Posts Tagged Trans
For those who have not followed the long-running saga of this, there has been pressure on the passport office for some time to consider allowing the use of X (Unspecified) in place of M or F for the gender marker on passports. This is of benefit to quite a few people, as society becomes more accepting of people who do not fit within the gender binary and a number of countries already permit this. It is also of potential use for someone who might travel under one gender but work under a different one, for example.
X as a marker is part of the International Civil Aviation Organisation (ICAO) standard for passports, although it was originally intended for the handling of refugees where a large number of passports needed to be issued in a short space of time by someone who was not familiar with the gender of names in use in a culture. That’s less of an issue now than it used to be in the 1950s, but the standard remains.
Back in 2011, the Home Office and Passport Office promised to look into issuing UK passports with an X marker on them as part of the transgender action plan and partially in response to Australia doing the same. The resulting report was suppressed by the Passport Office for some time, but as a result of questions in the House of Commons last week and this week by Hugh Bayley, Julie Hilling and Stephen Doughty it’s now been released.
For some reason, the document is not on the online listing at the time of writing, but you can email the House of Commons Library to ask for a copy – I have uploaded a copy of the report here. (PDF link)
It is clear on reading the report why the Passport Office did not want it released, as it is written with little critical thought and with the obvious intention of trying to justify existing policy rather than explore new options.
Let’s skip ahead in the report to the most damning section first, option 5 on page 7 which gives the reasons they don’t want to allow X markers. Taking each point in order, we can quickly demolish the entire argument:
- Mother-knows-best, because X markers would single out individuals (correctly) as having “no gender” and thus cause offense. It would appear the Passport Office are worried that people will be offended if they are treated appropriately.
- People filling out forms are stupid, and might get it wrong. This is the same argument used to justify erasing poly households in the census when if it happens it really just suggests the form was poorly designed.
- If someone’s gender is not obvious, they don’t know who should search a person at the border. The police already figured out how to handle this and the solution may shock you: They ask who you’d prefer to be searched by if it’s not obvious.
- Apparently it’s expensive, although this is only an argument why it should be delayed until computer system changes are happening anyway rather than why it should not happen at all.
- “Other customers may request ‘X’ in their passports or in fact question whether HMPO should be asking what their gender is at all for the purpose of passport issuance and whether this is proportional“, i.e. if we allow unspecified as a marker then people might realise putting gender on passports really isn’t necessary. This phrase alone makes me fairly sure the document was not intended for public release.
- Trans or non-binary folk might require “additional consular assistance” if they are stopped in certain countries. Like this doesn’t happen already if you visit the wrong place.
- Section 22 of the Gender Recognition Act 2004 prohibits them from outing trans folk. This is an argument against forcing people to have an X marker, not an argument against requesting an X marker.
- “Evidence of gender diversity needed for an applicant to be able to select ‘X’ as a gender marker would be difficult to produce“. This is only the case because the civil service wants to make it hard to produce and they say themselves (Without justification) that “self-identification would not be appropriate”. A simple ticky box on a form to select unspecified gender would be sufficient, or a statutory declaration of some form if they want to make things complicated. This is what GIRES suggested.
What follows is a fairly detailed deconstruction of the remaining points, which you may like to skip if you are not interested in the minutiae.
Section 1, page 2 is just a recap of existing policy, but as soon as we get on to paragraph 2.1 and 2.2 (Calls for change and petition) it becomes clear whoever wrote the report was poorly briefed. Both paragraphs talk about the old Identity Cards scheme allowing trans folk to have two passports, one per gender, which is not the same as having one passport with an unspecified gender marker on.
We do start to get a hint of another theme that runs through the document in 2.2(c), however, as the Passport Service adopts a mother-knows-best approach and apparently is a better judge than the trans and non-binary communities what would be in their best interest: The Identity Card Scheme provided for a transgendered person to have two ID cards…it may also create difficulties for the individual and may increase the potential for their involuntary outing.
According to section 2.3, the Passport Office “sought to speak to key stakeholder groups and to relevant parts of Government“. They did not seem to try very hard, given they only spoke to one internal civil service group, one campaigner (Christie Elan-Cane) and one external organisation. (GIRES) They completely forget to mention that it was included in the transgender action plan by the Government Equalities Office.
