recognition

Two significant reports dropped into the Trans* Jersey inbox this week. Both highlight the need for a complete review of the gender recognition process in the UK by which a trans individual “becomes” their recognised gender in the eyes of the law. This is significant for us in Jersey as we have “outsourced” our gender recognition process to any other jurisdiction whose legal system/courts we recognise including and, most usually, the UK.

What is the gender recognition process?

At present, a Jersey trans individual who requires a gender recognition certificate (“GRC”) travels the following route through the UK system:

Live as their recognised gender for two years;
Collect proof that they have been living as their recognised gender for two years, e.g. letter from gender therapist, letter from GP, passport/driving licence showing recognised gender, invoices from utility companies showing title in line with recognised gender, pay slips from employer showing title in line with recognised gender, etc;
Apply to the Gender Recognition Panel (“GRP”) in the UK (although this could be any other jurisdiction that Jersey recognises) including the documentary proof gathered as evidence and a fee of £140;
Wait for the GRP to decide on whether they will issue a GRC. There is no automatic requirement to appear before the panel. The GRP’s judgement is made based on the documents submitted. However, if the documents are not satisfactory, the GRP can call for further evidence that might include an appearance before them;
Once the GRP rule that a GRC can be issued, the GRC must be passed through the Royal Court in Jersey and Jersey will then also issue a GRC.

At this point, the trans individual is their recognised gender legally in Jersey.

The above assumes a trans individual who does not have a spouse. If the trans individual applying for a GRC is married or in a civil partnership, things get more complex. The GRC legislation in England and Wales requires the trans individual to divorce/dissolve the marriage/partnership before a GRC will be granted and, if the spouse disagrees with that, they get to veto the trans spouse’s GRC application.Scottish law does not include this so called “spousal veto”.

Jersey’s same-sex marriage law will be following the Scottish model in allowing someone in a marriage/civil partnership who wishes to transition to do so seamlessly without the requirement to divorce/dissolve the partnership. However, this is then inconsistent with “outsourcing” Jersey’s GRC procedure to a jurisdiction (the UK) that has legislation that includes the spousal veto. This is a problem that the States of Jersey will need to address before 2017 when equal marriage legislation is due to come into force.

So, why bother with a GRC at all?

Some trans people don’t. Changing their gender on their passports is enough to do what they need to do in life. For others, not having their gender legally recognised could be problematic. For example, if the trans person wishes to marry as their recognised gender and not as the gender they were assigned at birth.

Some trans people may also wish to amend all records that show them to be trans and to protect any records that divulge their status from public scrutiny. This may be for reasons of personal safety. A GRC affords those people a greater level of protection in this regard than, say, the data protection or discrimination law. The amendment of records extends to birth certificates. Having a GRC is the only way to amend your birth certificate.

What needs to happen?

The two reports are consistent in their assessment of the GRC process as no longer fit for purpose.

The main criticisms of the system are:

it is long-winded and difficult to navigate;
in practice, it requires evidence of medical treatment before the GRP will grant a GRC, despite this supposedly not being a requirement;
applying to a panel, who may or may not be qualified in gender matters, for recognition of one’s gender identity is inappropriate and humiliating;
the financial cost of the application is greater than the fee of £140 as gathering the evidence required also incurs costs;
it does not allow for someone to identify as neither man nor woman;
the requirement for someone to have lived for two years as their recognised gender before being eligible is arbitrary and unreasonable;
the minimum age limit of 18 is out of line with other legislation that acknowledges young people can make life changing decisions from 16 onwards;
the link between having one’s gender recognised legally and the protection of a trans person’s personal data created by the gender recognition legislation leads to people being inappropriately asked for GRCs before transactions that should not require sight of a GRC will be carried out by employers, government departments, etc.

In short, both reports draw the same conclusion that gender identity should not be based on a diagnosis of gender dysphoria but should be self-determined by the person concerned.

The States of Jersey have an golden opportunity now in their work on the same-sex marriage law to do the right thing by the trans community and make the process by which a trans person “becomes” their recognised gender in the eyes of the law simple, affordable, inclusive and self-reporting. Trans* Jersey will be working towards this in 2016.

You can read the full reports here:

UK Trans Info’s report: “Gender Recognition: Where Next?”

House of Commons Women and Equalities Committee: “Transgender Equality”

The States of Jersey have voted overwhelmingly in favour of same-sex marriage. The Chief Minister, Senator Ian Gorst, asked States members to decide whether they were for or against four principles.

(a) to agree, in principle, that appropriate legislation should be brought forward for approval to allow same-sex couples to get married in Jersey, with the legislation to:
(i) include civil marriage and religious marriage with appropriate safeguards in place to protect the rights of religious organisations and their officials who do not wish to conduct same-sex marriages;
(ii) include allowing people in civil partnerships to convert their partnership into marriage;
(iii) include retention of terms such as ‘husband and wife’, ‘mother and father’ in legislation;
(iv) not include a spousal veto in respect of gender recognition;

This principle was passed 37:4 with 1 abstention and 7 absentees. The full result can be found here.

(b) to agree, in principle, that current legislation should be amended to confer parental responsibility automatically on unmarried fathers who are named on birth certificates;

This principle was passed 43:1 with 5 absentees. The full result can be found here.

(c) to agree, in principle, that new legislation should be brought forward for approval to allow for the introduction of a system of divorce and dissolution making it a legal requirement to access and use mediation services subject to appropriate safeguards and human rights considerations;

This principle was passed 41:3 with 5 absentees. The full result can be found here.

(d) to request that the Chief Minister bring forward for approval by the States Assembly, no later than end January 2017, the draft legislation necessary to give effect to these proposals.

This principle was passed by 42 members with 2 abstentions and 5 absentees. The full result can be found here.

The full proposition can be downloaded here.

Clearly, principle (a) (iv) is the most important for Jersey’s trans community as it ensures that none of us will be asked to choose between having our gender recognised legally via a gender recognition certificate (“GRC”) and our marriage. It is the case, in England and Wales, that those who transition within a marriage (or civil partnership) and wish to acquire their GRC must divorce (or dissolve the partnership) and remarry as a same-sex couple (or opposite-sex couple). To do this, they must get their partner’s permission. If the spouse does not give permission, they effectively “veto” the trans person’s ability to get a GRC and have their gender legally recognised. It is an impossible choice to ask someone to make – their gender or their marriage?

Jersey will be following the Scottish legal model where the marriage seamlessly changes from opposite-sex to same-sex (or vice versa) on the issuing of the GRC. However, this causes a problem as we have outsourced the issuing of GRC’s to other recognised jurisdictions around the world. Our Gender Recognition (Jersey) Law 2010, therefore, relies on our ability to obtain a GRC from a recognised jurisdiction – the most logical being England and Wales. But, because England and Wales require a trans person to divorce before a GRC is issued, then Jersey people applying for their GRC will be subject to the spousal veto “by the back door”.

As the above loophole shows, there is much work still to be done. This is why the expected delivery date for the legislation is 2017. This gives us time to work with the Chief Minister to ensure that a satisfactory outcome is achieved on the subject of gender recognition. Watch this space for updates…

Trans* Jersey

Providing help and support to trans, non-binary and intersex Jersey residents

GRC not fit for purpose

Same-sex marriage will happen in 2017