Responding to the Government Announcement
The hows and whys of handling the publicity around the draft Gender Recognition Bill
… and what happens next
11th July, 2003
“Thirty-three years after the High Court made us non-people, the end of our legal nightmare is now in sight”
Those of you who have read PFC’s press release this morning will have noticed that the only area where we criticise the draft bill is in its requirement that existing marriages be dissolved before trans people can complete the re-registration process.
Press For Change has obviously considered the draft bill in much closer detail, and we have been working closely with officials in government to help them understand how the crucial details need to be arranged to ensure that the law will work properly for all trans people.
But life is more complex than that: making law is about more than just getting the details right.
I’ll return to the details in a moment, but the first thing I want to explain is how we approached our PUBLIC statement on the announcement.
The crucial thing to remember about the publicity is that the press won’t be covering the story in much detail. A few hundred words (at most) in each of the broadsheet papers, much less in the tabloids — there isn’t much space to get more than one or two quotes from us in there. Similarly, the broadcast news (radio and television) is giving the announcement very little coverage.
So … given that we can only say something very short, what do we want to say to the press? Do we say we like it, that we like parts of it, that we dislike it — or that we’re not sure? That’s about all we can say — there simply isn’t room for much more detail.
The first thing we did was to compare the draft bill against the Five Principles which we published back in 1997.
There we find one substantial failing: the horrible requirement on married transsexual people to dissolve their marriages before continuing. As you’ll have seen, we have made it very clear that we want that provision changed … though, sadly, I believe it is unlikely that we will succeed. (I’ll explain more on that in the next few days)
But then look at the other items on our checklist. Here are six key points to start with:
- Is there provision for people who have not had surgery?
Yes — surgery is not a requirement. (However, to reassure those who think that surgery is important, the draft bill doesn’t ignore surgery — those who have had will be asked for details) - Is there FULL recognition for all purposes?
Yes — no exceptions, no get-outs … the ideas floated in December about exceptions for insurance, pensions and sport have all been dropped - Can trans people marry?
Yes, subject to the same rules anyone else, but with the addition of a requirement to tell our spouses about our trans history before we marry. This is really just a logical companion to the existing requirement to tell your fiancee if you know you are infertile: being infertile is not a legal problem in itself, but you could have a problem if you know you that are infertile and don’t tell your partner. - Is there provision for people born overseas?
Yes — recognition for those already recognised in other countries, and also for those born overseas who have not already been recognisedabroad. - What about people with children?
Trans people with children will be treated no differently when they apply for recognition. Unlike Japan, trans people who have children will not be discriminated against in the recognition process, and the laws specifically says that they retain parental rights and responsibilities. - Is privacy protected?
Yes. The register of transsexual people and its index are specifically excluded from public access.
… and so on, down quite a long list.
On point after point, the answer to the key questions is yes: the draft bill addresses the issues we wanted addressed, in the way we wanted them addressed. It includes things which many trans people have told us over the years that Press For Change could never hope to achieve, such as a non-surgical route to gender recognition.
It is NOT perfect. There are several areas of detail which are ambiguous, and may not provide adequate protection against a future government making unpleasant changes to the implementation of the Act. On all of those points, we will be seeking changes — some of the issues to raise are covered below.
But, coming back to the publicity question, today’s press launch was neither the time nor the place to raise those issues of detail. The draft bill rates very highly on most of our key checkpoints, but fails sadly on one.
We could have decided that with that one major failing, the draft bill should be rejected … but that would have left everyone with nothing. Much better, instead, to try to improve a draft bill which is in other ways very good.
That left us a decision on how to respond to its publication: to welcome it, or say “not sure”. And on that point, the decision was easy.
The government has kept the promise it made to trans people in December. They said they would produce a draft bill, and exactly one year after the ECtHR decision, here it is. In publishing the draft, the minister faced attacks from several fronts: from the religious zealots such as the EA, who oppose it entirely; from those elsewhere in government and the Labour party who argue that the government should not use any of its time to try to help minorities; and from that minority of medics who sneer at us.
Were we, as a community, to leave the minister to hang out to dry?
Would it have been right for us to leave him facing attack from several fronts, without any public supporters, when the people who would benefit from the draft bill were sniping because the draft is not perfect?
That would be no way for us as a community to treat a minister who has had the political courage and integrity to stand up and say for the first time that our rights are fundamental to an inclusive society. It would leave the minister with little confidence that we would ever support his efforts, and leave him on a path where he might reasonably fear he could never satisfy anyone.
So we did the honest thing: we said that the draft bill represents a good overall balance. It is a balance between the need for safeguards to give the public confidence that Gender Recognition will not be abused, and our need for a recognition process which will not exclude trans people and which is not too intrusive or too slow.
We have spent 33 years with nothing, but now the draft bill offers us nearly all we have sought. Government listened to our case, and accepted it: that deserves a warm welcome.
The press does not have time or space to consider all the details: they want to know “do you like it or not?” So we did the decent thing: we said a big “thank you”.
And we didn’t nitpick: a press battle is not an effective way to sort out the details, especially because the press is unlikely to understand the details even if they had the space to consider them. There’s a time for everything, and raising the details now would have been seen all round as nitpicking, important as those details are.
