will the data be accepted by the Census system? For example, if P1 and P2 are married or in a civil partnership and P3 indicates they are a partner of both P1 and P2, is this considered a valid response or will the “partner” response be ignored and not entered?

1b) If the data will be accepted and entered into the census computer systems, will it be either reported on or (In summary form) available via an FoI request?

In short: Will you be able to answer the question “How many poly households are there in the UK?” I doubt many people will accurately answer the question so the ONS figures won’t mean much. However, I don’t know if there have been any previous surveys in this area. (If anyone is aware of any, let me know!)

Having just started to read The Girl with the Dragon Tattoo, I do wonder if there are more people quietly getting on with their lives in such relationships than is usually reported on. Even more so than Trans issues, there doesn’t seem to be much of a poly community because stable poly relationships tend not to be the kind of thing one can really seek out. They just kind of happen and people are either open to being poly or not.

Someone is bound to disagree with me on the previous paragraph so I’ll caveat it now: In my own opinion, of course.

(Our census has been done on paper. Does anyone know if the online version restricts your answers at all and would not allow the response I’ve described above?)

Secondly question:

2) If there is an apparent mismatch between the indicated sex and marital status of individuals, how will this be entered into the system and handled? For example, if two individuals indicate sex as female but also indicate they are married, will this be entered into the census system as a marriage or as a same-sex civil partnership?

Translation: How many people are so militantly pro-equal-marriage that they’ll tick “married” despite technically being civil partnered. (And Vice-Versa, but I guess that’s a smaller group) There will also be people who have transitioned but have not received a GRC as they do not wish to divorce or are unable to obtain a GRC for any of the myriad other reasons, but there is no way of distinguishing between these two groups from census return data.

I expect to be disappointed with the response – I generally am with FoI requests like this – but they are potentially interesting topics if something useful does come of it.