Trans* Jersey and Liberate met with Susie Pinel, Social Security Minister, on 23 January 2015 to discuss the progress of the next phase of Jersey’s discrimination law that, amongst other things, deals with discrimination of transgender people.
The good news is that, although more work needs to be done on the parts of the new law that deal with pregnancy mainly, the policy team are confident that it will be in force by September 2015. It is hoped that a draft document might be publicly available soon.
From the partial draft available at the meeting, the parts of the law dealing with sexual orientation are well-written and provide protection for sexual minorities.
Those parts of the law dealing with gender reassignment still need a bit of work to get the wording right, but the basic principles are in place. Trans* islanders will be protected no matter what stage of their transition they are at. This includes those who identity as trans* but have not yet started any form of treatment. Intersex islanders will also be protected. Both these inclusions are improvements on the UK’s legislation.
It was obvious from the meeting that the policy team are working hard to make Jersey’s law as good as it can be and have learned from mistakes made in the UK’s Equality Law. This is all positive news for trans* islanders.
Trans* Jersey and Liberate met with Chief Minister Ian Gorst on 21 November 2014 to discuss the findings of the consultation into the question of whether it is appropriate to introduce legislation to equalise marriage in Jersey.
The online survey conducted by the Chief Minister’s office had 1,094 respondents and 161 people wrote letters on the subject. This represents an amazing level of response and bears witness to strongly held opinions on both sides of the debate.
However, this only represents 1.5% of the population and, inevitably, only those members of the population who feel strongly about the subject. It was no surprise, therefore, to learn that 54% of respondents were for and 46% were against equal marriage. The closeness of the result is probably not representative of the population as a whole but speaks to the fact that about 10% of the population are LGBTQ and about 10% of the population are regular churchgoers, both parties being well mobilised and well versed in the arguments for and against.
Of the three options offered for making equal marriage a reality, the responses were as follows –
Civil marriage only – 34% for
Civil and religious marriage (with an opt-out for those whose faith does not allow for same-sex unions) – 55% for
Union Civile – 75% against
On the question of allowing humanist marriages to take place, 50% agreed that they should, but the lack of comments on this issue was interpreted to mean either a lack of understanding of the issue or a lack of real interest in seeing it happen.
On the question of opening up civil partnerships to opposite-sex couples, 75% were in favour. However, the comments from respondents indicated that this option was less about equality and more about greater legal protection for co-habiting couples.
On the question of parity of law for same-sex and opposite-sex couples where adultery is concerned, 65% were for equalising the law.
Of the options offered for equalising the law on adultery, the responses were as follows –
Removing adultery from law – 11%
Creating a new definition of adultery – 40%
This result spoke to concerns that fidelity is important within any marriage and that to remove adultery from law is to make fidelity appear less important.
In addition, a number of points came out of the consultation –
Marriage matters to everyone (whether you are for or against same-sex marriage).
Equality and non-discrimination is an important issue that respondents respected and did not want to stand accused of breaching.
From those people of faith, the message was that marriage can only be between a man and a woman.
There were also a number of people who felt that civil partnerships should be enough for same-sex couples.
Both sides agreed that civil partnerships are not the same as marriages.
For some “redefining” marriage to include same-sex marriages is not an option.
There were concerns surrounding the use of language if same-sex marriage were to happen, such as the neutralising genders on official documents. People from both sides were unhappy with words such as spouse1/spouse2 and would prefer husband/wife, wife/wife, husband/husband.
Both sides of the argument represent a minority of the population. This is, therefore, a minority issue.
The impact of same-sex marriage on children worried some respondents. However, research from other jurisdictions shows that there is no negative impact. This did raise the issue of changes to educational and family policy that will need to be looked at by the States. (For example, the automatic right of a mother to have responsibility for her children. At the moment, there is no automatic right for fathers.)
Some were concerned that same-sex marriage would promote homosexuality.
The cost of implementing the legislation is not inconsiderable and, it was felt, needed to be weighed against the number of beneficiaries. At the last census, 0.4% of the population are living together in a same-sex relationship. (Note: this is not the same as the percentage of the population that is LGBTQ.)
