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To tidy up a few loose ends, now that the Marriage (Same-Sex Couples) Act 2013 is an Act and not merely a Bill, here is a summary of its effects on the trans community.

None of this takes effect until the necessary procedures are put in place and the Secretary of State gives it the green light to go ahead – that’s not currently expected to happen for at least a year. As things stand, the first same-sex marriages will happen before the trans-related provisions are put into effect. It is also possible that procedures in practice will differ slightly from what’s intended from the legislation for practical or other reasons. We saw this happen with the Gender Recognition Act 2003.

Applying for a Gender Recognition Certificate

If you are applying for a Gender Recognition Certificate and you…

  • Transitioned after 2008 & are not married or civil partnered then there is no change.
  • Transitioned before 2008 & are married at the time of application, then you may be able to use the “Fast Track” procedure. The date is set at 6 years prior to the commencement of the relevant section and we don’t know when it will come into force yet, so it may end up being a cutoff date in 2009 if commencement doesn’t happen until 2015. The caveats for this are:
    • Your marital status at the time of transition makes no difference. If you transitioned a decade ago but didn’t get a GRC because you were married but have subsequently been widowed, you can not use the Fast Track process. Conversely, you do not need to have been married at the time of transition and could get married for the sole purpose of obtaining a Fast Track GRC
    • You must be “ordinarily resident” in Great Britain, i.e. excluding Northern Ireland. This appears to have been put in place to avoid complications with Northern Ireland but unfortunately rules out anyone born in this country and living abroad.
    • “Fast Track” isn’t any faster from the Gender Recognition Panel’s point of view, it is a reduced documentary requirement – evidence of surgery or a diagnosis of gender dysphoria. I do not know if anyone tried this under the old Fast Track system when the GRA2003 first came into force, but it would appear that the surgery does not need to have been as an adult. This potentially allows someone with an intersex condition who is married to obtain Gender Recognition, something they were previously unable to do due to the lack of a diagnosis of gender dysphoria.
    • The spousal veto still applies to fast track applications, regardless of how long you have been transitioned for.
  • Are married at the time of application, then you can apply for Gender Recognition and remain married. Recognition would be subject to the Spousal Veto. If the spouse does not consent, then the old process applies which can take some time and is more expensive – apply for an Interim Gender Recognition Certificate, initiate annulment proceedings and hope your spouse isn’t looking to drag things out.

    Interim GRCs do not grant any rights beyond the ability to apply for annulment of a marriage. It is likely quicker to apply for a normal divorce as that can be done without needing to wait to become eligible for a GRC. The intent of the Interim Gender Recognition Certificate was largely to allow couples to remain together after transition, as you cannot apply for a normal divorce if still living together.

  • Are civil partnered then you need to convert your civil partnership to a marriage first, then apply for gender recognition as above. If you do not wish to convert to a marriage and remain together as a couple the only option is the Interim Gender Recognition Certificate and annul the Civil Partnership.

    This is a consequence of mixed-sex civil partnerships being unavailable.

After obtaining Gender Recognition

  • If you gave up your marriage and potentially pension rights under the old system by getting an Interim Gender Recognition Certificate and annulling the existing marriage/CP and were re-married/CPed, there is no mechanism for restoring that relationship or pensions.
  • The situation for a wife of a trans woman (And only in that specific combination) is improved in the case where the trans person dies first and the wife is left with a survivors pension.
  • Sections 12(h) of the Matrimonial Causes Act 1973 and the civil partnership equivalent, section 50(e) of the Civil Partnership Act 2004 remain in force – if you acquired gender recognition prior to getting married/civil partnered and your partner claims they did not know this, they may be able to get the marriage or civil partnership voided.
  • The wording to be used in marriage ceremonies abd on marriage and birth certificates is, at this moment, unchanged. There is likely to be some further work in this area with post-enactment secondary legislation.

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The below was sent to the BBC today at 23:18. It will be interesting to see how long it takes them to fix the article – or if they even bother, given they don’t usually cover trans issues at all. (I count exactly one direct reference since the start of June – the Cory Mathis bathroom case in the US. The remainder are references in passing, generally as part of defining what “LGBT” means and discussing pride events.

It seems you’re more likely to get referred to on BBC News for being a cis person making boots in large sizes or being a cis person getting an MBE for volunteering to help trans people than you are if you’re actually trans and campaigning on something. (The first story does mention a trans person in passing. It old-names them and uses some problematic and transphobic language presumably due to missing context in their quoting)

Dear BBC,

I am writing in relation to the article “Same-sex marriage set to enter law later this week” posted today on BBC News Online. It says:

“MPs decided not oppose a number of minor changes agreed by the House of Lords. Among these were protections for transgender couples, which will allow people to change sex and remain married.”

Ignoring the misleading statement about “opposing minor changes” (They were mostly, if not entirely, government amendments in the first place) the mention of amendments for transgender couples is incorrect. The provision to allow people to gain recognition of their gender whilst staying married, subject to a spousal veto, was part of the original bill. The Lords amendments altered the wording used to define the spousal veto and reintroduced a simplified version of gender recognition for those who transitioned many years ago.

