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The Scottish parliament has just released it’s own “Equal” Marriage Bill. (PDF Link)

The nature of devolved legislative powers is that there is much they can’t fix, such as reintroduction of the fast-track Gender Recognition Certificate (GRC) process. However, the things they could have fixed from the English and Welsh version… they haven’t.

Firstly, the spousal veto is still present, without time limit. (Schedule 2, paragraph 3 – starts on the bottom of page 38) In a nutshell, if you want gender recognition including employment law protection and you are married, you’d better hope you have a cooperative spouse. Otherwise, you’ll be forced to go through the cost of initiating an annulment yourself. That is, of course, assuming your spouse isn’t inclined to engage in delaying tactics over any divorce because they can make you wait a long, long time to get your legal rights if so.

Quite why the legal gender of the person you are married to is more important than if they are living as and perceived by the world as a particular gender, or if they have a particular genital configuration, has yet to be explained by anyone involved. For the avoidance of doubt, because many legislators didn’t know this, a spouse has no say in change of legal name and going “full time”, in starting hormone treatment or in surgery. There is also no other situation that partners might find just as objectionable, such as religious conversion or racking up huge debts, that require a special veto clause in legislation rather than using the generic marriage-broken-down-irretrievably clauses. Such “you must have your husband/partners consent” clauses were, rightly, removed from legislation a long time ago. GRCs are unique in having this reintroduced.

They have also made no move to restore marriages stolen under the old system.

On the plus side, it doesn’t look as if someone can annul their marriage just because their partner had a GRC from before they were married if they’re in Scotland. That’s something they have right historically, at least.

But it’s almost as if they just copied what Westminster did and were not paying attention.

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As people may already be aware, the government refused to meet the trans community half way on the spousal veto issue. This means the partners of trans people who feel they have an axe to grind would be able engage in delay tactics and stop legal gender recognition for a protracted period.

The ball is basically in the government’s court, but only Lords can vote on individual issues now. Lords are UK wide, so there is no local Lord for you to lobby and MPs will now only get a yes/no vote on any amendments suggested by the Lords. However, the Lords still have report stage and third reading to propose their amendments. There is a chance the government might come back with something positive as they were clearly caught off-guard and Baroness Stowell, the government spokesperson in the Lords, was clearly unprepared to handle issues being raised.

With that in mind, for those wanting to influence the likely outcome of the decision, it would do no harm to write to Baroness Stowell. I’ve mailed her, at stowellt (at) parliament.uk, with the text below and I’d encourage others to do the same.

Some tips:

  • A personal note will carry more weight than a generic one, but feel free to use the text exactly as it is below.
  • Give and credit where it’s due. There’s no point in giving way on issues if we don’t acknowledge them and just rant in future.
  • Be polite. There are enough “swivel-eyed loons” attempting to participate in politics already and they get ignored.
Dear Lady Stowell of Beeston,

Following the committee stage of the Marriage (Same-Sex Couples) Bill in the House of Lords, I am
pleased to hear that the government is thinking of reintroducing the GRC fast-track procedure.
This will be important for married trans people who have previously chosen not to seek legal
recognition but now wish to take advantage of the ability to do so without dissolving their
marriage. In many cases, the doctors involved in their treatment may no longer be in practice
which would make use of the standard procedure unviable.

I hope the government can make the reintroduction permanent.

However, the news that there was no were no plans to address the spousal veto issue is disappointing.
I would like to echo the sentiments given in the house by Baronesses Barker, Gould and Butler-Sloss.
The proposed amendment, itself a compromise from earlier amendments, granted the barest minimum
protections to trans people from spouses engaged in delay tactics and allowed all concerned to
quickly resolve what can be an undesirable situation all round.

You committed to writing to Baroness Thornton addressing many of the points raised and I would be
grateful if you could, if possible, also include me in that reply.

It is notable that during the passage of the bill, no amendments have yet been accepted by the
government that grant any rights whatsoever to trans people, only to their spouses. Please do not
continue this trend in the House of Lords.

