Tips from gender therapist Dara Hoffman-Fox. There are more videos in this series but we have just provided links to the ones that we think are most helpful to Jersey residents.
Through her own parenting experience, Christy Hegarty has become an advocate for families with transgender children. During her talk at TEDxBloomington, Hegarty shares what she has learned as the mother of a transgender child. She explores the concept that we should be able to accept that our children may be different than we expect them to be and that we should not be afraid to allow them to express themselves. She challenges us to consider the idea that human evolution is more about being human than it is about being a gender and the important role acceptance plays in our evolving world.
When we’re born, a doctor instantly deems us to be one of two things: male or female. But gender isn’t just between our legs. It’s also between our ears. So, what happens when how we look on the outside clashes with how we feel on the inside? Do we settle? Do we change? And at the end of the day should gender really be as big a deal as society wants us think it is? In this talk Decker Moss explores these issues and more, as he struggled through not only one but two major gender-related transitions in his life.
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).
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.
Debi Jackson shares the story of her daughter, who transitioned from male to female when she was four years old. She challenges the ignorant comments she hears about having a transgender child.
Why civil partnerships do not make for equal marriage
For those who think that they were made some kind of promise by the gay community that civil partnerships would be enough to ensure equality, I can confirm that no such promise was made by the trans community who have always known that civil partnerships do not provide true equality. As Jersey law stands, a person in a marriage or civil partnership who undergoes gender reassignment whilst still in that union is severely discriminated against.
A key part of a transgender person’s journey is acquiring their gender recognition certificate (”GRC”) after two years of living as their true gender. It is a legal document that means for all purposes you are the gender you present. It enables a trans person to have all legal documents amended, including their birth certificate. It also provides a degree of privacy protection for the trans person because it is an offence under the Gender Recogntion (Jersey) Law to “out” someone in possession of a GRC, for example, when giving an employment reference.
Under current Jersey legislation, at the point at which a trans person in a marriage or civil partnership applies for their GRC, they are forced to dissolve their union. Having done so, they are then expected to re-make their union using the vehicle appropriate to their gender and the gender of their spouse. The choice for transgender individuals in this situation is clear: either, do not apply for your GRC and continue having your official documents “out” you; or, change your official documents at the cost of losing your legal ties to your family.
Anyone who has been through a divorce will know that not only are there costs involved, emotional and financial, but also that a divorce immediately stops the continuation of joint arrangements, such as pension provisions, insurance policies and wills, some of which cannot be re-started without severe penalty. And, if the union has produced children, the situation gets even more complicated. I think that all sides of the marriage argument would agree that nobody should be forced to go through a divorce.
In 2006, the International Commission of Jurists and the International Service for Human Rights developed a set of international legal principles on the application of international law to human rights violations based on sexual orientation and gender identity. These were called the Yogyakarta Principles and, whilst not adopted as an international standard, are cited by UN bodies and national courts, and many governments have made them a guiding tool for defining their policies in the matter. The European Commissioner for Human Rights has endorsed the Yogyakarta Principles, in particular principle number 3, and considers them an important tool for identifying the obligations of states to respect, protect and fulfil the human rights of all persons, regardless of their gender identity.
Yogyakarta Principle number 3 states that, “Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom… No status, such as marriage or parenthood, may be invoked as such to prevent the legal recognition of a person’s gender identity.”
Whilst legislation exists that gives opposite-sex couples a different piece of paper from same-sex couples, there will always be an inequality at the heart of the island’s laws. Jersey is proudly bringing in the first piece of anti-discrimination legislation later this year and, yet, enshrined within its laws is a nasty little “gotcha” that discriminates against a person in a marriage or civil partnership who transitions. If Jersey is serious about improving its human rights credentials on the world stage, it needs to adopt the Yogyakarta Principles as an internationally recognised model of best practice and address anomalies within its legislation such as this.
This is why Trans* Jersey is supporting Guernsey’s proposition for a Union Civile that requires all couples, regardless of gender, to wed in a civil ceremony that registers the union for legal purposes. Having done the legal part, couples who then wish to seek a church service aligned to their religious beliefs regarding marriage can do so. This solves the argument over the definition of marriage that exercises religious and secular groups, and it enables a transgender person to acquire their GRC and alter the gender on their Union Civile certificate without having to divorce. It is an elegantly simple solution to the problem and one that we hope Jersey will also propose, debate and pass.
Transgender Basics is a 20 minute educational film on the concepts of gender and transgender people. Two providers from The Center’s Gender Identity Project (GIP) discuss basic concepts of gender, sexual orientation, identity and gender roles. Three transgender community members share their personal experiences of being trans and genderqueer. The film targets service providers and others working with the LGBT community, but it also provides a fascinating glimpse into gender and identity for the general public. “Our culture likes to make things simple, and gender isn’t.” Carrie Davis, Transgender Community Organizer, in Transgender Basics.
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.
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.
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.
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.