The estimate of the number of equal marriages that will be held following the introduction of a new law is 44. This is similar to the uptake of civil partnerships following their introduction.
Based on his findings, the Chief Minister will be bringing forward the following proposal for legislation –
Civil and religious marriage for same-sex couples with an opt-in clause for religious groups and their clergy. This will preserve terms such as husband and wife. It will also include something similar to the “quadruple lock” that protects religious organisations from prosecution under anti-discrimination legislation and is included in the England and Wales legislation for same-sex marriage.
Civil partnerships will be able to seamlessly convert to marriages. This can happen with or without a marriage ceremony as the couple chooses. Marriages will not be allowed to convert to civil partnerships, however, as this has proved unhelpful in other jurisdictions where it has been used to facilitate divorces.
Humanist marriage will not be brought in.
There will be no so-called “spousal veto” where, in England and Wales, a person in a marriage transitions and their spouse can prevent them from applying for a gender recognition certificate (in order to stop the marriage becoming a same-sex marriage). Jersey will seek to follow Scottish law on this point.
Civil partnerships will not be extended to opposite-sex couples and will be gradually phased out, if possible, because they are seen by the majority of people as a “second-tier” of marriage. More work will be done to find ways to provide more rights to co-habiting couples. If civil partnerships cannot be phased out, the decision will be revisited and the Chief Minister will seek to bring in civil partnerships for opposite-sex couples.
On the question of equalising adultery in the law, the Chief Minister will not be seeking to remove it from law as it is clear that sexual fidelity in marriage matters to people. He will be exploring the option of “no fault” divorces, the ability of a couple to apply jointly for a divorce (rather than one party bringing an action against the other) and the legal requirement for a divorcing couple to have mediation first. All options are being investigated with the intent of taking some of the acrimony out of divorce.
The Chief Minister will report his findings to the States Chamber on 26 November 2014. The proposition will be brought in the first quarter of 2015 with a request for the States to approve the time frame and the process of legal change. Because there are extensive amendments that need to be made to other laws, a clear order of progress is required. (For example, within taxation law, a couple in a civil partnership can elect which partner is treated as the main taxpayer but, for a married couple, it is always the husband who is automatically the main taxpayer. This is clearly inequitable and needs amending.)
It is anticipated that Jersey will have same-sex marriage by the end of 2017.
You can download the full report on the consultation here.
Trans* Jersey welcomes the Chief Minister’s report on equal marriage, especially its handling of the particular trans issue of the spousal veto.
Trans* Jersey met with Chief Minister, Ian Gorst, to discuss the findings of the consultation into the question of whether it is appropriate to introduce legislation to equalise marriage in Jersey. The resulting report is a significant document that has been compiled with consideration of both sides of the argument for and against equal marriage and, as such, is welcomed by Trans* Jersey.
Trans* Jersey’s founder, Vic Tanner Davy, said: “We are impressed by the work done by the Chief Minister and his department in addressing all aspects of the issue thoroughly and with great understanding.”
The report also addresses the issue of the so-called “spousal veto” that exists within the same-sex marriage law of England and Wales, but not the equivalent Scottish law.
Vic Tanner Davy again: “The spousal veto is a nasty piece of legislation that demands a trans person in a marriage asks permission of their spouse before applying for their gender recognition certificate, which makes them for all legal purposes their affirmed gender. This inclusion in the England and Wales law spoke to the concerns of some MPs that the non-trans party to an opposite-sex marriage would be forced into a same-sex marriage because of their spouse’s legal transition.
“In reality, a person’s transition does not happen overnight. It takes at least two years of living as your affirmed gender before you can apply for a gender recognition certificate in the UK. During those two years, a trans person will have undergone gender therapy, most likely started hormone therapy and may have had gender reassignment surgery. If their spouse is still with them at the point that the trans partner applies for their gender recognition certificate, they will already be aware that they are living in a marriage that, to the outsider, has changed.