Yours sincerely,

(I included my address at the end, so she will know I’m in the UK)

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Today was the third and final day of the House of Lords committee stage for the Marriage (Same-Sex Couples) Bill. First of all, some background on the current state of the bill for trans folk – overall, it’s progressive because it removes the forced-divorce requirement of the current situation. Even if your spouse was 100% cooperative and happy to remain married, the lack of same-sex marriage in this country (And of opposite-sex civil partnerships, for those in civil partnerships) meant you had to divorce and get re-married/civil-partnered in order to obtain gender recognition.

Beyond that, it appears to have been the position of government to try to limit trans rights as much as possible.

A whole raft of possible improvements were suggested, many of which were raised by trans activists over the course of several meetings with civil servants. I’ve covered some of them here, although removal of gendered language (i.e. say “partner” instead of “husband/wife”), survivor pensions and reinstatement of the old fast-track GRC process were also discussed. (More on fast track later)

Several months on and things are not looking good.

The government has shot down almost all of the amendments, granting only survivor pensions during the passage of the bill through the commons. (Notably, the one suggestion that benefits not just cis people but cis wives specifically – it only has a beneficial effect for the wife of a trans woman)

This left trans activists in the unenviable position of deciding where to concentrate limited political capital, with the remaining items eventually being spousal veto and fast-track. Even then, the abolition of the spousal veto to gender recognition completely was not going to be possible – instead a watered down version (Amendments 46ZA through 46ZG) was produced which time-limited it to 6 months, after which a full gender recognition certificate could be applied for. (12 months if the partner started proceedings first)

With the veto in place, the entire financial and emotional burden for initiating annulment proceedings falls upon the transitioning partner, as if it is their fault for being trans. It also becomes possible for a particularly non-cooperative partner to delay or even stall proceedings totally for many years, possibly using someone’s legal rights as a bargaining chip to gain benefits or just out of malice. (This sort of behavior is all too common in acrimonious divorces, sadly – even to the extent of pre-emptively starting proceedings and abandoning them to prevent the other side from initiating divorce themselves and delaying things as much as possible)

Baronesses Barker and Gould proposed the amendment in the House of Lords today, with the relevant discussion starting from 3:41pm. (Hansard transcript also available.) There were some particularly good quotes from Baroness Gould: “No other area of law requires spousal consent for a change in the relationship…formal spousal consent is a new concept in law. Without this amendment, the government is saying to trans people that they are somehow second class citizens“. Baroness Butler-Sloss also spoke up in favor meaning the amendment had, significantly, support from LibDem, Labour and Crossbench peers.

The government response from Baroness Stowell was, essentially, “no, we’re not going to do this” with her response going so far as to suggest the decision to end a marriage because of gender recognition was one that was entirely the problem of the trans person. However, it was ill-prepared and they were clearly not expecting to be pushed on the issue. Eventually the amendment was withdrawn (This is normal practice, amendments do not generally get pushed to the vote, particularly at this stage) with the government committing to have more discussions and report back in writing.

Not a victory by any stretch of the imagination, particularly given that this was supposed to be a compromise amendment for the government to meet us half-way in the first place.

The one small glimmer of hope is that there may be government amendments at the next stage to re-introduce fast track: The mechanism by which someone who has transitioned for a long period (several years) to obtain a Gender Recognition Certificate with reduced requirement for reports from doctors, many of whom may no longer be practicing. Despite this, there is much predictable anger on Twitter at the government’s point-blank refusal to consider any trans rights, even when compromises are proposed.

Finally, to clear up a couple of misconceptions I’ve seen elsewhere:

  • The interim Gender Recognition Certificate-based procedure to dissolve the old marriage and re-contract a new one on the same day when you’re issued a doesn’t work in practice due to the way the paperwork is handled. (I think it’s only been successful once) Usually there is a delay of several weeks, especially if you’re trying to organise a ceremony around it. There would be all sorts of inheritance problems if one partner dies during this problem but thankfully I don’t believe this has ever happened.
  • The ability for a spouse to divorce someone who had a GRC before they were married (Unless they can prove they told them about it somehow) isn’t introduced by this bill – it’s from the original Gender Recognition Act 2004. However, it’s something that was raised as part of this bill and the government refused to change. (For some reason, they consider existing “unreasonable behavior” divorces to be insufficient – trans folk need to be punished for their “deception”.

