Recognising the Identity and Rights of Trans People

A report for the Interdepartmental Working Group On Transsexual Issues by Press For Change

June 1999

About the authors of this document

This document has been produced specifically to assist the Departments of State of Her Majesty’s Government to understand and fully appraise the issues that face “transsexual” and “transgender” people in the United Kingdom at the current time (June 1999).

The document has been jointly authored by (in alphabetical order) :-

Christine Burns M.Sc., C.Eng., M.B.C.S.	Vice President, Press for Change Editor of the PFC Website and actively involved in assessing, writing about and dealing with the problems faced by trans people for almost a decade. Christine is a Senior Consultant for Europe’s largest computer services company, where she also advises Human Resources Management on equality issues. She was also, until quite recently, Secretary and Vice Chair of her local Conservative Party branch.
Susan Marshall M.A., F.R.S.A. : Barrister and Fellow of Exeter College, Oxford	Vice President, Press for Change As a qualified Barrister, Susan Marshall is one of two legal specialists heading Press for Change. Susan has first hand knowledge of the issues confronting trans people, having reached an out-of-court settlement with the Crown Prosecution Service in 1998 following the withdrawal of a job offer when she announced her impending change of role. Susan is the Home Bursar of Exeter College Oxford, and has been closely involved with the problems which people bring to PFC for the last three years.
Claire McNab	Vice President, Press for Change Writer and IT Consultant, who maintains the PFC Website. Formally a political researcher, Claire has extensive experience of investigating and writing about the problems faced by trans people.
Alexander Whinnom M.A., PGDip Youth and Community Work, PGDip Consultancy in the Voluntary Sector	Vice President, Press for Change Alex Whinnom is responsible for PFC’s campaigner co-ordination, in which role he has come across every imaginable form of problem faced by trans people. He is also closely involved with the organisation of the “FTM Network”, which supports trans men, and at work he is Policy Officer for Manchester Methodist Housing Association.
Dr Stephen Whittle B.A., LLB, M.A., Ph.D.	Vice President, Press for Change Stephen Whittle is a Senior Lecturer in Law at the Manchester Metropolitan University and an internationally recognised authority on the legal and social issues affecting trans people around the world. He is one of very few people to have undertaken comparative study of different approaches to national legislation concerning trans people. Stephen has been involved closely with the trans community for over 25 years, and was one of the original founders of PFC. He has been in a loving relationship with his partner, Sarah, for over twenty years and together they are bringing up four children which Sarah conceived by donor insemination. In 1997 the family narrowly failed in a European Court of Human Rights case aimed at allowing Stephen to be recognised as the legal father of his children on the children’s birth certificates, although significantly the court ruled unanimously that theirs was a family.

Further Copies

Printed copies of this document are being made available to the chair of the Interdepartmental Working Group for distribution to the representatives of each of the twelve Government Departments which are involved in the review. Further copies may be made by recipients if desired. The full text is also being made available at the same time on the Internet at : http://www.pfc.org.uk//node/450

Published		30th June, 1999
Copyright		© Press for Change, 1999
Edition		FINAL

A note concerning terminology

Over the last three decades it has thankfully become unacceptable to refer to a group of British Citizens as “Blacks” any more, although the use of an adjective as a noun in this way once permeated the whole of society.

Similarly, over time, we have recognised that it is inappropriate to refer to other groups of people in the same way.
“Blacks” are “Black” or “Coloured” PEOPLE, if the colour of their skin is referred to at all.
“Jews” are Jewish PEOPLE
“The disabled” have become PEOPLE with disabilities

This is not, of course, mere hair splitting. The words we use to describe a group in society tell us, the listener and the person being described a great deal about our view of them. Terms that identify a group of people only by a characteristic which they are perceived to have in common, convey the strong message that the characteristic itself is the only way in which the person doing the describing can relate to them.

The restoration of the role of adjectives is therefore very important. When skin colour is turned back into just a qualifying term, the speaker is obliged to find a noun to accompany it as well, and the use of the word PEOPLE forces an acknowledgement of that essential thing which the subject has in common with the speaker and with everyone else.

Like all other people, transsexual and transgender people, trans people, are at once quite remarkable and quite unremarkable in their diversity.

There are trans lawyers, trans doctors, trans surgeons, trans journalists, trans politicians, and more than a fair share of trans civil servants too. There are trans fathers and mothers, trans sisters and brothers, trans husbands and wives, legally or otherwise. There are trans people who are gay or lesbian people too, trans people who have disabilities, trans people whose skin colour isn’t white.

To refer to such a diverse group of people as “transsexuals” and to use the term as a noun requiring no further qualification, is therefore as inexcusably rude and offensive as it is to use any other term in this way, especially once the people concerned have requested otherwise. Surprisingly, many people appear to be surprised that trans people should have a view on what they should be called, but like all those other groups before us, if there has to be a label, then it is the first step towards recognising a group of people as equal members of society to accord the choice of that label to the people who are going to wear it.

Throughout this document we refer to trans people in preference to any other term, since it avoids any mistaken association between gender identity and sex or sexuality. Where necessary we use the medical adjective transsexual to distinguish trans people whose quest for physical and intellectual integrity requires the assistance of medicine (and therefore a submission to medical categorisation). Similarly we also use the adjective transgender to denote people who do not wish to undergo or cannot undergo surgery but who, nevertheless, possess a gender identity which is different to what would be assumed on the basis of their genetic kerotype or morphology at birth. On occasion we also use the adjective “Intersex” to describe people whose chromosomal or external genital configurations do not neatly fit into either of the two sexual classifications which society expects.

At all times we use these terms as adjectives, however, and we respectfully ask that readers of this document make a point of adopting the same discipline and encourage others to follow suit.