“Transitioning is difficult and stressful at times as every trans person endeavours to maintain partnerships and family relationships intact throughout the process. The last thing they need is added pressure from the state intervening in what is a private matter between the two people who are party to the union. We are, therefore, delighted that the Chief Minister has taken this into consideration and will be proposing the Scottish model for dealing with the issue. This will enable marriages to change seamlessly between same-sex and opposite-sex with no requirement for divorce and re-marriage or for spousal permission when one party to a marriage transitions.”
The States of Jersey have released the results of their consultation paper on the next phase of the island’s anti-discrimination law due to come into effect in September 2015. The section on Gender Reassignment demonstrates that trans* realities are poorly understood by some people and that the old myths surrounding toilet usage and gender specific job roles still persist. There is, therefore, work to be done to educate employers about trans* issues and how they cope with trans* employees.
Channel Island equality charity Liberate and affiliate group Trans*Jersey welcome the States of Jersey’s consultation on equal marriage and partnership.
Jersey’s Chief Minister, Senator Ian Gorst, launched a public consultation on equal marriage and partnership on 20 August 2014 that will run until 22 October 2014.
Following their meeting on 29 July 2014 with Senator Gorst, Liberate and Trans* Jersey are pleased with the results of the first stakeholder meetings and the options for equal marriage in Jersey arising from those initial discussions being put forward by the Chief Minister.
Jersey Co-ordinator for Liberate Vic Tanner Davy said:
“The options being offered to the public are ones that Liberate and Trans* Jersey supports and we have already responded positively to the suggestion that Jersey introduce same-sex civil marriage and same-sex religious marriage. Although truly equal marriage would be represented by the Union Civile, we have moved away from that position because of the disturbance that its introduction would cause to the long-standing relationship of the Church of England to the Crown and the State, something that would necessitate a much bigger and longer constitutional debate.
“We are also supportive of the proposal to open up civil partnerships to opposite-sex couples. In the interests of equality, this is the only fair thing to do. It is something that the UK has not done and for Jersey to be considering this option shows how committed the Chief Minister and his department are to ensuring we get this right as an island.”
The consultation document also addresses the question of whether adultery as grounds for divorce in a marriage should be removed or redefined to ensure that same-sex couples are treated equally. The current legal position is that an opposite-sex marriage can be ended by adultery but a same-sex civil partnership cannot.
“On the question of adultery, we would like to see adultery as grounds for divorce in a marriage removed because that would equalise the grounds on which a marriage or civil partnership can be dissolved. In so doing, it would no longer relegate the sexual congress of same-sex couples to something less than that of opposite-sex couples.
“Adultery is just as emotionally damaging to same-sex relationships as it is to opposite-sex relationships but it can be covered in law by citing the grounds for divorce/dissolution as “unreasonable behaviour”. We feel that all marriages and civil partnerships would be protected from sexual infidelity via this route and, therefore, removing adultery is appropriate in the interests of equality.”
Liberate congratulates the Chief Minister and his department on the sensitivity with which they have worded the consultation and the research they have undertaken, in a very short period of time, in order to produce a comprehensive document that covers all the main permutations for equal marriage and partnerships. The consultation paper is balanced and, as far as possible, gives equal weight to the considerations of both the LGBTQ community and those religious groups who feel they cannot solemnise same-sex marriages in their place of worship.
Martin Gavet, Chairman of Liberate, said:
“Liberate is an inclusive group and we welcome members regardless of race, gender, disability, religious belief, gender identity or sexual orientation. It is, therefore, very important to us that religious groups have a means to opt-out of performing same-sex marriages and their freedom of religious belief is maintained. The options put forward by the consultation paper make it clear that places of worship will be able to opt-out in line with the position of their organisation. Having said that, we also hope that in time religious organisations, which currently oppose same-sex unions, will grow in their understanding of LGBTQ issues and the spiritual needs of some of the LGBTQ community.”
The States of Jersey are currently asking for comments from the public on proposals for an equal marriage and partnership law. They have published a consultation paper, which can be downloaded here.
The consultation process closes on 22 October 2014 and the Chief Minister will report to the States in November 2014.