The next section, 2.4, points out “there are no outstanding applications in which the applicant has sought either change to the process of considering applications from transgendered people or of changing the passport itself with the gender marking“. Quite apart from being an appalling piece of English and nearly incomprehensible, what it appears to be saying is that nobody has applied for a gender-non-binary passport. This might be because, I don’t know, the forms don’t give you an option to apply for it?
And section 2.5, we’re back to mother-knows-best: “We remain open to suggestions for change but such a change would be on the basis that it was either required by law or that it provided additional benefits to the applicant. Choice is an important factor but we have received feedback that would suggest that enabling that choice may be more detrimental than beneficial.” It is not clear what feedback they are referring to, given the lack of scope of their consultation.
Just to be clear, there is quite a bit of emphasis in section 2.6 on the fact that because they have not been listening they have not heard the calls for X markers: “There have been very little public calls for the ‘X’ provision in the passport. … There are no calls for change from gender representative groups or civil liberties groups.” Even ignoring the political pressure to change, yhe only external group they consulted, GIRES, also asked them to change the current system. It is not clear why they make reference to “civil liberties groups”.
Section 3 is a worrying graph on “Gender in the life of a passport” that repeatedly asserts that any mismatch in apparent gender presentation could indicate potential fraud. It has clearly not occurred to the passport office that they are actually arguing against their own position here: If someone has a non-binary gender or variable gender presentation, then without an “X” marker they are more likely to face problems due to their appearance being taken as fraudulent.
They also miss the obvious point that is frequently raised in such situations that gender is at best a 50/50 discriminator and thus not particularly powerful. They even note elsewhere in the document that not all government-issued ID in the UK has a gender marker on it.
Section 4 covers legislative issues. They should probably have left this well alone, given it goes a long way to arguing against their position.
Firstly, (section 4.1), they state “legislation in other areas recognises only the genders Male and Female“. Whilst this might be true, there is an increasing move towards removing gender from legislation as it just gets messy when you start dealing with same-sex marriage, people transitioning and anyone who does not fit nearly into a male/female binary world view. A good example of this would be amendments to sexual offenses legislation which now defines rape not by the gender of the attacker but by use of a penis.
Section 4.3 talks about nationality, adoption and how nationality can only be passed on by a mother or father or, in certain cases, by the father. This is already complicated by same-sex marriage and the ability of people to transition. I am more than comfortable with the ability of the courts to quite simply handle what the Passport Office call “a complex undertaking”.
Section 4.4 talks about banks establishing identity. This really isn’t the Passport Office’s problem, but if it is then the same point as in section 3 stands: If someone has a non-binary or variable presentation, having the X marker on a passport helps rather than hinders.
Section 4.5 uses the phrase “third gender”. I am not comfortable with this language, as turns gender from binary to trinary. The whole point of this is that gender is fluid and on a spectrum, and not subject to being placed into little pots. Some people may identify as third gender, but not everyone. Both this and the following section, 4.6 start talking about issues outside the scope of the Passport Office.
Section 4.7 claims that a passport bearing an X gender marker might not be “recognised by other parts of government of wider UK society“. This implies that existing legitimate passports bearing an X gender marker, either because it is an old passport belonging to a refugee or because it is from a country that does issue them would not be accepted. I find this surprising, especially given that failure to accept such a passport would be a clear-cut violation of the Equalities Act 2010.
Section 5 details their options. Mostly, these cover choices not being campaigned for such as multiple passports with different gender markers so are not relevant, but there are enough egregious errors that it’s worth pointing some of them out:
Option 2, issuing two passports, mentions “One passport, one person“. This is not a strict rule, as many frequent travelers hold two passports. Typically, this is because they are traveling in parts of the world where it is not a good idea to reveal who else you have been visiting in the region and thus they can choose to use a passport without any incriminating entry/exit or visa stamps. The argument about creating two identities could apply to anyone changing their name (e.g. through marriage) or gender, and could happen anyway if someone obtains a new passport and retains their old one. Some parts of government remain obsessed with the idea that people transition just to commit fraud.