Recognising the Identity and Rights of Transsexual and Transgender People in the United Kingdom

Press For Change, June 1999

	About the authors of this document
	A note concerning terminology
1.	Introduction
	1.1	About PFC
	1.2	Bridging a gulf of understanding
2.	Summary of Recommendations for the Working Group
	2.1	Introduction
	2.2	Generalised Objectives
3.	Family Law and the Transsexual Person
	3.1	Introduction
	3.2	Transsexual People and Marriage
	3.3	An Outline of Corbett v Corbett
	3.4	Transsexual People’s Marriages Following Corbett
	3.5	Transsexual People and Divorce
	3.6	Transsexual People, Children: Access and Custody
	3.7	The Transsexual Man as a Father
	3.8	Transsexual People and the Adoption of Children
	3.9	Transsexual People and Family Law: Conclusion
4.	Criminal Law and the Transsexual Person
	4.1	Introduction
	4.2	Sexual Offences and the Transsexual Person
5.	Solutions adopted by other countries
6.	Some Common Concerns Regarding a Solution
	6.1	The Marriage of Trans People
	6.2	Inheritance
	6.3	Social Security, Pensions and Taxation
	6.4	The Ping Pong Argument
7.	Detailed Recommendations for Addressing the Issues
	7.1	Introduction
	7.2	The PFC Agenda - Seven Wishes
	7.3	Achieving some of those Goals without legislation
	7.4	Achieving the rest by legislation
	7.5	Recommended procedure and qualification criteria
	7.6	Method of application and qualification
	7.7	Effect of application
	7.8	Issue of New Birth Certificate
	7.9	Effect of Amendment
	7.10	Searches and document copies
Appendices
	Appendix 1 - Usage of Birth Certificates in Government
	Appendix 2 - Why Birth Certificates do matter
	Appendix 3 - Lynsay Watson : A study in abuse of privacy
	Appendix 4 - Liz Bellinger - Is she married or isn’t she?
	Appendix 5 - Dale Altrows : Legislating for Transsexual Men
	Appendix 6 - Further reading (Internet based)
	Appendix 7 - Bibliography and Other References
Footnotes

1. Introduction

On 14th April 1999 the Home Secretary announced the establishment of an Interdepartmental Working Group with the following terms of reference:

“To consider, with particular reference to birth certificates, the need for appropriate legal measures to address the problems experienced by transsexuals, having due regard to scientific and societal developments, and measures undertaken in other countries to deal with this issue”

Press for Change (PFC) has been invited to contribute to the work of the group, and is submitting this document to assist committee members to reach a full understanding of the wide variety of issues which confront trans people in society, and to offer proposals for addressing those problems in a lasting, effective and fair manner.

In this section we provide background information on PFC and an explanation of the structure and aims of this document.

A summary of our recommendations is contained in section 2, and the document is supported by appendices on several key topics.

1.1 About PFC

Whilst there are now several well-organised “self help” and care organisations concerned with the issues faced by trans people in the UK, PFC is the only organisation which deals specifically in the analysis and handling of the legal and socio-political issues which are raised.

The organisation was founded in 1992, shortly following the Cossey v. UK case in the European Court of Human Rights, and at a time when trans people were arguably the most victimised and least visible group of citizens in the country. At that time the mere fact of being transsexual was sufficient to guarantee lurid newspaper coverage and (often) an automatic dismissal from employment should a trans person’s status become public knowledge. The majority of trans people, those who ironically conformed least to the popular conception and stereotype, tended to keep their heads down.

Over the course of seven years of campaigning, PFC has led the way in bringing about a major change in society’s attitudes, culminating, of course, in the formation of this working party.

A major factor in achieving this change has been the progressive removal of the fear and consequences of discovery. All of PFC’s leaders are, for instance, “out” as trans people and have, over the years, set an example for others to follow through their media appearances, lobbying and writing. It is a common misconception that the purpose of this campaign is to enable trans people to “disappear”. This is not so. What PFC seek on behalf of all trans people, however, is the right (like anyone else) to choose whether, when and in what way to disclose our very special and precious personal experience of life with others.

Unlike many other campaign organisations, PFC is not a confrontational lobby, and we attribute much of our success to a firm adherence to our published agenda and principles. We aim to be absolutely professional, accurate and fair, and demand no more than the same in return from those whom we deal with, whether lawyers, journalists, medical specialists or politicians. We believe the merits of our arguments speak for themselves and, having now secured the means by which economically disadvantaged or socially vulnerable trans people can take their grievances to court, we are finding that judges at all levels are increasingly in agreement.

Key points about PFC

PFC was formed in 1992 with just six members. Today, in 1999 the organisation has a postal membership list of almost 2,000 and, through reciprocal arrangements with other bodies such as the “Gender Trust” and the “FTM Network” is able to communicate policy and requests for action to over half of the transsexual population in the UK. The organisation’s web site is internationally regarded as the world’s most authoritative one-stop source of information concerning the lives and treatment of trans people, with a particularly thorough library of legal cases and over 550 documents in all. The site regularly dispenses over 1,300 documents every day, to an average of 3,500 visitors each month.
Since 1995, PFC has been closely involved with the Parliamentary Forum on Transsexualism, chaired by Dr Lynne Jones, MP. Under the auspices of this body PFC facilitated and published the report, “Transsexualism : The Medical Viewpoint”[1], which is now a standard reference upon the subject.
In early 1996, PFC was closely associated with the tabling of a Private Members Bill by The Rt. Hon. Alex Carlile, QC, MP who, after standing down as an MP, remains one of the organisation’s many distinguished patrons.
In 1998, PFC assisted the DfEE’s consultation process on planned amendments to the Sex Discrimination Act, by ensuring the response of over 300 trans people to the draft proposals. The response of those individuals, each relating their own personal reactions to the proposals, led to much closer involvement by PFC, including confidential advice on the Minister’s intended Statutory Instrument, and a very substantial contribution to the guidelines which accompanied the legislation. PFC in fact opposes the Regulations enacted, on the ground that their effect is substantially to diminish the rights actually conferred by the judgement of the European Court of Justice in the case of P v S and Cornwall County Council. This opposition has not prevented PFC from continuing an active and constructive dialogue with the Minister and officials concerned. A further product of this work was the publication of another recent PFC booklet, “Transsexual People in the Workplace : A Code of Practice”.[2]
PFC works closely with the Equal Opportunities Commission, which has placed the largest single order to date for the above Code of Practice.
In 1998, PFC organised a three-day conference at Exeter College Oxford, bringing together over 160 academics in gender theory and sociology, lawyers and medical specialists from around the world to share ideas and knowledge about a group of people who are found in all societies and who have existed throughout history.
Over the last two years PFC has worked closely with Granada Television to ensure that the portrayal of the transsexual character Hayley Patterson, and the events affecting her accurately reflect life. This relationship continues and PFC was delighted to add the actress Julie Hesmondhalgh to its list of Patrons earlier this year. Further stories are planned which will continue to raise public awareness, and PFC’s advisor is now a well-established member of the research team working on these.

