GRC not fit for purpose

Two significant reports dropped into the Trans* Jersey inbox this week. Both highlight the need for a complete review of the gender recognition process in the UK by which a trans individual “becomes” their recognised gender in the eyes of the law. This is significant for us in Jersey as we have “outsourced” our gender recognition process to any other jurisdiction whose legal system/courts we recognise including and, most usually, the UK.

What is the gender recognition process?

At present, a Jersey trans individual who requires a gender recognition certificate (“GRC”) travels the following route through the UK system:

Live as their recognised gender for two years;
Collect proof that they have been living as their recognised gender for two years, e.g. letter from gender therapist, letter from GP, passport/driving licence showing recognised gender, invoices from utility companies showing title in line with recognised gender, pay slips from employer showing title in line with recognised gender, etc;
Apply to the Gender Recognition Panel (“GRP”) in the UK (although this could be any other jurisdiction that Jersey recognises) including the documentary proof gathered as evidence and a fee of £140;
Wait for the GRP to decide on whether they will issue a GRC. There is no automatic requirement to appear before the panel. The GRP’s judgement is made based on the documents submitted. However, if the documents are not satisfactory, the GRP can call for further evidence that might include an appearance before them;
Once the GRP rule that a GRC can be issued, the GRC must be passed through the Royal Court in Jersey and Jersey will then also issue a GRC.

At this point, the trans individual is their recognised gender legally in Jersey.

The above assumes a trans individual who does not have a spouse. If the trans individual applying for a GRC is married or in a civil partnership, things get more complex. The GRC legislation in England and Wales requires the trans individual to divorce/dissolve the marriage/partnership before a GRC will be granted and, if the spouse disagrees with that, they get to veto the trans spouse’s GRC application.Scottish law does not include this so called “spousal veto”.

Jersey’s same-sex marriage law will be following the Scottish model in allowing someone in a marriage/civil partnership who wishes to transition to do so seamlessly without the requirement to divorce/dissolve the partnership. However, this is then inconsistent with “outsourcing” Jersey’s GRC procedure to a jurisdiction (the UK) that has legislation that includes the spousal veto. This is a problem that the States of Jersey will need to address before 2017 when equal marriage legislation is due to come into force.

So, why bother with a GRC at all?

Some trans people don’t. Changing their gender on their passports is enough to do what they need to do in life. For others, not having their gender legally recognised could be problematic. For example, if the trans person wishes to marry as their recognised gender and not as the gender they were assigned at birth.

Some trans people may also wish to amend all records that show them to be trans and to protect any records that divulge their status from public scrutiny. This may be for reasons of personal safety. A GRC affords those people a greater level of protection in this regard than, say, the data protection or discrimination law. The amendment of records extends to birth certificates. Having a GRC is the only way to amend your birth certificate.

What needs to happen?

The two reports are consistent in their assessment of the GRC process as no longer fit for purpose.

The main criticisms of the system are:

it is long-winded and difficult to navigate;
in practice, it requires evidence of medical treatment before the GRP will grant a GRC, despite this supposedly not being a requirement;
applying to a panel, who may or may not be qualified in gender matters, for recognition of one’s gender identity is inappropriate and humiliating;
the financial cost of the application is greater than the fee of £140 as gathering the evidence required also incurs costs;
it does not allow for someone to identify as neither man nor woman;
the requirement for someone to have lived for two years as their recognised gender before being eligible is arbitrary and unreasonable;
the minimum age limit of 18 is out of line with other legislation that acknowledges young people can make life changing decisions from 16 onwards;
the link between having one’s gender recognised legally and the protection of a trans person’s personal data created by the gender recognition legislation leads to people being inappropriately asked for GRCs before transactions that should not require sight of a GRC will be carried out by employers, government departments, etc.

In short, both reports draw the same conclusion that gender identity should not be based on a diagnosis of gender dysphoria but should be self-determined by the person concerned.

The States of Jersey have an golden opportunity now in their work on the same-sex marriage law to do the right thing by the trans community and make the process by which a trans person “becomes” their recognised gender in the eyes of the law simple, affordable, inclusive and self-reporting. Trans* Jersey will be working towards this in 2016.