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In the last few days, Reuters have produced a graph titled “Top 10 countries requesting for user data from tech companies“. It’s been circulated widely, having been picked up by Techspot, ISPreview, Gizmodo, io9 and others.

It is also very misleading because it reports the absolute number of requests, ignoring the relative size of the countries concerned. I have covered this before with Google’s transparency report, analyzing the data based on the population of the countries concerned. The Reuters graph goes beyond the Google data and includes the more recent Twitter and Microsoft/Skype transparency reports. So, I have repeated the same exercise and duplicated their graph with more representative numbers:

User data requests 2012

For comparison, here is the Reuters graph. (Click for a larger version) Reuters-data-requests

There’s quite a difference – the US drops to number 10. Arguably, you could say that Luxembourg and Malta are unreliable data points due to their relatively small size, but that still puts the US at number eight. The raw data is reproduced below.

Rank Country Population Google Microsoft Skype Twitter Total Requests per million people
1 Luxembourg 537,000 0 55 98 0 153 284.9
2 Taiwan 23,174,528 561 4,381 316 0 5,258 226.9
3 United Kingdom 62,008,049 2,883 9,226 1268 36 13,413 216.3
4 Malta 416,055 0 75 5 0 80 192.3
5 France 65,447,374 3,239 8,603 402 12 12,256 187.3
6 Turkey 72,561,312 261 11,434 0 11,695 161.2
7 Australia 22,469,943 1,107 2,238 195 0 3,540 157.5
8 Germany 81,802,257 3,083 8,419 686 0 12,188 149.0
9 Hong Kong 7,173,900 0 1041 0 0 1,041 145.1
10 United States 310,314,000 16,407 11,073 1154 1,494 30,128 97.1
11 Belgium 10,839,905 227 727 39 0 993 91.6
12 Portugal 10,636,888 384 548 1 0 933 87.7
13 Singapore 5,076,700 185 179 4 0 368 72.5
14 Spain 46,072,834 978 1,981 11 0 2,970 64.5
15 Netherlands 16,678,200 59 859 2 0 920 55.2
16 Italy 60,402,499 1,687 1,519 96 0 3,302 54.7
17 Norway 4,985,870 37 187 14 0 238 47.7
18 Chile 17,133,000 210 530 0 740 43.2
19 Sweden 9,580,424 0 326 43 0 369 38.5
20 Denmark 5,574,000 66 128 16 0 210 37.7

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It’s been hard to miss the coverage of revelations that the US government has been scooping up data from tech giants such as Apple and Facebook – you’ve probably already seen newspaper reporting on the Prism project slides.

What’s surprising is that people think this is cause for renewed concern. Data in the cloud really should not be considered secure. The Americans have some sort of quasi-legel process for handling this, but I doubt other foreign intelligence is And if you are a big corporate, your data – blueprints, designs, release and pricing information – is probably of more interest to them too, as they can then give it to their own companies to produce cheap knockoffs.

And it’s not like the media in this country are any better behaved either. Personally, I regard all data on Facebook as near-enough public. Privacy settings stop my neighbours snooping but little else.

Rather more concerning is the UK involvement in this. According to the Guardian, “Prism would appear to allow GCHQ to circumvent the formal legal process required to seek personal material such as emails, photos and videos from an internet company based outside the UK.”

This is interesting in light of the recently proposed Communications Data Bill. If the security services already have access to the data, what was the bill for? One option is that it would have allowed open use of Prism data in UK courts, without raising questions as to it’s origin.

Another is rather more concerning: In exchange for Prism data we were expected to be able to generate similar data for the US on data travelling through UK-based servers and networks, building a global network of surveillance by states on each other’s citizens.

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As we expected, the Queen’s Speech yesterday did not include a revised “snooper’s charter“. Well, mostly – the Guardian thinks otherwise, but whilst there are areas where the Civil Service are still pushing for better tools to tackle the war-on-terrorists-and-paedophiles they’ve chosen a different tack this time.