1.2 Bridging a gulf of understanding

In our dealings to date with Government Departments and Officials one common theme emerges. Regrettably (and through no fault of their own) many educated and intelligent people come to this subject with a very limited (and generally erroneous) set of ideas and preconceptions about :

What sort of people we are. Commonly, for instance, it is forgotten that there are trans men as well as trans women and that a solution for one may not work for the other.
The nature and origins of gender role “issues” - indeed the basic differences between such important terms as “sex”, “gender” and “sexuality”
The nature of the practical problems which can arise when a person “transitions” from one gender role to the other (and also the extent to which many commonly assumed problems are really just myths), and the ways in which they are easily solved through common sense
The nature of the problems created for trans people by their legal status and by the secondary effects which that status produces (in such areas as insurance, for instance)
The preparedness of ordinary people to accept and embrace trans people as colleagues, friends and partners when their “fear of the unknown” and the trans person’s “fear of rejection” are removed
The extent to which, when considered rationally, the fundamental concepts of equality, freedom of expression and self-determination which are considered axiomatic nowadays for other groups can be readily applied to the problems which confront trans people in society

Almost invariably these are all matters which officials wish, in hindsight, that they had known from the outset.

It is easy to come to this subject and assume that it goes no deeper than the superficiality portrayed by a media still obsessed with “before and after” pictures and with a strictly limited conception of the diversity of human embryological development. That physical sex characteristics, chromosomal kerotypes and gender identity are all far from “simple and binary” takes time to digest. Yet it is only then that it is then possible to appreciate the full range of uncertainties that can apply not only at the time a birth is registered but also subsequently.

A problem apparently “solved” on the basis of an inadequate or incorrect understanding of the facts will not remain solved, and it is for this reason that “Education” is at the centre of PFC’s Mission Statement :

PFC is a political lobbying and educational organisation, which campaigns to achieve equal civil rights and liberties for all transsexual and transgender people in the United Kingdom, through legislation and social change.

Comprehensive as we would wish this submission to be, it cannot possibly cover all aspects of the history, aetiology, endocrinology, psychology and sociology of trans people. We therefore hope that it will form the basis for a continuing dialogue, and hence for a much more active and constructive role for PFC in the further deliberations of the Working Group

2. Summary of Recommendations for the Working Group

2.1 Introduction

PFC would like to suggest the Working Party should apply itself first to a compilation of the following :

A catalogue of problems known to have been experienced by trans people drawn from this document, from the submissions of other trans support organisations, and from all the cases on file arising from letters on behalf of trans people to ministers over the years
A corresponding catalogue of the issues considered relevant by Departments and represented by the public and, in the case of concerns, the formulation of effective answers to these

Having done this the Working Party should address itself to

Changes that could be made without legislation
Changes that would require legislation
Consideration of the procedure that would need to be established to enable an official correction of documentation to take place, and the qualifying criteria for it.

Suggestions for all of these things are contained within this document.

Sections 3 and 4 explain the current state of the law and its effect on trans people. Section 5 provides outline information concerning the solutions adopted by other countries and indicates the source of detailed information. Section 6 is intended as an introduction ordinary people’s ill-founded fears and ways in which they might be addressed. Finally, section 7 summarises what PFC seeks to achieve in accordance with its published mission statement, and provides a comprehensive approach to both legislative and non-legislative changes.

2.2 Generalised Objectives

Whilst section 7 of this document is concerned with specific actions which it is hoped the Working Party will recommend, the following list suggests other more general measures:

That government step up the pace of work, begun by the last administration in the areas of taxation and pensions, to eliminate gender-based distinctions from legislation. This might be approached by examining why gender indicators need to exist in official records, including Birth certificates, should approach this. Where the reason is to perpetuate difference in treatment an early opportunity should be sought to eliminate this difference for ALL citizens.
That government maintain a task force (perhaps simply by extending the life and remit of the Inter-Departmental Working Group on Trans People’s Issues and including representatives of the trans community) to examine any complaint of difficulties experienced by trans people in the maintenance of their privacy and either :
1. encourage the relevant departments to work together to find a solution respectful of the complainant’s identity and rights if the problem lies in the operation of government, or
2. by proposing legislative changes, using subordinate legislation wherever possible
That all Government Departments should cease to rely on birth certificates as a means of identification, in keeping with the clear statement on such certificates stating that they are not suitable for such a purpose. Industry Regulatory Agencies coming under the control of those Departments should be encouraged to follow suit. PFC believes that the problems experienced by trans people with insurance companies and pension providers could be addressed in this way.
That government should acknowledge that transsexualism falls within the normal scope of intersex conditions and hence that it should be necessary neither to establish a definite biological reason for its existence, nor a “test” for it, before recognising the right of any citizen to assert for themselves which gender they are.
That there should be one single and consistent point of recognition for the official change of an individual’s gender for all purposes. PFC recommends that this should be the point at which an individual legally changes their name and style of address. (For a more detailed articulation of the process see section 7 below).
That a short Act be drafted to give effect to paragraph 5 above and to provide for :
1. Issue of a short form birth certificate, on a similar basis to that provided for adoptees, showing appropriate forenames and sex to match the evidence provided under paragraph 5 above.
2. Such other changes as are necessary to the Births, Deaths and Marriages Act (1953), to enable trans persons to marry an individual of the opposite gender

