No More Sex Tests
There is no legal test of sex in the draft bill … because there’s a much better way of doing things
Sunday 3rd August, 2003
I’m sure that PFC-NEWS readers don’t need to be reminded of how we got into the legal mess which the draft Gender Recognition Bill is designed to undo. The High Court ruled in 1970 that April Ashley was legally a man, and had always been a man — and that decision came to be applied to all of us, for all legal purposes.
But it’s worth looking again at how that conclusion was reached. It was not a decision made on the basis of what papers April Ashley held, or what applications she had made, let alone how she viewed herself. Instead, the judge in the “Corbett v Corbett” case drew up a set of criteria to decide a person’s sex: he set out a list of factors to be considered, and how they were to be considered, all based on medical and biological information.
The “Corbett Test”, as it became known, is a test of sex. It is more sophisticated than the crude sex-tests once used at the Olympic Games, which often amounted to little more than a simple chromosome check or a humiliating spread-your-legs-and-let-us-have-a-peep. However, the basic principle was the same: someone else would decide what sex you are, and it didn’t matter what you thought.
PFC has argued for many years that medicine and biology have moved on, and that the “Corbett test” was outdated and inappropriate — as well as downright unfair. Many lawyers, parliamentarians, medical experts and scientists have supported that view.
However, the draft Gender Recognition Bill does not set out to create a new test of sex. It does not define in law a new and more humane set of criteria for defining the sex of an individual. Instead, it does something much better: it provides a process whereby a person may ask to have their legal sex changed, a process which is based on a set of questions which fit the reality of our lives. (Note those two important words: “may ask”. Under this bill, nobody has to seek a legal change of sex: it’s entirely optional).
The draft Bill asks four crucial questions of anyone applying for recognition:
- Has a person taken decisive steps to live in the gender in which they believe to be more appropriate? (section 1.4.b)
- Do they intend to live in that gender until they die? (section 1.4.c)
- Have they had gender dysphoria? (section 2)
- Have they undergone any medical treatment? (section 2)
If the answer to all those questions is yes, the answer in the draft bill is yes: the law will recognize your change of gender. Even the medical treatment may not always be necessary: the bill does not make any medical treatment an absolute requirement. The first two questions above are not medical or scientific at all: they are about a transsexual person’s self-identity. This law, if passed, will be one which places a person’s own identity at the centre of its assessments: not a third-party report on that identity, but the persons own determination to fulfil that identity.
PFC’s “Five Principles” set out six years ago our criteria for assessing legislation. Principle 4 says: “Does the legislation establish self-definition as the principal and overriding qualification for correcting a previously recorded sex/gender status?” The draft Gender Recognition Bill fits that principle: it builds checks and safeguards around self-identity, but it places self- identity as the starting point of its decision-making process, and at its core.
That decision-making can go one of two ways. The Gender Recognition Panel could say no — in which case the applicant is free to apply again in six months. The door is never closed: you can always come back again, and new evidence can always be considered.
The only other answer which a Gender Recognition Panel is allowed to give is a “yes” — and the great thing about that “yes” is that it is a final “yes”. No ifs, no buts, no maybes, no review in future, no strings attached: the Gender Recognition Certificate you receive is the last word on the matter. Section 5 of the draft bill says clearly:
(1) Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender.
That’s it — end of argument. Finito.
No court in the land can undo that certificate, unless it was obtained fraudulently. (The draft Bill rightly provides protection against fraud, but a certificate can only be revoked by the High Court, and only by application of the Secretary of State. The only grounds the court can consider are fraud — it cannot attempt to second-guess the panel’s conclusions).
Any trans person holding a gender recognition certificate will therefore know that it is a solid document. It doesn’t matter if an employer, a relative, a religious zealot, a neighbour, a jilted lover, or anyone else decides to disagree with the Gender Recognition Certificate: the only person who can challenge it is the Secretary of State. And he can only challenge it if we lied to get it.
Now, consider where we would be left if there was a legal test of sex. We don’t have to imagine what this would be like, because we already have two examples from the USA: “Littleton v Prang” (Texas Court of Appeals), and “Gardiner v Gardiner” (Kansas Supreme Court).
In each case, a transsexual woman found herself involved in a civil law case, in the courts arguing about money. In each case, she had an amended birth certificate — but in each case, the law allowed a test of sex.
That test of sex meant that those new birth certificates were, in the end, hardly worth the paper they were written on. The courts were quite entitled to sit down and try to work out what sex those women were. Starting from the beginning, the courts could consider anything they thought relevant, and reach whatever conclusion they liked.
In each of those two cases, the courts reached the conclusion that the women concerned were legally male, despite their new female birth certificates — with predictably devastating consequences. But, even if the court decisions had been favourable, the situation would still have been horrific: both women went into court knowing that part of the battle they faced was to prove that they were women. That basic point was up for grabs even before the court could consider the merits of their substantive case.
If we had a legal test of sex, that is the nightmare we would all face if we ever appeared in court, for any reason. We would always know that the other side could decide to challenge our sex: and if they had deep enough pockets, they could tie up a court for days or weeks with expert evidence. Even if the test of sex was one which we could expect to win, we could not be sure — we would have to pay up to hire enough lawyers and expert witnesses of our own to defend our right to exist.