The general impression I’ve received from the briefing notes is that whoever prepared them has no idea what they are asking for.

Here is the except from the Queen’s Speech Briefing Notes (PDF link, page 74). I am quoting this at length because the language is important to the following discussion.

When communicating over the Internet, people are allocated an Internet Protocol (IP) address. However, these addresses are generally shared between a number of people. In order to know who has actually sent an email or made a Skype call, the police need to know who used a certain IP address at a given point in time. Without this, if a suspect used the internet to communicate instead of making a phone call, it may not be possible for the police to identify them.

The Government is looking at ways of addressing this issue with CSPs. It may involve legislation

Firstly, let’s look at the notion that a network can associate an IP address with a person. This is fairly easy to refute, because you just have to consider most households have shared computers. So, what about at a computer levels? Well, many households have a single account on a computer and many devices (e.g. iPads, phones, Gaming Consoles) and older operating systems do not have the ability to handle multiple users at all.

This problem is relatively easily solvable, technically. Simply require service providers to operate gateways that end users must log into individually using centrally-issued ID prior to accessing the internet. The technology is there because many large companies run such systems to track abuse and this is certainly a much simpler challenge to solve than previous suggestions around logging everything that happens on the internet. Politically however, such measures would be suicidal. I don’t believe this what is being proposed.

Rather more likely it seems, is the ability to identify an end device, rather than end user. The current generation of IP addressing – IPv4 – does not have enough address space to do this, hence the deployment of Network Address Translation (NAT) to share an IP address between multiple users. Your home broadband probably uses a single public IP for everyone in the house, and large organisations will also use one or a very few public IP addresses for all of their corporate traffic. This is necessary because there are just over 4 billion addresses theoretically available and significantly less than that by the time all the overheads have been taken into account. Ignoring that organisations like Facebook, Twitter and so on need IP addresses themselves to host their content, that’s still less than the number of people on the planet. And many of us have more than one device needing an address.

The next generation of IP, IPv6, has rather more addresses. (Just over three hundred trillion trillion trillion) But IPv6 is not ready yet, and mandating that everyone in the UK use it and could not ever use the older version again would cut us off from large portions of the internet. Economic suicide this time. Even if we could do this, privacy concerns with IPv6 have already been of concern to the technical community. Originally, under a system called EUI-64, the last part of your address was the hardware MAC address of your computer, a unique number rather like a serial number. People realised this allowed devices and users to be tracked rather easily, so they came up with a simple solution – every time your computer connects to an IPv6 network, the last bit of the address is random and changes each time.

As a result, if IPv6 is the solution the mandarins are thinking of, they’ll need to have a specific UK version of computers with this privacy feature disabled. Possible, but difficult to enforce even if they find a way of forcing IPv6 deployment.

There is only one interpretation of the briefing notes that remains that makes sense and the clue is in the last line regarding legislation and service providers. What they are concerned about is large scale address sharing, referred to as Carrier Grade NAT. (CGN) With this, millions of users, such as on Vodaphone or O2, are behind a single IP address. As old-school IPv4 addresses run out, big broadband operators may roll this out for those on fixed lines too. (BT are currently trialling this, for example) The police and security services want to make sure the providers not only log all the technical information for these so they can identify a single household or mobile device, but that they keep the data for long enough to be useful. Where such data is logged by service providers, it is typically only kept for long enough to generate capacity planning reports and handle network abuse – hours or days. Law enforcement works on a much longer timescale, typically weeks or months by which time the data has been thrown away.

However, it would appear the powers required to do all this are already enshrined in the existing Data Retention Directive. So it’s still a little unclear why all this needs to appear in the Queen’s Speech.

As is typical with internet policy matters coming from the government, it’s all a bit vague.

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Dear The Right Revd and Right Honourable The Lord Carey of Clifton, FRSA FKC,

I noticed that you have published your entry into the Oppression Olympics on the front page of today’s Daily Mail. I’ve assessed your entry and unfortunately found it lacking. You will need to try much harder if you want to get on the medals table.

