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.
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.