What the consultation does not do is ask whether a respondent is in favour of same-sex marriage. As far as the consultation is concerned that argument has been had and the island has to move on. Same-sex marriage is going to happen. It is now a question of how. The consultation paper offers a number of options for equal marriage and tackles a couple of other inequalities in current marriage law at the same time.
The consultation document is quite weighty but it is well-written and researched. It is also progressive in its thinking and doesn’t just copy what other jurisdictions have done. It offers three options for same-sex marriage:
Same-sex civil marriage only
Same-sex civil marriage and same-sex religious marriage
Same-sex and opposite-sex civil marriage only (also known as civil union)
All three options provide a means for someone to transition within a marriage without having to dissolve an existing union. Trans* Jersey is most keen to ensure that any legislation brought in does not contain the so-called Spousal Veto that is enshrined within the England and Wales Marriage (Same Sex Couples) Act 2013 and that, should option 1 or 2 be adopted, any law is modeled on the Marriage and Civil Partnership (Scotland) Act 2014.
The other section of specific interest to trans* islanders is part D that deals with adultery as grounds for divorce. As people who may or may not have the genitals that are expected of a man or woman, the legal definition of adultery doesn’t always make sense within a marriage in which one or both partners are trans*. In a farsighted move, the States are proposing either doing away with adultery as grounds for divorce or redefining adultery to include same-sex acts. Clearly, removing adultery altogether is the simpler option here.
We have requested involvement in any forum convened by the States to discuss the proposed legislation and were involved in the first round of meetings on 29 July 2014.
Whilst Trans* Jersey encourages you to complete the online survey, we would also like to receive your comments about the States’ proposal regarding equal marriage and partnerships.
We believe that by speaking together as a group of trans* islanders our comments on the consultation will carry more weight.
Our partner organisation Liberate’s Jersey group has already responded and you can read their response here.
We therefore invite you to email us with your comments, suggestions, thoughts or concerns at firstname.lastname@example.org
Trans* Jersey met with Chief Minister Ian Gorst on 29 July 2014. In attendance were Senator Paul Routier, Ruth Johnson (Assistant Director, Social Policy), Martin Gavet, Ellie Jones and Pippa McCarthie from Liberate, Emma Poulliquen and Sara Garwood from the LGBTQ liaison team of the States of Jersey Police, Vicki Twohig and Mark Capern from the Youth Service, Christian May from change.je, Dr Elena Mora and Toni Roberts from Jersey Community Relations and Montfort Tadier from the Human Rights Group.
Martin Gavet opened the meeting by presenting a video produced by Liberate (below).
Vic Tanner Davy of Trans* Jersey followed this with a presentation discussing two possible options for same-sex marriage that would provide LGBT islanders with equality. You can download the Powerpoint presentation here.
The presentation started by asking the question, “they’ve got Civil Partnerships, why do they want marriage?”, which is something that has been heard more than once since the debate started. For the trans community, having a single means for two people to marry is really important as it means that divorce is no longer a requirement when someone transitions within a marriage or civil partnership. Having two “streams” (marriage for heterosexual couples and civil partnerships for homosexual couples) does not work.
The term GRC (gender recognition certificate) was explained to the meeting and its significance for trans people. It was pointed out that the state cannot ask a trans person to choose between their right to be married and their right to their GRC.
The presentation suggested two possible solutions: adopting the Scottish model (the Marriage & Civil Partnership (Scotland) Act 2014) or the Union Civile being proposed by Guernsey’s Chief Minister, Jonathan Le Tocq.
The Scottish same-sex marriage law is an improvement on the England & Wales law because it enables couples who are converting from a civil ceremony to a marriage to have a ceremony (in England & Wales you simply get a conversion certificate); it provides a route for gender recognition and converting a civil partnership into a marriage all in one process; it also contains no “spousal veto” clause; and it includes adultery as grounds for divorce (the England & Wales law ignores the possibilities of dissolution by adultery and of non-consummation of a same-sex marriage).