You can read the full reports here:

UK Trans Info’s report: “Gender Recognition: Where Next?”

House of Commons Women and Equalities Committee: “Transgender Equality”

23 September, 2015 Trans* Jersey

Same-sex marriage will happen in 2017

The States of Jersey have voted overwhelmingly in favour of same-sex marriage. The Chief Minister, Senator Ian Gorst, asked States members to decide whether they were for or against four principles.

(a) to agree, in principle, that appropriate legislation should be brought forward for approval to allow same-sex couples to get married in Jersey, with the legislation to:
(i) include civil marriage and religious marriage with appropriate safeguards in place to protect the rights of religious organisations and their officials who do not wish to conduct same-sex marriages;
(ii) include allowing people in civil partnerships to convert their partnership into marriage;
(iii) include retention of terms such as ‘husband and wife’, ‘mother and father’ in legislation;
(iv) not include a spousal veto in respect of gender recognition;

This principle was passed 37:4 with 1 abstention and 7 absentees. The full result can be found here.

(b) to agree, in principle, that current legislation should be amended to confer parental responsibility automatically on unmarried fathers who are named on birth certificates;

This principle was passed 43:1 with 5 absentees. The full result can be found here.

(c) to agree, in principle, that new legislation should be brought forward for approval to allow for the introduction of a system of divorce and dissolution making it a legal requirement to access and use mediation services subject to appropriate safeguards and human rights considerations;

This principle was passed 41:3 with 5 absentees. The full result can be found here.

(d) to request that the Chief Minister bring forward for approval by the States Assembly, no later than end January 2017, the draft legislation necessary to give effect to these proposals.

This principle was passed by 42 members with 2 abstentions and 5 absentees. The full result can be found here.

The full proposition can be downloaded here.

Clearly, principle (a) (iv) is the most important for Jersey’s trans community as it ensures that none of us will be asked to choose between having our gender recognised legally via a gender recognition certificate (“GRC”) and our marriage. It is the case, in England and Wales, that those who transition within a marriage (or civil partnership) and wish to acquire their GRC must divorce (or dissolve the partnership) and remarry as a same-sex couple (or opposite-sex couple). To do this, they must get their partner’s permission. If the spouse does not give permission, they effectively “veto” the trans person’s ability to get a GRC and have their gender legally recognised. It is an impossible choice to ask someone to make – their gender or their marriage?

Jersey will be following the Scottish legal model where the marriage seamlessly changes from opposite-sex to same-sex (or vice versa) on the issuing of the GRC. However, this causes a problem as we have outsourced the issuing of GRC’s to other recognised jurisdictions around the world. Our Gender Recognition (Jersey) Law 2010, therefore, relies on our ability to obtain a GRC from a recognised jurisdiction – the most logical being England and Wales. But, because England and Wales require a trans person to divorce before a GRC is issued, then Jersey people applying for their GRC will be subject to the spousal veto “by the back door”.

As the above loophole shows, there is much work still to be done. This is why the expected delivery date for the legislation is 2017. This gives us time to work with the Chief Minister to ensure that a satisfactory outcome is achieved on the subject of gender recognition. Watch this space for updates…

Featured Trans* Jersey

Manifesto 2014

Trans* Jersey’s manifesto defines the problems faced by transgender, transsexual, genderqueer, androgynous, bigender and intersex Jersey residents in 2014 and explains what actions we intend to take to address these issues.

Trans* Jersey believes that the island’s trans population is being patchily served by GPs and the States of Jersey Health and Social Services (“H&SS”) Department. This is due to the lack of clear guidelines for healthcare professionals working with trans patients. Individual clinicians within the H&SS Department are not seen to be at fault and, once the H&SS Department has been accessed, experiences of care have been good to excellent, largely through the efforts of the clinician acting on their own initiative. However, the initial route into healthcare for trans patients is unclear. The evidence suggests that the quality of healthcare provided is also influenced by the tenacity and perseverance of the trans individual being treated.