It is important that whatever mechanism is adopted it should operate realistically for those who have already long since completed reassignment, as well as those transitioning now and in the future

That in recommending (6), the Working party should take care not to disadvantage those (few) whose marriages, conducted in their former gender role, have survived. For the purposes of this review PFC concedes, however, that marriages contemplated post-legislation should be subject to the same the requirements facing all other citizens at the time though. In summary :
1. It should not be a requirement for trans people and their partners, who married prior to this proposed legislation, to divorce in order for their post-transition gender to be recognised and for the trans partner to be accorded the privacy and respect which that recognition provides.
2. Just so long as single sex marriages remain illegal, we concede that it may no longer be possible for marriages between person of the opposite natal sex to proceed when one partner has had their new gender role officially recognised.
3. The rights and interests of children with a trans parent, and of the trans parents themselves, must be recognised particularly with regard to equality of access.
4. Trans men should have the same right as any other man to be recorded as father on a child’s birth certificate.
Without prejudice to paragraph 1 above, in the rare cases of dispute over questions of inheritance arising from gender reassignment, the courts should be allowed to follow the precedent already established in the case of Ewan Forbes.[3] PFC takes the view that any attempt to provide legislative rules in this area will create more problems than it will solve. The fact that there has been only one court case of this type in the last 32 years (during which time the parents of thousands of trans people have died) underlines the point that families are seemingly able to resolve questions for themselves.

3. Family Law and the Transsexual Person

3.1 Introduction

In this section and the one that follows it we present a review of the Law as it currently relates to Transsexual people in the United Kingdom.

This section of the review concerns family law. In section 4 we consider criminal law.

3.2 Transsexual People and Marriage

The situation as it currently exists is that a transsexual woman may marry a member of the opposite natal sex, which means therefore a person of the same gender. The same applies mutatis mutandis to a transsexual man.

If the transsexual woman or transsexual man marries a member of their same natal sex, the law treats that marriage as void ab initio. Thye may also be regarded as having committed perjury under the the 1911 Perjury Act.

If the transsexual woman has undergone genital surgery to create a vagina, then any marriage they undergo to a woman could be voidable because of lack of consummation. And though most transsexual men do not undergo phalloplasty, and therefore could successfully consummate a valid marriage, to a man most would not wish to enter such a relationship; even if they did, many would be unlikely to consider conventional sexual intercourse.[4]

There is nothing to prevent a transsexual woman marrying a transsexual man; though the Registrar General’s office have held that the marriage ceremony would require the woman (the transsexual woman) to become a lawful wedded husband, and the man (the transsexual man) to become a lawful wedded wife.[5]

This series of anomalies means that transsexual people effectively find themselves unable to marry anyone, which has led to the claim of a violation of Article 12 of the European Convention of Human Rights (the right to marry and to found a family) in applications to the European Commission and Court.

Prior to the decision in Corbett v Corbett (1970)[6], many transsexual people in the UK went through marriage ceremonies with their partners. For example, a transsexual man Robert Allen married a woman in 1944, three months after he had had his birth certificate amended (Allen, 1954), and Georgina Tuttle married her husband in the late 1960s.

Even after 1970 many transsexual people have continued to marry their partners of the opposite gender[7], including Caroline Cossey whose marriage was later declared void by the High Court[8]. All that is required is that the people involved swear to the matters detailed in the Marriage Act 1949. Registrars and others authorised to perform a marriage ceremony do not require a person to prove their identity or their biological sex by showing their birth certificate once the person is over twenty-five years old, but rather are obliged to accept evidence such as a passport.

However the party who applies for a licence to marry is required to swear that they know of no lawful impediment to the marriage taking place. Presumably if a transsexual person (or their partner and witnesses) can state categorically that they do not know of any lawful impediment they would not be committing an offence. If they know otherwise they can be charged with the offence of misleading a Public Registrar under the Perjury Act 1911, s.2.

The Marriage Act 1949 does not require that the parties to a marriage should be respectively male and female. It was only after the decision in Corbett v Corbett that the ruling in Hyde v Hyde (1866)[9] was embodied in Statutory law, with the divorce provisions of the Matrimonial Causes Act (1973).

The classical definition of marriage in English law stems from Lord Penzance’s judgement in 1866, which held:

marriage … may … be defined as the voluntary union for life of one man and one woman to the exclusion of all others.

This created four conditions for a marriage to be legal:

the union is voluntary
to the exclusion of all others
for life and
the marriage must be between a man and a woman.

The judgement in Hyde v Hyde did not at that time go on to try and define what was meant by the words “man” and “woman.” That was to be decided by Ormrod J. in Corbett v Corbett.

3.3 An Outline of Corbett v Corbett[10]

The first case in England to address the validity of the transsexual person’s marriage was the case of Corbett v Corbett. April Ashley, model and dancer, was a biological male who had undergone gender reassignment surgery to become a woman. She went through a marriage ceremony in Gibraltar with a man, who at that time knew of her “sex change”. On the breakdown of the marriage he subsequently petitioned in England for nullity on the grounds that

the respondent remained a male and hence the marriage was void and
the marriage was never consummated due to the incapacity of the respondent.

Ormrod J. decided the case on these two issues. As for the sexual identity of April Ashley, Ormrod J. (who was also a medical practitioner) devised a test based upon three factors. Sex was to be considered by the chromosomal, the gonadal and the genital characteristics of the individual concerned at the time of birth. These were established as being “male” at the time of Miss Ashley’s birth. However, rather than merely deciding whether she was male, Ormrod J. referred back to the decision in Hyde v Hyde and decided whether Miss Ashley was a woman for the purposes of marriage; he held:

Since marriage is essentially a relationship between man and woman, the validity of the marriage in this case depends, in my judgement, on whether the respondent is or is not a woman. I think with respect this is a more precise way of formulating the question than that adopted in para.2 of the petition, in which it is alleged that the respondent is male.[11]

He answered the question in this way:

The criteria must, be biological, for even the most extreme degree of transsexualism in a male, cannot reproduce a person who is naturally capable of performing the essential role of a woman in marriage.[12]

One of the problems with any analysis of Ormrod J.’s judgement is that he constantly mixes notions of “male and female” with those of “man and woman” e.g.