The meeting was informed that this was because the lawmakers could not decide how to define same-sex adultery (or non-consummation) so, rather than change the legal definition of adultery as penetrative sex, they left it out. As both Vic Tanner Davy and Ruth Johnson pointed out, if you can prosecute homosexual rape, you can define what legally constitutes homosexual sex. The meeting was in general agreement that if opposite-sex marriages can be dissolved through adultery or non-consummation so should same-sex marriages because the emotional consequences are just as devastating.
The presentation moved on to look at the proposed Union Civile in more detail. A handout explaining how the law might work and its implications can be downloaded here.
The meeting discussed the implications of the Union Civile for the Anglican church in particular. Both Liberate and Trans* Jersey are sensitive to fact that they would be the religious group most affected by the Union Civile and that its proposal could be seen by some as a first step towards disestablishing the Church of England. Having spoken to church leaders, Liberate and Trans* Jersey know that the Union Civile, although the ideal solution for many, will be a very difficult motion to put through the States.
This is why two solutions were proposed. Although the Scottish model still retains two laws for marriage, it does provide all the non-negotiable elements that we are asking for. The question then becomes, is it wise to pick a battle with the Anglican church, via the Union Civile, that possibly does not need to be had?
Ruth Johnson responded to the presentations and opened the meeting up to further discussion. She informed the meeting that the States are intending to move quickly on this because there is no good reason not to. There will be a public consultation from mid-August to mid-September that will ask the public to comment on a number of options for same-sex marriage. In addition to the two options favoured by Trans* Jersey and Liberate, there will be one that allows for two marriage “streams”, but this time divided between civil marriage and religious marriage, and one that offers civil partnerships to opposite-sex couples as well as marriages to same-sex couples.
The States are endeavouring to encompass a number of matrimonial loose ends in the consultation process, not just same-sex marriage. They also want to know whether opposite-sex couples would like civil partnerships and whether humanists and non-religious groups would like to carry out marriages.
The meeting discussed a number of issues arising from the presentation and from Ruth’s outline. There was no suggestion from those at the meeting that what the States of Jersey are proposing to publicly consult on is in any way inappropriate, although a copy of the consultation document was not available and would not be available until after the Chief Minister had met with religious leaders on 1 August 2014. It was felt by all that Ruth Johnson, in particular, had done an impressive job of understanding the issues and researching the various marriage laws to come up with a number of options.
Following the public consultation, it is anticipated that the Chief Minister will bring a report before the States at the end of September/beginning of October. Liberate and Trans* Jersey both expressed the hope that an educational presentation to States members would be possible as part of the process of bringing draft legislation before the States Chamber in order that the issues for LGBT people could be explained to members and they would have a chance to ask questions. The Chief Minister confirmed that was part of the plan.
The meeting was friendly and open with those present feeling very encouraged by what the States of Jersey are proposing to do regarding enabling every islander to have equality when it comes to marriage.
Trans* Jersey met with Senator Francis Le Gresley on 29 July 2014. In attendance were Martin Gavet (Liberate), Ellie Jones (Liberate), Pippa McCarthie (Liberate), Kate Morel (Policy Principal, Social Security Dept) and Darren Newman (Legal Consultant).
Vic Tanner Davy presented Trans* Jersey’s response to the consultation document. You can download the Powerpoint presentation here.
The presentation started by discussing the differences between sex and gender. The consultation document uses the word “sex” when it is often referring to gender. It was felt that it would be helpful to unpack the differences in order to better understand the non-binary nature of both features for trans* people and intersex people.
The use of the “X” maker on passports and birth certificates was touched on. Trans* Jersey would like to see this option being used in Jersey but, at the moment, although it is internationally recognised and legal in the UK, it is not policy to allow people to elect to have it on their documents.
The meeting acknowledged that there are more than two genders and, because of that, some explanation and guidance on the spectrum of gender would be required to assist organisations like the Jersey Tribunal and the Jersey Advisory and Conciliation Service in their decision making. The gender grid was put forward by Trans* Jersey as one way to define multiple genders.