Trans* Jersey supports the calls by trans* organisations in the UK that the process for procuring a gender recognition certificate (“GRC”) needs revision. The Gender Recognition (Jersey) Law 2010 allows for a GRC from a recognised jurisdiction to be passed in the Royal Court. Any revisions that happen to the UK Gender Recognition Act 2004 as a result of the consultation happening with trans* organisations will, therefore, directly affect trans islanders. At present, Jersey has no mechanism by which to issue a GRC. However, this may change if trans* organisations within the UK are successful in calling for the Gender Recognition Act to be scrapped and for the issuance of a GRC to be an administrative process driven by the trans individual.

Trans* Jersey is committed to ensuring that all States of Jersey legislation that directly affects trans* islanders is scrutinised and responded to on behalf of the Jersey trans* community in order to safeguard our human rights. Trans* Jersey is currently preparing a response to both the States of Jersey consultation on sex discrimination and the imminent debate on equal marriage. Trans* Jersey will also be reviewing all legislation in force to ensure that there are no revisions that need to be called for.

Trans* Jersey believes that equal marriage legislation is essential to ensure that trans islanders are not discriminated against, and that any equal marriage law introduced in Jersey should not contain the so-called Spousal Veto. Trans islanders who are married or in a civil partnership at the time of their transition have no option currently but to get divorced before they can acquire a full GRC. On the granting of a full GRC, the couple may formalise their partnership again by having another wedding ceremony. This situation is patently in violation of all human rights.

Trans* Jersey believes that education is the key to many of the issues faced by trans* individuals in society and is therefore committed to providing opportunities and resources to cisgender islanders in order that they can learn more about the trans* population. In the coming months, Trans* Jersey will be seeking conversations with private schools and the States of Jersey Education, Sport and Culture (“ES&C”) Department about including trans* issues within the sex education curriculum.

These are not the only issues faced by trans* individuals in Jersey, but they are the most important ones to be addressed. We are a small group with no financial backing. This manifesto is, therefore, necessarily realistic in its aims. It is not possible to hit all targets at once so we are being selective. Once progress has been made on these issues, we can turn our attention to other areas where reform is needed.

You can download the complete manifesto as a pdf here.

15 May, 2014 Trans* Jersey

Legislative revisions

Equality Act 2010: Jersey is addressing the provisions of this law with its own anti-discrimination legislation. You can find out more about the public consultation process here.

Gender Recognition Act 2004: This Act directly affects trans islanders who wish to apply to the UK for their gender recognition certificate (GRC). Although Jersey has it own Gender Recognition (Jersey) Law 2010, it merely provides for a GRC from another jurisdiction to be registered in the Royal Court. You can find out more about this law here.

Trans* Jersey supports the calls to simplify the process of acquiring a GRC and to retain the protections afforded to trans individuals in possession of a GRC.

Marriage (Same Sex Couples) Act 2013: The Spousal Veto is the most pressing issue raised by the new legislation in England and Wales, and more information can be found about it here.

The Spousal Veto does not exist within Scotland’s legislation and Trans* Jersey are therefore advocating that, when Jersey brings in its own version of the Marriage (Same Sex Couples) Act, it follows the example of Scottish law.

Matrimonial Causes Act 1973: Under Section 12(h) (non disclosure of gender history) of this Act, a marriage can be voided on the grounds that the respondent is a person whose gender at the time of the marriage had become their acquired gender under the Gender Recognition Act 2004. The Act, however, does not state whether a marriage could be voided on the grounds that the spouse is transgender but not in possession of a GRC. There is, therefore, a discrepancy between the way that the law treats trans individuals who hold a GRC and those who do not.

Jersey has followed the UK with the Matrimonial Causes (Jersey) Law 1949, which has similar provisions to the above in paragraphs 18(h) and 18(i). Trans* Jersey would like to see these clauses removed from Jersey law.

Application of EU law to pension claimants: GIRES explains this issue as follows:

Trans women who have undergone gender reassignment surgery qualify for a Category A retirement pension under the direct effect of European Union Directive 79/7. Well established European Court of Justice (ECJ) case law indicates that once direct effect is established, it cannot be removed by a national law that introduces more burdensome conditions than in the Directive. The direct effect of Directive 79/7 has been set aside by the Department for Work and Pensions (DWP), which will only award a pension at the female pension age if the applicant holds a GRC.