The respondent is not a woman for the purposes of marriage but is a biological male and has been so since birth[13]

Once he had established the marriage was void, there was no reason for Ormrod J. to go on and consider the second ground: whether the marriage could have been consummated. However he did so, and was of the opinion that sexual intercourse was not possible between a post-operative transsexual woman and a man.

The case established that a combination of hormone treatment and surgery could not, for the purposes of matrimonial law, produce a change in the sex assigned to a person at birth. Even more controversially, it was held that, notwithstanding the validity of the marriage in other respects, it was not possible to consummate a marriage by the use of a surgicallyconstructed vagina in these circumstances.

There have been many criticisms of Ormrod J.’s decision, not least by C.N. Armstrong who provided the medical reports concerning April Ashley’s status at the original hearings[14]. Armstrong, along with many others, has argued that to take just three physiological factors into account in determining a person’s sexual identity fails to address that which is perhaps most important, the psychological sex of a person. As Professor Dewhurst, in Corbett, stated at the time:

We doctors do not determine sex - in medicine we determine the sex in which it is best for the individual to live.[15]

3.4 Transsexual People’s Marriages Following Corbett

The decision in Corbett has been incredibly influential, despite only being at the first instance. It has been followed as precedent in other matrimonial cases such as Peterson V Peterson (1985)[16], Franklin v Franklin (1990)[17] and in the criminal law in R v Tan (1983)[18], and the UK Government has supported Ormord J.’s definition of sex in all of the cases which have gone to the European Courts.

The law as to nullity of marriages is now laid down in Section 11 of the Matrimonial Causes Act 1973, which provides that a marriage is void, as opposed to merely being of no consequence in law, if the parties are not respectively male and female.

Within Section 1 of the Legitimacy Act 1976, any child born within such a marriage would be treated as legitimate. Illegitimate as well as legitimate children can succeed to a parent’s estate should they die intestate. According to Bradney:

The result of this is that which is said to be a ground for preventing a couple marrying (a void marriage is no marriage at all; it is merely a void marriage ceremony) becomes the basis for the court exercising the same ancillary jurisdiction over the dissolution of their relationship that it would have done if they had been divorced. The fact that a marriage between a transsexual and a person of the same legal sex is void rather than valid may, on occasion, be of advantage to the couple.[19]

Although it is not necessary to do so, either party to a void marriage may seek a decree of nullity from the courts. This is important because the courts have the same powers to make financial adjustments when a decree of nullity is granted as they have when a decree of divorce is granted. Thus, although the “marriage” of an transsexual woman and a man would be void, if a decree of nullity was granted the court would have the same powers to settle any property or maintenance issues between the couple as if they had been validly married and sought a divorce[20].

In Peterson v Peterson (1985) a couple were granted a decree of nullity, because the husband “was in fact a woman” and Judge Clarke said :

It was an unusual case. The law as I see it is clear, that a person’s sex is determined effectively and for all time at birth.[21]

Even though the breakdown of the marriage owed nothing to the transsexualism of the husband, the couple were able to end their relationship, and potentially invoke the court’s ancillary jurisdiction, without the necessity of establishing that the breakdown fell within the terms of the Matrimonial Causes Act 1973.

In the case of Franklin V Franklin (1990) the court held that “male” and “female”, unlike “man” and “woman”, did not refer to gender. The court reaffirmed the Corbett doctrine that gender reassignment will not enable a transsexual woman who was registered at birth as male to contract a valid marriage with a member of the same natal sex. However the court did not address the contradictory aspects that come from comparing “male and female” with “man and woman”[22].

Very recently in New Zealand, in November 1994, the Registrar of Marriages requested a declaration from the High Court as to whether two people of the same sex may be validly married if one of them has undergone gender reassignment. Although transsexual people in New Zealand at that time could not have their birth certificates altered, or their passports amended to show their new gender status, it was held that:

If society allows such persons to undergo therapy and surgery in order to fulfil that desire then it ought also to allow such persons to function as fully as possible in their reassigned sex and this must include the capacity to marry, I cannot see any harm to others, children in particular, that is not properly proscribed and manageable in accordance with the existing framework of the law.[23]

Judge Ellis directly challenged the view put forward by Ormrod J. in Corbett v Corbett, by stating that:

In my view the law of New Zealand has changed to recognise a shift from sexual activity and more emphasis being placed on psychological and social aspects of sex, sometimes referred to as gender issues.[24]

It should also be noted that at present because of the Corbett doctrine, a transsexual and a person of the same legal sex would not be treated as “a man and woman living with each other in the same household as husband and wife” for the purposes of the Domestic Violence and Matrimonial Proceedings Act 1976. This Act provides that: a partner to a de facto heterosexual relationship may seek an injunction in the County Court against the other cohabitee if he or she is violent and, if necessary, the violent cohabitee can be expelled from the home [25].

Finally because of the legal inability of many transsexual people to marry their partners, both they and their partners are greatly disadvantaged in the area of pension provision. There are many areas of employment wherein there is a compulsory employer provided superannuation scheme. Many of these schemes[26] only allow spousal benefits on the early death of the employee. Thus transsexual people who wish to provide for their dependants find themselves obligated to take out supplementary private pensions, or life insurance. Only limited tax relief is allowed for supplementary pension schemes, and so the transsexual person or their partner will find that they are severely financially disadvantaged.

3.5 Transsexual People and Divorce

Transsexualism, along with transvestism, is regarded by the courts as unreasonable behaviour in an application for divorce. Since the case of Gollins v Gollins (1963)[27] it was decided that unreasonable behaviour is what a husband or wife cannot reasonably be expected tolerate, and it is not necessary to prove that there was a deliberate attempt to be unreasonable.

