You can click here for the extract from the Hansard transcript of 2 June 2015 where the States of Jersey debate the (Sex and Related Characteristics) (Jersey) Regulations.
Click here for the regulations as passed by the States of Jersey.
legal
States of Jersey consultation on equal marriage
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.
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 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 admin@transjersey.org
Equal Marriage update
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.
Discrimination Law update
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.
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.
No government should get to decide this
A short film about why no one should determine your identity except you by Open Society Foundations who support the movement for progressive, rights-based processes for legal gender recognition.
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.
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.
Trans* Jersey 