Firstly, “persecuted” groups don’t usually get their ex-leaders screeds published on the front pages, so that might have been a mistake. Also, the repeated references to “Lord” just highlight the automatic membership of parliament that you and your co-persecutees get, so perhaps you should have asked them to strip that out of the article too. Oh, and being a gendered title it also gives away that you’re male. Minus several oppression points.

At least there is no photo in the paper version, because the one in the online version gives away that you’re white. And I don’t think that stick is for walking either, so it appears you’re able-bodied.

Choice of other groups to go after is important too. Attacking the gays probably wasn’t great, perhaps you should have picked a less marginalised group instead? A bit tough I know, because you are a member of the majority religious group in this country.

Finally, I’ll admit to making assumptions here but as you’re married and an archbishop I’m going to hazard a guess that you’re straight. And probably not transgendered, either.

Sorry, what was the basis for your claims of persecution as a middle-class, white, able-bodied, straight, cis-gendered member of the religious majority with an automatic seat in parliament again?

Yours,

Zoe O’Connell

(A bisexual trans woman of uncertain religious beliefs in a same-sex polyamourous relationship whose communities have much to gain from same-sex marriage, but still able-bodied, middle class and white and able to recognise she has a huge amount of privilege)

P.S. Luckily, I don’t think you speak for the majority of Christians. Or even the majority of members of the Anglican church. Pretty sure you’re not speaking for most of the ones I know, anyway.

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For those who have followed my previous commentary on such cases, much to do with the latest case will not come as much surprise. What is new is that this one was in England, thus increasing the threat that trans folk south of the border might risk criminalisation for entering into a relationship, as well as existing concerns north of the border.

What is not new is that a guilty plea was entered, so this has (by my understanding) not set case law. As far as I have been able to ascertain, no defended case of “sex by deception” bought against a person with a possible trans element has yet succeeded or even proceeded to trail in the UK.

Usual caveats apply in terms of the reporting. In this case, the only source I can find that has reported directly is the Daily Mail. Other outlets have picked up the story, but the timing and quotes used all indicate they’re regurgitating the Daily Mail story. This makes figuring out what actually happened rather more tricky than usual.

In brief, a couple had been involved in a long online relationship since they were barely teenagers but not met in person. They eventually met when both were over 16 and had sex. As a result of McNally, the defendant, being outed they were arrested and charged with six counts of sexual assault by penetration. (The age gap appears to be around the 12 month mark. The Daily Mail deliberately tries to give the impression it is more by quoting the age of one person at the time of the incident and the age of the offender now. This is a routine trick they use)

The prosecutor specifically stated the victim was “sexually assaulted…by deceiving her into believing that she, the defendant, was a boy” and the judge is quoted as referring to it as a “selfish and callous deception” when sentencing and there is no mention of any factors besides gender in the article. I find it difficult to imagine that someone using, say, a prosthetic penis or hand whilst engaging in any intercourse would end up in court. Rather, this case is more about “gay panic” – straight, cis folk being “tricked” into gay relationships by presumed-fake trans identities.

It is not made entirely clear what trans history McNally has and it is entirely possible they will end up identifying as lesbian. However, the defense does mention confusion over gender issues.

The sentence was for three and a half years plus a lifetime on the sex offenders register – years-long prison sentences are pretty much expected with sexual assault cases, which is how this was tried.

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(Warning: All the news stories linked in here are highly transphobic, with references to acquired genders being a “pretence” or “fake”)

It looks like we have another case of someone trans being prosecuted for “obtaining sex by deception“. I am always wary of mainstream press coverage of cases involving trans people, because the facts can so easily be distorted either through ignorance or, in the case of The Sun’s article on this incident which I’m not going to link to, maliciously.

However, what has been widely reported seems to indicate that in this case, the person being prosecuted was definitely a trans man – they had presented as male for many years, with the STV coverage specifically using the word transsexual and they were already seeing a counsellor. One report also mentions they are on a gender reassignment programme, presumably a reference to a Gender Identity Clinic.