Options 3 and 4, removing gender from passports, gets hung up on the idea of violating international standards by removing the field and overlooks the obvious choice of simply replacing gender markers on all passports with X. It also goes on about it being a “security risk” for unsubstantiated reasons and makes the bizarre observation that might still ask for it on the forms, even if it is not on the passports.
I’ve covered option 5 above and I won’t get into section 6, costs, save to say that they are at best giving justification for not doing this now, rather than justification for not doing this in future. Forms will be reprinted and redesigned at some point anyway, as will computer systems, and the costs will be much lower if rolled into the normal update cycle of such things rather than being done immediately.
Section 7 covers notes in the informal discussions they held on the issue. The internal discussion with a:gender appears to have actually taken place with Sarah Rapson, the ex-Chief Executive of the Passport Office but this may be an error.
Section 8 covers the situation in other countries, although is of little real relevance. It mentions some countries are not safe for trans folk to travel to (This is not news, and is the case regardless of gender markers) but I did find it interesting that Argentina allows people to have an X marker on their passports simply by requesting it, with no other documentation required. Malaysia are reported to be considering removing gender from all passports, allegedly in violation of ICAO standards although it would be easy to just put X for everyone as I’ve noted. Oddly, the report does not mention that India is technically violating standards by using “E” (Eunuch) to identify Hijira on their passports. I find this omission odd because if anyone is going to have found problems with unusual gender markers on passports, it is going to be India, given the hijra community is estimated at being 5 million. (The number is not that surprising given the size of India – 5 million people is only around 0.4% of their population)
The results are in!
There was a strong showing by Sarah Brown, who was in the lead early on and was two votes shy of winning. Lynne Featherstone was also not far behind. However, we can announce that the person whom the trans community feels has made the most difference in the last year is…
|Julian Huppert MP
“Can’t remember any other politician speaking so forcefully on issues affecting T* people”
“…for good work re marriage plus support shown to non-binary people”
Congratulations Julian, and keep up the good work.
(For those wondering about the delay in publishing results – it did not seem appropriate to post this last week, given TDoR events were ongoing for most of the week)
The nominations are in, and voting for Politician of the Year is now open! The ballot will run until Friday 15th November and is an Instant Runoff Ballot, so you should rank as many people as you are able to express a preference for, based on positive work done for trans people in the UK over the last couple of years.
Below the voting form is a brief biography and photograph (Where available) of each nomination. Posts run in multiple locations, as long as you can see the Opavote form below then you can vote here. If you cannot see the form, it is also accessible on the Opavote web site.
Voting is open to anyone who identifies as trans*.
Voting has now closed
Openly lesbian, spoke in defence of trans rights during the passage of the Marriage (Same-Sex Couples) Bill through the House of Lords.
|Hugh Bayley MP
Member of Parliament for York Central, long time campaigner for trans rights, has raised pensions issues in Commons debates
|Cllr Sarah Brown
Only out transgender politician elected to public office in the UK. Executive Councillor for Community Well-Being on Cambridge City Council.
|Michael Cashman MEP
“…who said “We have to start saying Trans before we say LGB” at Work Place Pride this year, particularly relevant in light of @pinknews awards” – @natachakennedy
|Lynne Featherstone MP
“…launched the consultation by the UK government on introducing equal marriage and was the first politician to take part in the Out4Marriage campaign.” – Independent on Sunday Pink List
|Mike Freer MP
“…made one of the more moving speeches in the debate… “I’m not asking for special treatment, I am simply asking for equal treatment.”” – Independent on Sunday Pink List
Chair of the Parliamentary Forum on Gender Identity. Spoke in defence of trans rights during the passage of the Marriage (Same-Sex Couples) Bill through the House of Lords.
|Kate Green MP
Member of Parliament for Stretford and Urmston, worked hard on removing spousal veto. Also concerned about press coverage.
|Julian Huppert MP
“Can’t remember any other politician speaking so forcefully on issues affecting T* people”
“…for good work re marriage plus support shown to non-binary people”
|Caroline Lucas MP
Member of Parliament for Brighton Pavilion, raised trans-supportive issues in Commons debates on same sex marriage and sponsored EDMs on press coverage
|Kerry McCarthy MP
Member of Parliament for Bristol East, met with trans groups throughout the year and attended vigil for Lucy Meadows outside the Daily Mail.
