Summary of UK trans* issues

The following is taken from a paper produced in May 2014 by the UK charity, GIRES. It is a useful summary of the issues facing trans* citizens and the groups working with them for equality.

Introduction

The numbers of transgender people presenting for medical treatment is increasing by 20% pa. This figure rises to 50% for young people. EHRC estimates that 1% of the population fall under the protected characteristic of gender reassignment.

Transgender people are the victims of unequal treatment under the law. This sets a dreadful example and fuels the discriminatory and sometimes violent and abusive treatment experienced by many trans people.

The current government has chosen to ignore a growing cohort of younger people who do not identify with the gender binary. Many such people have no protection under the 2010 Equality Act and have no mechanism to get appropriate ID. In effect they are being excluded from Society.

Surely in 2015 equality and enjoyment of full Human Rights shouldbe an entitlement of all?

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A course of action is requested to achieve the following end state:

(a) having no legislation permitting discrimination on the grounds of gender identity or non gender binary identification;

(b) truly equal marriage;

(c) abolition of the 2004 Gender Recognition Act and new processes for gaining appropriate ID;

(d) education for younger people to eliminate prejudice in the longer term; and

(e) new medical treatment models to cope with the rapidly increasing numbers presenting for treatment.

Government must come to realise that people cannot be categorised into neat boxes and its obsession in trying to do so is making life very difficult for many!

A summary of requested actions is given below. [More detail on each section can be found in separate posts]:

1. Legislative revisions [More detail on this can be found here]

Equality Act 2010: Remove any rights to legally discriminate against transgender people. Grant protections to those who do not fit into the gender binary.

Gender Recognition Act 2004: Trans people find the process of having their assertions of gender incongruence checked for truth by the Gender Recognition Panel a degrading and patronising (and also expensive and protracted) process. The Act was introduced to address the lack of same sex marriage in the UK and is no longer relevant, and indeed divisive. Given that gender related discrimination is no longer permitted in the UK, a legal change of gender on birth certificates should be a self driven administrative process.

Marriage (Same Sex Couples) Act 2013: The Spousal Veto must be removed if this remains in the Act when the trans marriage regulations are passed later in 2014. The marriages of couples who were forced to annul and subsequently formed civil partnerships should be reinstated. Government assertions “that the past cannot be rewritten” are hollow given that birth certificates, and soon marriage certificates, can now be altered.

Matrimonial Causes Act 1973: Section 12(h) (non disclosure of gender history) must be withdrawn. Under this provision trans people are singled out for treatment not applied to any other group. Furthermore, as one does not have to disclose (for example) that one is a convicted murderer or married to another) before having sex, why can one be imprisoned for not doing so if one has a trans history?

Application of EU law to pension claimants: Despite very clear and well established superior European Court of Justice case law, the Department of Work and Pensions, supported by some but not all Courts, continues to act unlawfully towards some transgender pension claimants.

2. Non gender binary issues [More detail on this can be found here]

Marriage laws: Gendered language in ceremonies should be optional.

Passports: The introduction of the X marker on passports is long overdue. The conclusion of a recent Passport Office report on this topic was that there is no demand for X markers contradicted the evidence it received.

Birth Certificates: As part of the new provisions following the Gender Recognition Act a mechanism should be introduced to allow the sex classification to be removed or changed or an “X” category added.GIRES encourages direct communication with the appropriate communities.

3. Education [More detail on this can be found here]

It is the experience of GIRES that many in government do not understand the difference between sexual orientation and gender identity. This is vividly demonstrated by married trans people and their spouses “being shoehorned into arrangements for gay and lesbian people” (evidence: Commons Committee Stage, Same Sex Marriage Bill). However, the route to combating transphobia longer term is to introduce awareness training on diversity, early in the education process, in schools.

4. Medical treatment of trans people [More detail on this can be found here]

Despite some recent progress in improved treatment protocols, the growing numbers presenting for medical help are now overwhelming the specialist clinics. Although gender dysphoria is no longer accepted as a psychiatric condition, treatment generally remains under the control of specialist clinics led by psychiatrists. Inappropriate treatment and increasing delays are harming transgender people. New treatment models must be implemented to ensure timely and flexible treatment packages that make best use of the funds available.

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Trans* Jersey’s response to the proposals in GIRES’ report

Because so much of Jersey’s transgender and transsexual population’s experience is as a result of having treatment in the UK or acquiring their gender recognition certificate from the UK, these issues affect us, too. Trans* Jersey, therefore, wholly supports the aims and proposals of GIRES and the other trans* organisations working to reform the law in the UK.

To find out more about how Jersey trans* individuals are affected by each of the four proposals listed above, click on the links to more detail where we outline the proposed change in greater depth and explain how we would like to see the States of Jersey tackle these issues.

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.

legalApplication 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.

Non gender binary issues

Trans* Jersey supports the proposal that gendered language in marriage ceremonies should be optional and that an X marker on passports and birth certificates should be introduced. Both these issues are most important for genderqueer, androgynous, bigender and intersex individuals.

passports_UKThe UK charity GIRES offers further explanation of this issue as follows:

Those that are outside the gender binary are not protected under ‘gender reassignment’ as they do not intend to undergo gender reassignment or have any medical treatment.

It is accepted that those with gender dysphoria, who wish to change their social gender role on the basis on non identification with the assigned gender at birth, can do so. Those that do not identify with the birth recorded gender (or the alternative gender) and have no wish to adopt the opposite gender role have no mechanism either to gain protection under the 2010 Equality Act or obtain appropriate ID. Their often ambiguous physical appearance can cause issues when travelling. Passports can be issued to a transitioning person in their non birth recorded gender even without GRC. The Passport Office has the option of the marker “X” to denote other than male or female but refuses to use this despite it being an international convention. Alas a recent Passport Office report ignored the evidence and determined that there was no call for the X marker. The non gendered community are thus excluded from full civil participation.

The 2010 Equality Act “gender reassignment” characteristic should be widened to include those outside the gender binary. The 2004 GRA should be broadened to include an assessment of applicants who wish to have a Birth Certificate reissued with an X (or sex not recorded). Passports should be made available with the X marker irrespective of the Birth Certificate to ensure consistent treatment of all those with “gender dysphoria”.

Trans* Jersey will be responding to the States of Jersey’s consultation on the next phase of the island’s anti-discrimination legislation to ensure that trans* individuals are not excluded from the protections offered by Jersey’s equivalent of the UK’s Equality Act.

Trans* Jersey is currently undertaking research to find out whether Jersey’s passport office have the option to use the X marker as the UK passport office does, and whether it also refuses to do so.