There have been cases in the past such as in Bohnel v Bohnel (1960)[28], where it was held that cross dressing by a transvestite husband was not unreasonable. This was due to the husband having attempted to keep it secret from his wife, not wishing to impose the issue on her. Referred to in this judgement was the case Williams v Williams (1958)[29] where it was similarly held that the fact that one partner was a transsexual woman who was under medical supervision awaiting gender reassignment did not amount to cruelty against the other partner, apparently because there was no intention to be cruel.

However the law changed in Gollins v Gollins (1963)[30] in that, in divorce cases, there is no longer any need to prove an intention to be cruel or to behave unreasonably, as long as the behaviour can objectively be seen as being cruel or unreasonable.

3.6 Transsexual People, Children: Access and Custody

The break up of any relationship involving children is always difficult and the law is heavily weighted against the transsexual person in this area. Court disputes over children are costly, in terms of both finance and emotions, especially if a transsexual person, as is likely, feels that their lifestyle is on trial.

Despite all the problems, some transsexual people have obtained access to their children. In a few cases, a transsexual person has been given custody of the family children. The courts may however insist that they must dress according to their original gender in order to see their children, which clearly is a very high price to pay in the case of the post-operative transsexual person.

That transsexualism need not be a barrier to custody or access is shown by the recent case of Re H (Minors) (Public Interest: Protection of Identity)[31], which concerned a transsexual woman who had been divorced and eventually obtained custody of her children. The transsexual woman had, prior to reassignment treatment, crossdressed for many years. The couple had married in 1975 and divorced in 1983, after the wife had discovered the husband’s crossdressing which had resulted in many arguments. The wife was granted a divorce on the grounds of unreasonable behaviour and was granted custody of the three children. She suffered a nervous breakdown and by 1987 could no longer cope. The children were placed in care until the transsexual father applied for their return. Despite opposition from the ex-wife, a county court granted custody of the children to the transsexual father, subject to local authority supervision.

The Courts however, along with many partners of transsexual people, can fear that their children’s gender identity development may be adversely affected. There is some evidence from the USA that there have not been any significant or profound psychological effects on children whose parent has undergone gender re-assignment. The only published work in support of the transsexual parent is by Richard Green, who is a psychiatrist and lawyer now Head of Research at the Gender Identity Clinic at Charing Cross Hospital. His paper, “Sexual Identity of 37 children raised by 28 homosexual or transsexual parents” (1978) supports the view that the sexual orientation of children of gay or transsexual parents is unaffected by that of the parent.[32]

In G v G (1981)[33] the Cambridge county court made an order for access by the transsexual woman father, a Miss Lawson. It was held that the transsexual father could have access to her daughter once a month, provided that she wore male oriented attire without jewellery or cosmetics. A friend, described as a Mr. S., was not allowed to accompany her on such visits.

In Re. F (Minors) (Denial of Contact) (1993)[34] a transsexual father was refused contact with two sons, despite a court welfare officer’s report that access should be given. The trial judge saw the two boys in his rooms, and concluded that their wishes were the most consistent and compelling aspect of the case, and as they did not wish to see their father as a woman, access was denied. The transsexual woman appealed, which was dismissed on the grounds that the trial judge had been right to see the boys and to give weight to their views in this case.

This case clearly shows that, although the test under section 1 of the Children Act 1989 is the paramountcy of the child’s welfare, rather than its wishes or feelings, it may be appropriate to recognise the extra significance of the child’s own views where, as here, all the other factors are evenly balanced. If the children’s wishes had been different, then clearly the outcome of this case would also have been different.

Case law does show that there has been a change since the 1970s in the attitudes of the courts to parents with different sexualities[35]. On this basis it may be surmised that the attitudes of the courts towards transsexualism in a parent will be less hostile than it was a few years ago, and they may no longer automatically deny access to children by a transsexual parent.

3.7 The Transsexual Man as a Father

Transsexual men and their female partners often form families by bringing children into their domestic unit. Sometimes these are the biological children of the transsexual man, born prior to changeover, sometimes the children of the female partner from a previous relationship. On occasion, though, female partners have children within their relationship with the transsexual man. These children are conceived by the female partner either having intercourse with a biological male, or by artificial insemination using donor sperm.

Many partners of transsexual men now seek the help of donor insemination services provided through licensed Fertility Clinics. Clinics are bound to keep as their paramount concern the welfare of any child who is born by the treatment they provide.

The transsexual man cannot keep their status a secret in this process. Many clinics will not treat single women at all, because of the requirement in Section 13(5) of the 1990 Human Fertilisation and Embryology Act that:

a woman shall not be provided with treatment services unless account has been taken of the welfare of any child who may be born as a result of the treatment (including the need of that child for a father).

This is used by some clinics to avoid any obligation to treat single women[36]. Hence the transsexual man needs to be involved in the application for treatment in order for the first barriers to be crossed. Secondly, a male parent will be investigated as to whether they are the cause of infertility within the relationship. This requires the giving of sperm samples etc. it is far easier for the transsexual man to be open about the situation from the beginning.

The consultant, in these cases, often refers the matter of the treatment of the partner of a transsexual man to his Ethical Committee, which advises doctors on whether certain treatments or experimental work they may do are within ethical boundaries. The role of the Ethical Committee in fertility treatment cases is merely advisory; it is not a decision making body[37]. As such it is doubtful whether a committee could veto the decision of a doctor to provide fertility treatment. It was held that a decision by an Ethical Committee could be reviewed where, for example, there was a policy of refusing treatment to anyone who, for example, was Jewish or Black.

Once treatment is obtained and a child conceived and born, the transsexual man is not in a position to be registered as the child’s father[38]. The mother of the child can choose to give the child her partner’s surname and this will be entered upon the child’s birth certificate. However the full certificate has a space for the completion of the father’s details. (The shortened form of the child’s birth certificate has no space for details of the child’s parents, so may be preferred by the family as documentary evidence of the child’s birth.)

Undoubtedly many transsexual men ignore the law and, with their partner’s consent, register themselves as the father of the child, just as many other non-biological fathers do. However unlike other social fathers, the transsexual man is committing an offence under the 1953 Registration of Births and Deaths Act. This would be on the grounds that he is not entitled to be treated as the father of the child under Section 28 of the 1990 Human Fertilisation and Embryology Act, even though he is compelled to agree to be such a father in order that his partner may receive treatment.