Additional information on politicians with short bios above welcome. Photos (If creative commons licensed) particularly welcome.
In what appears to have been a colossally mis-judged own goal, an article published today in the Guardian and written by Stonewall UK’s media manager endorses the use of transphobia if it helps further their anti-homophobic campaign.
The trouble stems from an advertising campaign featuring run by Paddy Power in early 2012 that the Advertising Standards Authority banned, branding the campaign “likely to cause serious offense” and “irresponsible”. When it was announced that Stonewall were teaming up with Paddy Power with a rainbow laces campaign, it was met with some grumbling from trans activists, but given Stonewall’s long history of working with transphobes it was hardly news.
However, today’s article appears to be the first time Stonewall UK have said the transphobic actions of someone else are actually helpful in working against homophobia:
It was clear from the very start of the campaign that working with an organisation like Paddy Power would allow us to communicate directly with fans, players and clubs in a way we simply wouldn’t have been able to had we worked alone. This, coupled with Paddy Power’s reputation for eye-catching, and yes, at times risqué campaigns would allow us to draw attention to the issue of homophobia in football.
Just in case the reader was in any doubt what was meant by “risqué campaigns”, the link (Yes, that’s in the original article) points to another article discussing the banning of the transphobic Paddy Power adverts.
Looks like Stonewall UK are back to being S’onewall again.
Update: The author of the original article has now “unambiguously condemned” the Paddy Power transphobic campaign, stating that the link to stories about it was added by the Guardian after the article was written.
@auntysarah Hi Sarah, we've said 100% that Ladies Day ad was wrong. Guardian has added that hyperlink to the word risqué without permission.
— Richard Lane (@Politicana) October 17, 2013
@auntysarah I was trying to refer to PP general reputation. I unambiguously condemn the ad. V sorry this is now not clear.
— Richard Lane (@Politicana) October 17, 2013
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.
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.
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
For those who have followed my previous commentary on such cases, much to do with the latest case will not come as much surprise. What is new is that this one was in England, thus increasing the threat that trans folk south of the border might risk criminalisation for entering into a relationship, as well as existing concerns north of the border.
What is not new is that a guilty plea was entered, so this has (by my understanding) not set case law. As far as I have been able to ascertain, no defended case of “sex by deception” bought against a person with a possible trans element has yet succeeded or even proceeded to trail in the UK.
Usual caveats apply in terms of the reporting. In this case, the only source I can find that has reported directly is the Daily Mail. Other outlets have picked up the story, but the timing and quotes used all indicate they’re regurgitating the Daily Mail story. This makes figuring out what actually happened rather more tricky than usual.
In brief, a couple had been involved in a long online relationship since they were barely teenagers but not met in person. They eventually met when both were over 16 and had sex. As a result of McNally, the defendant, being outed they were arrested and charged with six counts of sexual assault by penetration. (The age gap appears to be around the 12 month mark. The Daily Mail deliberately tries to give the impression it is more by quoting the age of one person at the time of the incident and the age of the offender now. This is a routine trick they use)
The prosecutor specifically stated the victim was “sexually assaulted…by deceiving her into believing that she, the defendant, was a boy” and the judge is quoted as referring to it as a “selfish and callous deception” when sentencing and there is no mention of any factors besides gender in the article. I find it difficult to imagine that someone using, say, a prosthetic penis or hand whilst engaging in any intercourse would end up in court. Rather, this case is more about “gay panic” – straight, cis folk being “tricked” into gay relationships by presumed-fake trans identities.
It is not made entirely clear what trans history McNally has and it is entirely possible they will end up identifying as lesbian. However, the defense does mention confusion over gender issues.
The sentence was for three and a half years plus a lifetime on the sex offenders register – years-long prison sentences are pretty much expected with sexual assault cases, which is how this was tried.