Posts Tagged Trans
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*.
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.
(Warning: All the news stories linked in here are highly transphobic, with references to acquired genders being a “pretence” or “fake”)
It looks like we have another case of someone trans being prosecuted for “obtaining sex by deception“. I am always wary of mainstream press coverage of cases involving trans people, because the facts can so easily be distorted either through ignorance or, in the case of The Sun’s article on this incident which I’m not going to link to, maliciously.
However, what has been widely reported seems to indicate that in this case, the person being prosecuted was definitely a trans man – they had presented as male for many years, with the STV coverage specifically using the word transsexual and they were already seeing a counsellor. One report also mentions they are on a gender reassignment programme, presumably a reference to a Gender Identity Clinic.
In summary, Wilson plead guilty to two counts of “obtaining sexual intimacy by fraud”. In the first case, this sexual intimacy apparently went no further than kissing and cuddling, with Wilson refusing to engage in anything more.
The second, later case is problematic in that actual intercourse took place and their partner was underage at the time, having mislead Wilson about their age. There was no prosecution for that mentioned however, so it would appear that Wilson’s actions in immediately terminating the relationship and refusing to see her any more when this was revealed were the correct course of action here.
This case makes it clear that the police and courts in Scotland regard failing to disclose trans status prior to kissing/cuddling someone as a criminal offense. Proving you told someone is of course tricky, so unless you’re very “out” there could be trouble ahead.
Edited 1315, 8th March: From the Scottish Transgender Alliance:
“In partnership with Trans Media Watch, we have just received advice to the effect that the charge of sex by fraud in this case does not relate to Wilson presenting as male but instead relates to the use of a substitute object under the pretence that it was a penis and therefore without consent. This means that reporting that states Wilson is in trouble over gender presentation is inaccurate. Please help us to raise awareness of this. We need as many of you as possible to write to the newspapers (and any other media outlets covering this) and explain.“
Edited 1800, 8th March: Initial assurances that the conviction was related to the “use of a substitute object” were incorrect – it has now been confirmed the prosecution was related to identity.