Section 28 provides that, if treatment using donated sperm is provided for a woman living with a man, and the embryo was not created using the sperm of that man, that man will be treated as the father of the child for all purposes. As the transsexual man is not a “man” under English law, he cannot become the father of the child, though he will be allowed to share parenting under the provisions of the Children Act 1989.

In law the transsexual man and his partner are currently treated as if two cohabiting women, and as such the decision made in a Manchester High Court on the 24th June 1994 is relevant. In this case a lesbian couple obtained joint legal recognition as parents of a two year old baby. A joint residence order was made in respect of the two women, the judge holding that the child’s welfare was his first and paramount consideration and that the evidence in the case overwhelmingly pointed to the making of such an order[39]. Such an order would thus be available to a transsexual man and his partner, but there are limitations to the implications of this.

Various anomalies at law appear. The transsexual man may claim the additional tax allowance that is available to the parent of a child if he can show that he maintains the child. At the same time, for all welfare benefits purposes, the child’s mother will remain at law as a single parent. This means that she may claim the additional single parents allowance; if she is entitled (either by not working, or by working only part-time), she will qualify to claim income support for herself and the child, or family credit.[40]

Currently the Child Support Agency is obliged to ask mothers, who are claiming benefits, for details of the child’s father, in order that a claim for maintenance may be made to him. Children who are born using artificial insemination by donor provided by a licensed clinic to a transsexual man’s partner, currently have no father at law, so in practice the mother merely needs to inform the CSA of the nature of the child’s conception, and any further action is dropped.

Finally it is important that the transsexual man writes a will leaving their property, or any tenancies they may have, appropriately because their partner and children (if not their own biological children) are not covered by the intestacy rules that provide for family dependants.

3.8 Transsexual People and the Adoption of Children

Adoption Agencies and the courts might, using the exhaustive criteria laid down in the Adoption Agency Regulations, consider transsexualism as a ground for refusing to make an adoption order, on the basis that having a transsexual parent is not in the best interests of the child[41]. There is no case law on this area though there was an unreported case in 1991 in which a judge refused to allow a lesbian woman to adopt a two year old boy who had been placed with her by Newcastle Social Services.

As some local social services in London and elsewhere have recently changed their views, at least towards gay men and lesbian women adopting a child, there would seem to be no reason why a transsexual person should not do so too. Nevertheless, paragraph 16 to Statutory Guidance to the Children Act 1989 states that :

it would be wrong arbitrarily to exclude any particular groups for consideration. But the chosen way of life of some adults may mean that they would not be able to provide a suitable environment for the care and nurture of a child.

Even so, as the emphasis under the Children Act 1989 is now on what is in the best interests of the child, there is no reason why transsexualism should be a barrier to adoption of a child.

However if a transsexual person lives with someone of the same natal sex (i.e. a transsexual woman lives with a male, or a transsexual man lives with a female), and that partner is the parent of a child, the transsexual would not be able to adopt that child without the original parent losing their parental rights. The Adoption Act 1976 Section 14 states that an adoption order may be made on the application of a married couple, but an adoption order shall not otherwise be made on the application of more than one person. As the transsexual person and their partner cannot get married, it is not possible for them to be joint parents though it may be possible for them to share parental rights and duties under the Children Act.

3.9 Transsexual People and Family Law: Conclusion

Currently family law as regards transsexual people is in many areas unclear, and in those areas in which it is clear, it seems to penalise them for being transsexual. Transsexual people have little opportunity to cement in law the relationships in which they participate, and this penalises them, often unjustly. In practice, the courts provide little support when relationships break down, and the law will not allow them to affirm the relationships that work.

Children, in particular, can feel the repercussions of this inadequacy. They can lose parents, or they can face legal stigmatisation, by apparently not belonging to the family they live with.

Transsexual people, justifiably feel a level of financial and social insecurity that seems unnecessary. The moves taken with the Children Act are to be applauded, but it is yet to be seen whether in reality the courts will follow the spirit of the law in cases concerning transsexual people.

It is of particular concern that the Adoption Act 1976 is restricted to single people or married couples. Because of the restrictions on marriage that the transsexual faces, along with the infertility they gain as a result of reassignment treatment and the requirements of most clinics in the field that they are unmarried or divorced, it proves impossible for them to become parents.

The failure to afford the right to marry, is based upon the administrative issue of birth certificate registration and the judgement of an elderly judge, who because of his rather ancient medical training was unwilling to accept that there were new ideas in his field. This refusal is rooted in biological sex role theories that are long out of date, and which have little support from either the medical world and its current knowledge of sex differentiation, or from the current theoretical thought concerning gender, its meaning and the individual’s experience of it. The compassionate and tolerant attitude to human sexuality that appears to be being adopted throughout other institutions seems to be sadly lacking in the institution of the law. The legal discourses participated in by English judges uphold an ideology of sex role differentiation that, in practice, can afford little relief to the transsexual. Kennedy summed it up, 26 years ago, when he said:

The question which serves as a starting point is why there should be legal obstacles to the recognition of the transsexual’s change. What business is it of the state that someone now wishes to be known as a woman where previously she was considered a man? Obviously the state has an interest in regulating behaviour of its citizens. So, equally obviously, the question becomes what disruption to normal regulation would be caused by recognising the change, always bearing in mind the rarity of the situation, and if some disruption were shown, is it sufficiently serious to warrant withholding recognition?[42]

4. Criminal Law and the Transsexual Person

4.1 Introduction

It is not illegal in the UK to go out in public wearing clothes of the opposite sex (i.e. dressing in the appropriate role for a transsexual woman and vice versa). It is, however, an offence to behave in a manner likely to cause a breach of the peace, or in a manner which may be regarded as insulting. It must however be emphasised that it is exceptional that a transsexual person will ever fall foul of the criminal law, as most know full well the possible consequences and avoid them by the use of common sense.

