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.
Trans* Jersey welcomes Jersey’s sex discrimination regulations that go further than the UK in their protections for people of non-binary genders.
The States of Jersey have passed regulations today that expand the island’s anti-discrimination legislation to encompass sex, gender reassignment, sexual orientation and pregnancy and maternity. The new regulations, due to come into force on 1 September 2015, give protection to transgender islanders, but also protect all those who do not identify with the gender binary of man or woman.
Jersey has gone further than the UK’s Equality Act by recognising that there are more than two sexes. The island’s regulations explicitly protect intersex people as well as men and women from discrimination under the protected characteristic of sex.
“This is an important inclusion that recognises a small and often misunderstood section of society. It makes clear the distinction between intersex and transgender people – a common misconception – and it allows those who were born neither biologically male nor female and who identify as intersex to do so, knowing that they do not have to choose man or woman if they do not want to and they will still be protected from discrimination under the law,” said Vic Tanner Davy, Founder of Trans* Jersey.
For the 1-2% of the population that experience some degree of gender dysphoria (a feeling that your gender identity does not match the gender role assigned to you by society), they are also given protection under the new regulations. Jersey’s regulations state that a person is transgender whether or not they intend to have medical intervention to transition. This, again, goes further than the UK in its protection.
Trans* Jersey’s founder, Vic Tanner Davy, said: “Not everyone who experiences gender dysphoria will take steps to do anything about it. As well as those who decide to transition, the regulations protect those who identify as any one of a number of genders that can be termed genderqueer from discrimination, harassment and victimisation.
“The trans* community in its widest sense is at its most vulnerable from physical and verbal abuse when it does not fit society’s ideal of men or women. This means that those early in their transition or those who cannot, or do not want to, transition are the most likely to experience discrimination. Jersey has recognised this and put in place protections. We are pleased that Jersey is leading the UK in this and we congratulate the States members on their decision today.”
Trans* Jersey is offering training sessions for organisations on how to deal with trans* employees and service users ahead of the new legislation coming in on 1 September 2015. They can be contacted by email: email@example.com
The Social Security Department has released a consultation draft of the Discrimination (Sex and Related Characteristics) (Jersey) Regulations today. The draft can be downloaded by clicking here.
The draft represents a great deal of hard work by the Social Security Ministers, Francis Le Gresley and Susie Pinel, and their team. It takes as its starting point the UK’s Equality Act 2010 but then improves upon it, taking into account areas where the Act falls short. Protection for transgender people is one of those areas and the draft has gone further than the UK in its recognition of the diversity of sex and gender by protecting both intersex and genderqueer people.
The highlights for trans* islanders are as follows:
If you have any queries about how the draft regulations might work in practice, please email firstname.lastname@example.org and we’ll do our best to answer them.
Trans* Jersey and Liberate met with Susie Pinel, Social Security Minister, on 23 January 2015 to discuss the progress of the next phase of Jersey’s discrimination law that, amongst other things, deals with discrimination of transgender people.
The good news is that, although more work needs to be done on the parts of the new law that deal with pregnancy mainly, the policy team are confident that it will be in force by September 2015. It is hoped that a draft document might be publicly available soon.
From the partial draft available at the meeting, the parts of the law dealing with sexual orientation are well-written and provide protection for sexual minorities.
Those parts of the law dealing with gender reassignment still need a bit of work to get the wording right, but the basic principles are in place. Trans* islanders will be protected no matter what stage of their transition they are at. This includes those who identity as trans* but have not yet started any form of treatment. Intersex islanders will also be protected. Both these inclusions are improvements on the UK’s legislation.
It was obvious from the meeting that the policy team are working hard to make Jersey’s law as good as it can be and have learned from mistakes made in the UK’s Equality Law. This is all positive news for trans* islanders.
The States of Jersey have released the results of their consultation paper on the next phase of the island’s anti-discrimination law due to come into effect in September 2015. The section on Gender Reassignment demonstrates that trans* realities are poorly understood by some people and that the old myths surrounding toilet usage and gender specific job roles still persist. There is, therefore, work to be done to educate employers about trans* issues and how they cope with trans* employees.
You can read the results here (link at bottom of the page): http://www.gov.je/Government/Consultations/Pages/SexDiscriminationLawConsultation.aspx
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:
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.
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:
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.
Documentary by award-winning filmmaker Antony Thomas (HBO’s Celibacy), Middle Sexes: Redefining He and She, sensitively explores the controversial subject of the blurring of gender as well as the serious social and family problems – even dangers – often faced by those whose gender may fall somewhere in between male and female. Narrated by noted author Gore Vidal and filmed in the United States, Europe, Asia, and South America, Middle Sexes examines the ways different societies and cultures handle the blurring of gender, sexual identity and sexual orientation. Through interviews with transgender, intersexual and bisexual men and women, as well as experts from the scientific and academic communities, the film considers the entire spectrum of sexual behavior, personal identity and lifestyles among people of different backgrounds and cultures. From this, a theme of tolerance and appreciation of diversity emerges in the film.
Along with thought-provoking personal experiences of transsexuals, intersexuals, transvestites and their partners and families, Middle Sexes: Redefining He and She interviews scientists,anthropologists and psychologists who offer ground-breaking research on the biological and cultural influences on gender identity and sexuality. Researchers cite examples from the natural world, where species display a wide range of sexual variation, and point out that humans show more diversity than the strict male-female dichotomy.