The amendments would not allow anyone to gain gender recognition and remain married who would otherwise have been unable to do so.

Regards,

Zoe O’Connell

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The latest round of amendments to the Lords report stage of the bill are out, including government amendments which are almost certain to pass. There is nothing on the spousal veto yet which is not a good sign.

What has been included is reintroduction of the old Gender Recognition “Fast Track” process. As originally enacted back in 2004, this allowed people who had transitioned for a long time (6 years) an easier route to getting recognition. Rather than needing two reports from doctors, you only need one – either a diagnosis of gender dysphoria or evidence that you’ve had surgery to alter “sexual characteristics”. It was particularly important to those who transitioned many years prior but whose doctors were no longer practicing, meaning they could not get proper medical reports. It was however time-limited to applications for two years following the passage of the bill.

The gotcha with the reintroduced version is that you have to be married to take advantage of this. It doesn’t matter when you get married, so you could get married specifically for the purpose of getting Gender Recognition, as long as you transitioned six years ago. I can actually see this happening in some cases, it’s not just theoretical, as people get married for immigration reasons already.

If your partner has died before the bill passes or your marriage survived transition but you divorced later for other reasons you’re also out of luck and would have to use the standard process. Unless you remarry.

One could argue that this is actually incompatible with the Human Rights Act as it discriminates against single, divorced and widowed people, but I don’t know if such a claim would stand up in court. If anyone has about quarter of a million pounds to spare and wants a fast-track GRC, you could probably find out by taking this all the way to the European Court of Human Rights.

The six years requirement for a fast-track GRC is also bizarre. Firstly, it’s not six years full time, it’s six years full time prior to the passage of the act. So if you’re currently five and a half years post-transition you may be out of luck.

Secondly, and this is the most objectionable part, the spousal veto is explicitly included. So you can have married someone and stayed with them for six years post-transition or even married/civil partnered them after they transitioned, and the government is still asking you for permission for them to get legal recognition.

Whatever the actual intent, that just comes across as a deliberate attempt to be spiteful by the government.

It seems that the civil service spends much of it’s time trying to figure out ways of limiting any rights granted to trans folk as much as possible. The law in this country would be in a much better state if it spent that effort working towards equality instead.

Looking at the specific requirements, the reintroduced version is broadly similar to the original. The surgical requirement as an alternative to a diagnosis of gender dysphoria is somewhat genital essentialist and a concern for those who can’t undergo surgery for medical reasons or would prefer not to, but in line with how thinking was a decade ago. If six years full time on it’s own isn’t enough to convince the government you are serious about your gender, I don’t know what is!

On the flip side, this is possibly good news for some of those with intersex conditions, given no diagnosis of gender dysphoria is needed and the nature, timing or consent as to surgery isn’t specified. I do not know if the Gender Recognition Panel was ever asked to consider such a case under the old fast-track rules, so I can’t guess if they’d grant such recognition but the law suggests they should – it states the panel “must grant the application” if they are happy the applicant has “undergone surgical treatment for the purpose of “modifying sexual characteristics”.

PS As a reminder, you can write to Baroness Stowell in support of ending the Spousal Veto. The Coalition for Equal Marriage have also produced this handy form you can use to register your views.

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Below is a roundup of all the coverage of the McNally appeal result that I am aware of. This should be a complete list, so if I have missed any please let me know.

Many of the articles and blog posts contain swearing or homophobic or transphobic language, although usually as part of the comments rather than in the main body of the text.

Other than the first three items which are notable because of where they have been published, entries are listed in date order.

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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.

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The equal marriage bill (PDF Link, HTML links are inline below) has finally been published. From a trans perspective, schedule 5 is the interesting bit and it’s pretty much as expected from the consultation response.

There will be no equal civil partnerships, but for those seeking a Gender Recognition Certificate it’s possible to convert to marriage first. (Section 9) This is an extra set of hoops to jump through which isn’t ideal, and seems to be at odds with the initial claims that conversion and issuing a GRC could be done as a single process. That it’s possible at all is positive however.

Supposedly you can put in a simultaneous Gender Recognition application in the (unlikely) even that both halves of a civil partnership transition and keep the civil partnership. However, the intention was also that annulment and remarriage for a GRC under the old rules would also happen on the same day, whereas in practice that’s not the case.

The bill makes it clear that any converted marriage is to be treated as continuous from the original date of marriage.

If you’re married and your partner consents, you can get a Gender Recognition Certificate and stay married. (Schedule 5) Foreign marriage and marriages in Northern Ireland would still cause a problem here by the looks of things, but realistically there isn’t much the UK Government can do about those.

I don’t see anything on consummation in the bill, which might be of concern to anyone who is non-op. (I.e. retaining their birth genitals) I need to read the bill cover-to-cover to check that one though.