Even more importantly, if a minister is publicly challenged on the details of the draft, he is likely to have to defend them: sadly, the press and public are not kind to ministers who say “maybe it could be better”. Publicly driving ministers into a corner would only make it harder for government to offer the improvements and clarifications we will seek.
Improvements are definitely needed. Like most drafts, this draft bill is not perfect. Here are some of its flaws:
- The final composition of the gender recognition panels could be over-medicalised — we will want that aspect tightened up, though that may be achieved either by a change to the draft bill or by an administrative decision — we’d perfer a change in the bill, but not everything can be bolted down in law.
- The cost of the recognition process could get quite high for applicants, especially if we all have to get reports from consultants. We want to ensure that it remains affordable, especially because so many trans people’s lives have been economically blighted by years of marginalisation.
- There is no provision for existing marriages between two trans people: the draft bill would require their currently valid marriage to be dissolved before they were allowed to remarry each other!
There are many more such points, but I won’t list them all: we are preparing a detailed analysis of the Bill, which will be ready soon. This analysis is very important for all of us, so it is important not to rush it — we have to get it right.
In the meantime, I regret that I have to warn you to be cautious when you consider other commentaries, such as that published on friday by The Gender Trust.
The Gender Trust’s website carries a rushed analysis of the bill … but unfortunately in its haste, it has misread many points. Here are two:
- The GT says that the draft forbids any clergyman to marry a trans person if the church rules forbid that. Not true: there is no such clause in the bill, and the provision of a “conscience clause” allowing a minister to refuse to marry a trans person applies only to the Anglican church. All other churches remain free to refuse anyone for any reason, as has always been the case: only the established church has a duty to marry any couple.
- The bill provides for limited circumstances where a marriage may be annulled by a spouse who did not know their partner was trans. The GT associated this with annulment for mentally incapacitated people or those with venereal disease … but fails to mention that it is also similar to the provisions for people who fail to disclose known infertility. This isn’t singling out trans people — it is part of a general principle that people should be honest with those they are marrying.
Please folks, read the draft bill. Read it carefully. Read Tracy Dean’s roadmap … and see how it would affect you. You’ll reads lots of comments written in haste, but don’t take them as gospel, and don’t rush to hasty conclusions!
Please don’t assume that because the bill doesn’t explicitly say that a particular nasty thing will be prevented, that it is going to happen. And remember — this is only a draft. It can be changed before the final it is laid before parliament, and parliament can amend it.
This isn’t the end of the story.
Some parts of the act will inevitably have to be worded so as to prevent the most flexible processes which the cynics might fear, rather than to prevent the most rigid processes which we would fear … but that doesn’t mean that the actual implementation will be nasty. We’d all prefer a law that prevents all possible forms of nastiness in the recognition process, and that’s what we will keep on seeking … but please remember that the law can still work for us even if we don’t finally succeed in getting that clarity.
The next step will be for the draft bill to be considered by Parliament’s Joint Committee on Human Rights meeting. They will seek evidence, consider it, and publish a report. The government will then revise the draft bill, having considered the committe’s report and other submissions.
As soon as possible, Press For Change will publish a detailed analysis of the draft bill, which we hope will — with your further input — form the basis of Press For Change’s submission to the JCHR. Within the next few days, we will set up feedback mechanisms to register all your concerns and observations. Then we will start to seek the changes that are needed.
We won’t get everything we want. No law can ever be watertight against every last possibility of abuse, and few bills pass through parliament unamended.
Remember too, that this bill doesn’t just need to satisfy us: it also needs to satisfy others, such as members of parliament who are concerned about the possibility of the recognition process being abused.
The government has put in a lot of work to get this draft bill finished, and they are determined that the end result will be a working Gender Recognition process. If they enact a law which excludes lots of us, or which sets up a process which we cannot afford, then it’s not just us who lose … they would be left looking very stupid.
We’re in this together now. Government has started the process of changing the law for trans people, and they are heading in the right direction. Having published a draft bill, they are now committed to seeing it through — there is no going back.
While we sort out the important details of the draft bill, we also have to help keep the process rolling. We have to maintain the constant dialogue we have established with government, where we vocally express our concerns and seek changes, and get honest and direct feedback on what might be possible and what we would like and what’s essential and what would be difficult and why. If we didn’t have that strong a working relationship, and we couldn’t talk freely and directly with officials, it would be much harder to find the solutions we all need. Many, many crucial points have already been resolved through that dialogue.
If we weren’t talking privately, we could all be jumping up and down making loud noises in public. That would have the advantage that you could all see much more of what’s happening, but it would significantly reduce our chances of having our points considered carefully — the government would have to be much more defensive.
So .. take heart from the fact that today has happened, in the timescale promised by the government. We have every reason to expect that the next step will happen in an orderly fashion too.
The publication of a the bill is a very important step in a process which we began ten years ago, perhaps the most significant step short of the actual passage of legislation. So above all, this a time to celebrate: on monday, it’s back to work begin on the details
After working flat out for two weeks in the lead-up to this announcement, I’ll be resting, not celebrating: I’m too exhausted. I’ve stayed up late to finish this email tonight, but now I need a day or two off, and so do Stephen Whittle, Christine Burns and Tracy Dean … and so do all the government officials whose hard work you have seen published today. Please allow us all time to relax and recover over the weekend … then on monday it’s back to work for all of us.