Alas, for married applicants, they must currently divorce before they can receive GRC. This makes the award of a pension dependent on marital status and this is forbidden (on any grounds whatsoever) under Article 4 of the aforementioned Directive. Tribunals are unaware of their legal duty to enforce EU law and have little understanding of how EU law interacts with national law in matters of shared competence. It has not been appreciated that direct effect is by default, a part of national law and must be enforced.

Trans people are not being treated according to the law. Also, DWP is using procedural “initiatives” to delay Tribunal cases to deny justice. One such case had an appeal initiated over three years ago, has been postponed 6 times and “stayed” twice, was heard at the First-tier Tribunal nearly two years ago and has still not delivered a judgment.

Existing law should be enforced. The law firm dealing with such claims will be prepared to brief EHRC on the specific case law that has been set aside. A Judicial Review is being planned to address confidentiality issues related to trans service users of the DWP. A further case is being planned to address the use of domestic law to limit the rights to pensions awarded under EU law. The principle must be established that the law applies to trans people.

Trans* Jersey is currently undertaking research into how trans islanders are being treated with regard to pension provisions.

Trans* Jersey would also add into the legislative areas of concern for trans* people the following:

Sexual Offences Act 2003: Under Section 76 of this Act, a trans* individual can be prosecuted for obtaining sexual intimacy by fraud if they do not first declare their trans* history before intimacy occurs. The case of Chris Wilson is one such example and is explained in more detail here. It should be noted that there is no requirement for murderers, people with a history of domestic violence, soldiers with genitals that have been mutilated in the line of duty, bankrupts, etc to disclose their history before intimacy.

This is a nasty little “gotcha” that Jersey trans* people need to be aware of when dating in the UK. There is no equivalent law in Jersey.

19 April, 201413 May, 2014 Trans* Jersey

Jersey trans* law

Currently, there is only one piece of legislation in Jersey that is directly concerned with protecting transgender islanders: Gender Recognition (Jersey) Law 2010

This law deals with the process of issuing a gender recognition certificate (“GRC”), the legal effect of a GRC on existing marriages and civil partnerships, the general consequences of issuing a GRC, the prohibition on disclosure of information relating to a holder of a GRC, the requirement (or not) to alter public registers and clarification of those agencies exempt from the prohibition on the disclosure of information.

Jersey recognises that it does not have the required healthcare professionals who can make decisions based on appropriate evidence to grant an inidividual a GRC. The island, therefore, looks to bigger jurisdictions to undertake this process for its trans* citizens. Having obtained a GRC from a jurisdiction approved by Jersey, a GRC will then be granted by the Royal Court. Most islanders will, therefore, apply to the UK for a GRC, which can then be presented in Jersey’s Royal Court.

The UK’s Gender Recogntion Act 2004 covers the issuance of GRCs. The granting of a GRC is decided by The Gender Recognition Panel, a branch of HM Courts & Tribunal Service. It is formed from an administrative team and a judicial panel, made up of legal and medical members. The panel needs to be satisfied that the applicant has lived in their correct gender throughout the period of 2 years prior to the date of the application and intends to continue doing so until death. It is a matter for the panel to decide whether the medical evidence satisfies that test. The charity GIRES provides guidelines for applying for a GRC here.

It is to be noted that the LGBT Consortium in the UK have recently published a consultation paper stating that the Gender Recognition Act is no longer fit for purpose and requires reviewing.

Advantages of obtaining a GRC:

All legal documents, including your birth certificate, can be changed to your correct gender. Note: the States of Jersey will issue driving licences and passports in your correct gender without the requirement of a GRC.
A GRC prohibits those privileged with the information that a person is trans* from disclosing it to others. There are, however, quite a number of exceptions to this prohibition.

Disadvantages of obtaining a GRC:

If you are married or in a civil partnership, you will need to dissolve or annul the union before a full GRC can be obtained from the Royal Court. Note: this is not a requirement for marriages in the UK since the passing of the Marriage (Same Sex Couples) Act 2013.

New sex discrimination law

The States of Jersey launched a consultation on the next phase of discrimination legislation due to become law in September 2015. It includes gender reassignment discrimination.

This will be the second piece of legislation to directly concern trans* islanders. We therefore want hear your views in order to formulate a response to the consultation.

Please our consultation page to find out more about how you can get involved before 30 May 2014.