Trans* Jersey went on to bust three myths about trans people that had, without malice, crept into the consultation document by implication:
That trans people’s medical and surgical histories are other people’s business, and that surgery is a requirement to be “really” trans;
That transition has an easily definable start and end, and that it will be the same journey for every trans person;
That trans* people cannot be trusted to use facilities marked for use by the gender they present as.
The meeting was hugely sympathetic to this last point and understood the need to ensure that the law does not accidentally enshrine discrimination around this point. It was felt that, when the draft law is debated in the States of Jersey, this point will be the one that takes up most time and causes most concern. The meeting agreed that educating the public and politicians to allay fears around this point would be helpful. The Minister and his team said that they would welcome any help Trans* Jersey and Liberate could provide in this regard.
The meeting discussed how trans people should be treated with regard to exemptions under the law for gender-specific employment and sports teams. Trans* Jersey suggested that, for those employers, such as a women’s refuge, who are exempt from discriminating when hiring, transmen should not expect to be able to be employed but that transwomen should be considered for the job along with natal born women.
Trans* Jersey explained that sports teams were still a difficult area for trans people, even at the professional level, as transwomen in particular were seen to have an unfair advantage over natal born women. In fact, research has shown this is not true. Once a transwoman starts hormone therapy, she looses the muscle bulk and testosterone advantage that she had.
In essence, for all purposes, the moment that someone self-reports as transgender they should be treated as the gender they present as – even if they are worse off. The meeting then asked about pension entitlement for trans people and Trans* Jersey said that the same rule applies. For transmen, that might mean working an extra 5 years before they are eligible for their pension.
Trans* Jersey, finally, suggested some wording, based on the UK’s Equality Act, for how the new law might be drafted.
Liberate stated their support for the consultation’s proposals on sexual orientation and asked for confirmation that maternity/paternity leave applies equally to same-sex couples as to opposite-sex couples. The Minister confirmed that same-sex couples are equally covered by the law.
The draft legislation is expected to be publicly available in February 2015.
Trans* Jersey has now submitted its response to the States of Jersey Social Security Department white paper on law to protect against sex discrimination. All comments received regarding the white paper were incorporated into the response. However, this is not the end of the process. A period of consultation begins now, which Trans* Jersey hopes it will be involved with. We have expressed our interest in doing so. If you have further comments or issues that you want included, please email us.
Trans* Jersey restricted its response to two of the characteristics being considered by the consultation – sex and gender reassignment – that are of most concern to trans* islanders and suggested ways in which the law might be drafted to protect a more diverse, but equally discriminated against, population.
Summary of key issues arising
The white paper assumes that gender and sex are interchangeable. For most people that may be the case but it is not the case for trans* people. Using a binary model of sex as a protected characteristic by which to assess discrimination presents problems. These are outlined in the full response.
There are a number of misconceptions about what it means to be trans* and, unfortunately, the States of Jersey’s consultation document falls into some common traps. Why these misconceptions are unhelpful is discussed in the full response.
The States of Jersey has looked to the UK Equality Act for guidance on how to shape its anti-discrimination legislation. However, as the recent manifesto presented to the UK government by a number of UK charities that work with the trans* community demonstrates, there are problems with this legislation (and the Gender Recognition Act) that need to be corrected.
Jersey has an opportunity to bring in model legislation that advances the current position of trans* people within British law. Trans* Jersey offers a solution to the problems it sees as arising from the proposals put forward in the white paper in order that Jersey can implement legislation that encompasses the broad spectrum of human gender identity.
What we would like to see
Trans* Jersey is asking for the States of Jersey’s law to protect against sex discrimination to include two things:
The definition of “sex” as a protected characteristic expanded to include persons of a non-binary gender;
The removal of any exemption that permits businesses to discriminate on the grounds of gender reassignment. There is no requirement to have any exemptions for transgender individuals, other than those provided for the characteristic of “sex”. Trans employees should be subject only to the same exemptions for genuine occupational requirements as natal born men, women and those persons of a non-binary gender.
To find out more about how we arrived at the above and the background to our thinking on the white paper, you can download our full response here.