So, a test of sex would mean that our legal uncertainty would continue. PFC has campaigned for an end to that uncertainty — trans people in the UK have all had more than enough insecurity. It’s time to get us out of the courts, and to give us and everyone around us a bit of long-overdue certainty. Whatever reservations anyone may have about the procedures set out in the draft bill, such as its use of medical evidence and its exclusion of married trans people, those magic words “for all purposes” mean that for those who do get through the process, it will all have been worthwhile.
However, some trans people are now arguing that a test of sex would give them a better deal, because IF such a test could be applied retrospectively, then it could be used to validate marriages which took place before the bill came into effect. That’s a big IF: Acts of Parliament try to avoid working retrospectively (i.e. they don’t apply to events before they were passed). Retrospective laws can create huge tangles, because decisions taken in the past get undone: money may have to be repaid, contracts may be invalidated. It’s one thing for the courts to decide that the law was applied wrongly in the past: it’s a wholly different matter for Parliament to decide to deliberately create that chaos by making a new law which sets out to rewrite the past.
Anyway, let’s play just suppose. Just suppose that Parliament did decide to pass a law which provides a new test of sex, AND agreed that the test should be retrospective, AND that it could be applied as far in the past as we might like.
We would then have a situation which appeared very helpful to those few trans people who married when the law did not recognise us. This law MIGHT be capable of being used to validate their marriages. It would mean that they would not have to marry again, and that they could enjoy the certainty of knowing that all those years of marriage were real and valid in the eyes of the state. For those in that situation, such as Liz and Mike Bellinger, this would be a real joy. It is something which we would all wish for them.
However, the sad but horrible legal truth is that those trans people who married an opposite-sex partner after 1971 (when the “Corbett test” was devised), do NOT have a legal marriage at the moment. Liz and Mike Bellinger tenaciously and bravely argued that case all the way to the House of Lords — and lost.
But, in hard practical terms, their defeat now makes little difference. If the draft Bill is passed in its present form, couples such as Liz and Mike will have to wait until the bill becomes an Act, and then enters into force. Then they can apply under the fast-track procedure, and be among the first trans people to get legal recognition (the draft bill rightly allows those who’ve been waiting for longest to go first).
As soon as they have the Gender Recognition Certificate, they can marry — making a legally secure marriage (which they have never had), a marriage which is not open to challenge. Their futures together will then be secure (which is something they many trans couples hardly dared to hope).
From that point on, the only thing they have lost is recognition of their past: their futures together are secure. All the rights and recognition they seek for the future will be in place, just as solidly as if their marriage certificate had been issued a decade or two earlier, rather than the previous day.
However, if we seek retrospective legislation, we put many things at risk: a test of sex is not the only thing to fear. Many other cans of worms would be opened.
A Gender Recognition Bill which offered retrospective recognition could not just offer it as a favour to a few named individuals. It would have to define categories of people whose change of gender would be backdated.
Those trans people who conducted a marriage ceremony before the law changed would obviously want to be included. It would be very unfair to exclude couples who wanted to marry, but waited until the law changed. They could argue that the government was rewarding law- breakers, and that they were being penalised for obeying the law.
But if those trans people in couples were given retrospective recognition, isn’t that unfair to single people? Why should they be excluded?
So maybe then, the only fair way of offering retrospective recognition would be to make ALL Gender Recognition Certificates apply from the point where someone transitioned? It’s tempting, isn’t it?
Tempting — until we consider the downsides. Trans people who married a same-sex partner would find that their marriages were “void ab initio” (legalspeak for invalid from the start), because they were not a man and a woman at the time they married. Other couples, who entered a heterosexual marriage before one of the spouses transitioned, would risk having their marriages annulled.
If there was a legal test of sex, which applied retrospectively, they would not even have the choice of not applying for recognition: they would have a new legal gender whether they liked it or not. They could find that their marriages had been void for years.
One of the downsides is financial: anyone who had received state benefits could find themselves being asked to repay any money which they would not have been entitled to receive if their change of gender had been recognised. I know several trans people and their partners who could then expect to face bills for thousands of pounds if their legal change of gender was backdated.
I have heard an argument that the draft bill already offers one piece of retrospective recognition: section 8(2) allows a trans man to be recognised as the father of a child conceived by his partner through AID, even if the child was born before his change of gender is recognised. Not so: rightly or wrongly, that clause is not retrospective. Section 5(2) offers no exception to its provision that acts and events in the past are not covered, so a trans man in that situation will become the legal father of his son only from the point at which he receives legal recognition.
Philosophically, we all now have to face some painful realities about the past.
The draft Gender Recognition Bill will, when passed, put an end to our legal nightmare — but it cannot ever undo the years when we were non-people. No law could ever change the shameful truth that for years the government of the United Kingdom left us out in the cold as non-people. No compensation is on offer, and none will be available: but even if there was money on the table, it could not give us back those blighted years.
Instead, the draft Bill offers us a way to secure our futures. It is not perfect, but it is much better than the legislation in most other countries: it includes more people, and it offers greater security.
If we asked for retrospectivity, we would not just be starting an unwinnable argument with government; we would also be asking for a series of changes which could undermine the future rights of all of us. Some trans people would find their futures very badly damaged.
It’s time to leave the past behind.