14 July, 2014 Trans* Jersey

A week of contradictions

On Tuesday 8 July 2014, the States of Jersey approved an amendment by Senator Ian le Marquand to the proposition to allow same-sex marriage that had been brought by Deputy Sam Mezec. The amendment effectively stalled the progress towards equal marriage in Jersey by making it subject to a consultation by the Chief Minister, Senator Ian Gorst. Apparently, many of those who voted for the amendment did so because of the immoderate language being used by supporters of the original bill. The words “homophobia” and “homophobic” were used on more than one occasion to describe others with opposing views.

On the very same day, Trans* Jersey received two emails from trans* islanders, independently, reporting that they had been the victims of abuse and assault. In both cases, they were physically at risk of injury. In both cases, the attacks were simply because the victims were trans*. As you can imagine, Tuesday was not a good day for Trans* Jersey.

However, the two reports put the States’ debate into perspective and meant that we did not vent our disappointment over the States’ decision by calling-out politicians on Facebook or Twitter as some did. Apart from acknowledging that there might have been any number of reasons why a States’ member voted against same-sex marriage, such as feeling ill-prepared for the debate, there is another reason why we should be moderate in our response to setbacks in the struggle for equal marriage.

Nobody in the States’ chamber on Tuesday was homophobic. Those who have been the victims of homophobia, transphobia or biphobia know it when they see it. *Phobia isn’t an off-colour joke or a misuse of a pronoun or a disagreement over equal marriage. It is a deep-seated hatred of LGBT people that makes a person capable of acts of verbal or physical cruelty to the target of his or her hate. Until you have been the victim of a hate crime, you cannot know *phobia. There is something in the eyes, something in the tone of voice, that LGBT people recognise as *phobic. It’s when the adrenalin starts pumping and the body goes into fight or flight mode.

When a white, heterosexual, male calls people who don’t share his political view on same-sex marriage “homophobic”, he needs to be very careful. Overuse and misuse of any word can remove its power. Homophobia, transphobia and biphobia are important words to the LGBT community for they are they only way we have of describing the most heinous of crimes against us. These words must not be cheapened by those who are unlikely ever to be the target of a homophobic, transphobic or biphobic attack.

Trans* Jersey would like to say to our allies: thank you for your support, thank you for fighting for equality for us, thank you for being allies, but please be careful of the language that you use when you speak on our behalf.

And then, on Saturday 12 July 2014, this happened. Estimates of the number of people who turned out vary but there were certainly hundreds, possibly 1,000 people there. King Street was filled with love, pride and lots of rainbows for what was Jersey’s first ever LGBTQ rights march or equality rally or pride parade. In the end, nobody was sure what it was and, actually, it didn’t seem to matter. We were there to show that we exist. Every human population has an LGBT community. Visible or forced underground, it is there. Our detractors conveniently forget that fact but, sometimes, we do too and when we do, even an island of 9 miles by 5 miles where “everyone knows everyone”, can seem like a lonely place. Saturday was about reminding ourselves that we aren’t alone, that there are others like us, others who also share our desire for equality.

Rallies often don’t accomplish much but this one felt different. This one felt like a moment of change. Maybe because, during the week, the feelings of anger towards the States for their decision dissipated and were replaced with a feeling of solidarity. Trans* Jersey thanks the organisers of Saturday’s event for being the catalyst that brought us all together in Liberation Square. Every LGBT person in Jersey now knows, for sure, that there is a community here to which they belong and who will stand up for their beliefs in a fair and equal society.

15 May, 2014 Trans* Jersey

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?

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;

(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.

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.

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.

19 April, 201431 May, 2014 Trans* Jersey

States of Jersey consultation on sex discrimination

The States of Jersey are currently asking for comments from the public on the next phase of the island’s discrimination legislation, so called sex discrimination. They have published a consultation paper, which can be downloaded here.

The next phase of the legislation is due to be debated later this year with a view to it becoming law in September 2015. The consultation process closes on 30 May 2014 and responses will be published on 29 August 2014.

The consultation paper outlines the main areas for debate:

Sex
Pregnancy and maternity
Sexual orientation
Gender reassignment
Marriage and civil partnership

Trans* Jersey is most interested in the States’ proposals for gender reassignment. We have therefore requested involvement in any forum convened by the States to discuss the proposed legislation.

We are concerned by a number of aspects of the States’ consultation document:

1. The adoption of the UK Equality Act as the model on which to base Jersey’s legislation. This Act has been in place for 4 years in the UK and campaign groups have highlighted a number of problems with it. The LGBT Consortium have called for a review of it and the Gender Recognition Act.

2. The language used in the document’s section on gender reassignment especially when talking about a person “completing” their transition.

3. The suggestion within the consultation that an exception should be made to permit discrimination against trans* people to occur in the case of “the provision of communal changing facilities or shared accommodation”.

4. The confusion of the term “sex” with “gender” throughout. Man/woman refers to a person’s gender. Male/female refers to person’s sex.

5. The assumption that there are only two sexes or genders.

Get involved

Whilst Trans* Jersey encourages you to complete the online survey, we would also like to receive your comments about the States’ proposal regarding gender reassignment discrimination.

We believe that by speaking together as a group of trans* islanders our comments on the consultation will carry more weight.

We therefore invite you to email us with your comments, suggestions, thoughts or concerns at admin@transjersey.org

Please let us know whether you would be interested in being involved in any face-to-face discussions with the States as part of a Trans* Jersey group.