Finally, what’s missing is any provision to restore marriages lost under the old forced-divorce Gender Recognition provisions. That will upset many people,

(Caveat: I only saw the bill for the first time 25 minutes ago so I may have missed something. I’m sure we’ll hear soon enough from those with more time to analyse it)

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In the wake of the #TransDocFail hashtag, it has become clear that bad or abusive healthcare at the hands of medical professionals is still as common as it has been historically. Many trans folk have a simple fix for this: don’t tell random medical professionals your full history. This is tougher for trans men but in the case of trans women, “I take HRT and have no uterus or ovaries” tells them everything they need to know. The why simply does not matter one bit in the vast majority of interactions.

But the NHS wants your data, ostensibly because it increases patient safety, and Jeremy Hunt has agreed. Yet again, this is an example of how something that might give a benefit for the majority being wholly unsuitable in both principle and practice for already-marginalised groups. And it is not just medical professionals who will have access to the data: those involved in social care will also gain access.

I doubt that the trans community is the only group affected. One person has already expressed concern that those with mental health issues may also face discrimination. In just the same way as a well-meaning but clueless doctor can assume any complaint must be related to transition, obviously physical conditions often get mistaken for symptoms of mental health conditions in patients who have such a diagnosis.

Not being completely stupid (Hey, stop sniggering at the back) Hunt has promised a opt-out for those that don’t want to be on the new system, just as you can opt-out of the current NHS “Spine” summary database: “You absolutely have to have a process in place for people who don’t want that [data sharing] to happen“.

But opting-out of the spine is tricky, and if you’re obviously opted out of a database that everyone else is on it raises questions.

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This article originally appeared on Liberal Democrat Voice.

I have followed recent mainstream media events unfolding around the Trans community with a mixture of excitement, anxiety and sadness.

Excitement, because it is rare that Trans issues get coverage that isn’t designed to portray us as perpetrators of some hideous evil. Even though the stories started with biased coverage in the Guardian about a doctor under investigation by the General Medical Council, it turned into something more positive when the #TransDocFail hashtag lead to discussions on BBC Radio. Even the continuation of bad reporting had a silver lining, when Julie Burchill’s Transphobic screed in The Observer lead to widespread condemnation from the Internet at large and calls for her to be sacked.

Trans people have put up with biased reporting and name-calling for years, even suffering from the ignominy of having transphobic writers nominated for awards by LGB campaigning groups. The difference here is that, oblivious to the turning of the tide when it comes to hate speech, Julie Burchill and the editors of The Observer finally crossed a line that mainstream opinion could not ignore.

Anxiety, because I worry what will happen to stories like this when the mainstream press gets hold of them. Besides the usual errors, such as erasure of trans men and use of “transsexuals” as a noun rather than an adjective, coverage has been on the whole pretty positive. Except for one point: The anti-Trans lobby has been allowed to rewrite history in portraying a “baying mob” that hounded Suzanne Moore off Twitter, which was the catalyst for Julie Burchill’s piece. In reality, although someone picked her up for her “Brazilian Transsexuals” comment online, that sort of behaviour is so common that, against the background of lady-boy jokes on BBC TV, that it would not even warrant a footnote in the annals of Trans history. It was her subsequent abusive response to polite criticism from non-Trans people on Twitter including the phrase “lopping bits off your body” that angered people.

If there was a mob on Twitter, then the leader was Suzanne Moore who reacted to valid criticism with abuse before flouncing off the site for a couple of days. But despite some disgusting language from Julie Burchill, her version of the “facts” has been accepted almost unquestioningly by many, because it appeared in a national newspaper.

And sadness because the reaction of some has been to complain that people expressed an opinion against hate speech, accusing those who dare speak out against oppression of being “identity politics obsessed lefties”.

Of course, my challenge to this on Twitter (After the piece was publicised on Twitter) was characterised as “intimidating” the proving the point, despite the acknowledgement that I was being polite. I do wonder about the mental processes of anyone involved in politics who thinks a polite exchange is intimidating. Have they ever been in a council meeting?

The crux of this argument seems to be that if anyone dares mention Trans issues at all, they will be mercilessly attacked. The trouble is not that a non-Trans person mentioning Trans issues will cause outrage, as I do not see any such response to excellent posts by Caron Lindsay and Jennie Rigg. The issue comes when you assume a position of privilege but act from a position of ignorance.

Oppressed groups have recently found a voice via the Internet, and sites such as Twitter have recently boosted this even further. Journalists such as Julie Burchill (And others before her, such as Suzanne Moore, David Batty and Julie Bindel) have had a voice via the pages of The Guardian and The Observer that enables them to reach a million people. A voice that, according to the Leveson report, “fails to treat members of the transgender and intersex communities with sufficient dignity and respect” and “continues to refer to the transgender community in derogatory terms, holding transgender people up for ridicule“.

Complaining that these people are being silenced when they have such a loud voice that has gone hitherto unchallenged is simple oppression of those who have never had that voice.

If there is an issue with the kind of pieces these people have been writing for years expressed on Twitter, then consider that the internet is revealing decades-old inequalities and injustices, not creating them.