In summary, Wilson plead guilty to two counts of “obtaining sexual intimacy by fraud”. In the first case, this sexual intimacy apparently went no further than kissing and cuddling, with Wilson refusing to engage in anything more.

The second, later case is problematic in that actual intercourse took place and their partner was underage at the time, having mislead Wilson about their age. There was no prosecution for that mentioned however, so it would appear that Wilson’s actions in immediately terminating the relationship and refusing to see her any more when this was revealed were the correct course of action here.

This case makes it clear that the police and courts in Scotland regard failing to disclose trans status prior to kissing/cuddling someone as a criminal offense. Proving you told someone is of course tricky, so unless you’re very “out” there could be trouble ahead.

Featured on Liberal Democrat VoiceWilson has ended up on the sex offender’s register as a result. Full sentencing has not yet taken place.

Edited 1315, 8th March: From the Scottish Transgender Alliance:
“In partnership with Trans Media Watch, we have just received advice to the effect that the charge of sex by fraud in this case does not relate to Wilson presenting as male but instead relates to the use of a substitute object under the pretence that it was a penis and therefore without consent. This means that reporting that states Wilson is in trouble over gender presentation is inaccurate. Please help us to raise awareness of this. We need as many of you as possible to write to the newspapers (and any other media outlets covering this) and explain.“

Edited 1800, 8th March: Initial assurances that the conviction was related to the “use of a substitute object” were incorrect – it has now been confirmed the prosecution was related to identity.

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A number of amendments for trans people have been submitted formally in parliament, but unless you’re a legal whiz with some spare time to hand it’s not immediately obvious what they are. So, here’s a quick guide to what the relevant ones do…

Amendment 4 – Prevent voiding of marriages with a trans person

At the moment, a spouse can have a marriage voided (As if it had never happened) by claiming they did not know that their partner had a gender recognition certificate at the time they married, and this amendment removes this. There is no similar provision covering, for example, religion or similar and creates a situation whereby a spouse who does know about their partner’s history later claims ignorance if their partner is not very publicly “out”.

Amendment 5 – Remove spousal veto of legal recognition of gender

Because a marriage would, under the existing system, need to be converted to or from a civil partnership on one partner transitioning, there is a requirement for an interim Gender Recognition Certificate to be issued and the existing partnership be annulled prior to full recognition of legal rights. This was done to prevent a spouse being forcibly re-entered into a new relationship (Civil partnership or Marriage) they didn’t want and could not get out of due to the one-year minimum term before divorce can be applied for in a new relationship.

This is no longer the case, but the bill did not reflect that fully. Instead, it allowed a partner to delay or potentially block someone getting full legal rights in their acquired gender by refusing to give consent, a situation that would also incur additional costs for the trans person by forcing them to use the interim GRC process.

The amendment levels the playing field by only issuing an interim GRC if both parties request it, rather than simply if the spouse refuses consent. (As it stands, it also causes an Interim GRC to be issued in the case of a civil partnership, because the current bill does not allow for mixed-sex civil partnerships)

It takes 2 years post-transition to get a GRC, so an unhappy spouse still has plenty of time to apply for divorce.

Amendment 6 is tidy-up related to amendment 5, removing clauses that are no longer relevant.

Amendment 7 – Restoration of lost marriages

This simply allows marriages that had to be annulled so that someone could get legal recognition to be reinstated as if they had never been broken. If you want to know more, Sarah wrote about this for the Huffington Post.

Amendment 8 – Reissue of marriage and birth certificates

The bill did not make reissue of marriage certificates explicit, but this amendment does. It allow allows birth certificates to be reissued, with consent of all concerned. (The other named parent if the child is under 16, otherwise the child themselves)

There is still more we’d like to get done (Fixing pensions issues and swapping gendered terms like husband/wife for gender-neutral and non-binary terms like partner) but time is limited! Hopefully they’ll get in too eventually.

Of course, tabling amendments doesn’t mean they will pass but it does mean we are well on the way.

Featured on Liberal Democrat VoiceAnd finally, many thanks to Dr Julian Huppert MP for his help getting the amendments tabled.