The outcome of a criminal prosecution for offences relating to trans gendered behaviour is usually minimal so far as the conviction itself is concerned. But the consequences may still be devastating for individual transsexual people, since they may as a result lose their job, possibly lose their family, and become the butt of adverse newspaper publicity.

4.1.1 Insulting a Female

This common law offence may be invoked where a pre-operative transsexual woman has to use the toilet and enters the ladies toilet. This is a situation which is all to difficult to avoid. If the transsexual woman enters male toilets while wearing clothing appropriate to her gender, quite apart from the risk of being beaten up, she risks being prosecuted for the more serious offence of soliciting or importuning as outlined below.

In the case of any transsexual man who uses the male toilets, any man does have the right to complain, but the offence would most likely be a breach of the peace.

4.1.2 Breach of the Peace

This is a rather vague common law offence, and there is difficulty in defining what exactly is a breach of the Queen’s peace. The law does not insist that the offender is causing a breach of the peace, only that he or she is judged likely to do so. However the clear balance in case law is that a breach of the peace should consist of violence or the threat of violence. Should a complaint be made by a member of the public, it is likely that the prosecution would be successful, even if the witness was in no way upset or disturbed by their observation.

By way of illustration: in October 1989, a thirty-three year old ’gay man’, Joseph Stewart, was reported[43] to have been fined £50 by Aberdeen Crown Court on the grounds that his wearing of women’s clothing in a red light district constituted behaviour likely to cause a breach of the peace.

Ultimately, the fact that anyone can make a complaint places a large responsibility on the shoulders of the transsexual person whose need to “pass” in their new gender role becomes more than a social and emotional issue.

4.1.3 Insulting Behaviour

The common law also includes such offences as insulting behaviour or causing a disturbance, but the behaviour of a transsexual person would have to be outrageous to risk arrest or prosecution. Also Sections 5 & 7 of the Public Order Act 1936 read as follows:

It will be a summary offence for any person in a public place or any public meeting

(a) to use threatening, abusive or insulting words or behaviour, or

(b) to distribute or display any writing, sign or visible representation which is threatening abusive or insulting with intent to provide a breach of the peace or whereby a breach of the peace is likely to be occasioned.

The word “insulting” is to be given its ordinary meaning and it has been held that “gay” behaviour can be insulting.[44]

A complaint has to be made to a police officer. It is a summary offence so it will be dealt with by magistrates’ courts and is very unlikely to result in a prison sentence.

4.2 Sexual Offences and the Transsexual Person

4.2.1 Soliciting

This is governed by S.32 of the Sexual Offences Act 1956 where it is made illegal for a man to persistently solicit or importune in a public place for immoral purposes. Since the case of R v Tan (1983)[45] it was held that, notwithstanding gender reassignment surgery, a person born male remains a man for the purposes of the Sexual Offences Act (thus seemingly confirming a decision made in the civil case of Corbett v Corbett). In R v Tan a woman, Moira Tan, and a transsexual woman, Gloria Greaves, worked as prostitutes. Their earnings were divided with Gloria’s “husband”, a biological man, Brian Greaves. Gloria Greaves (being a man for the purposes of the law) was convicted of living on the earnings of Tan’s prostitution, contrary to Section 30 of the Sexual Offences Act 1956. At the same time, Brian Greaves was convicted of living on the earnings of a man’s (Gloria Greaves) prostitution, contrary to Section 5 of the Sexual Offences Act 1967. Thus a post-operative transsexual woman who works as a prostitute can be charged with soliciting as a man, even though she thought she was plying her trade as a woman, and her customers also thought so.

Also a transsexual woman can be charged with living off her own immoral earnings as was the case in R v Tan (1983). The Court of Appeal rejected the argument by Gloria Greaves that as she had undergone reassignment surgery she was now a woman, and failed to overturn the doctrine in Corbett v Corbett. It was argued, for the defence, that the Corbett doctrine of the use of purely biological criteria for assigning sex should be restricted to the law of marriage (as Ormrod J. had so directed himself in Corbett v Corbett), and Gloria should be regarded (as she regarded herself) as a woman, so that neither conviction could stand.

The defendants in R v Tan argued that, for the purposes of Section 30 of the 1956 Act and Section 5 of the 1967 Act, a person should be considered a woman if she had become, psychologically and socially, a female, but this was rejected by the Court, who thought that:

the desirability of certainty and consistency demanded that Corbett should apply[46]

and so it would be unacceptable to assign Gloria’s sex for the purpose of marriage as if she were a man, whilst considering her to be a woman for the purpose of Section 30 of the Sexual Offences Act 1956.

4.2.2 Gross Indecency

The laws about homosexuality do not as such apply to transsexual people, but the fact remains that the transsexual woman, since R v Tan (1983) is male for all purposes as far as the criminal law is concerned.

Gross indecency that is male homosexual sexual behaviour ceased to be illegal under the Sexual Offences Act 1967 (as amended in April 1994), provided that certain conditions are met. These are that the act is in private and is between consenting males over the age of eighteen. If these conditions are not met then Section 13 of the Sexual Offences Act 1956 applies with a penalty of up to five years imprisonment. If more than two people are present then it is also possible to commit the offence of attempting to procure the commission of an act of gross indecency.

The transsexual woman can inadvertently commit an offence under Section 13. What constitutes “in private” is open to interpretation. Most prosecutions for indecency relate to sexual behaviour in parks and toilets; however it can safely be said that the only truly private place is your own home, and even then it has been known for the police to raid a private birthday party and to arrest guests on the suspicion that sex between two men was taking place in a bedroom[47]. Thus the transsexual woman could face charges of Gross Indecency if she and a male partner have consensual sex, even if both are over the age of eighteen, if such sexual activity takes place in what could be constituted a non-private place e.g. a hotel bedroom.

Having said that, the transsexual man who identifies as a gay man will not find themselves falling foul of this particular area of law, as their sexual activities with men will be constructed as if they are a woman, and as such they cannot commit an offence under Section 13 of the Sexual Offences Act.

4.2.3 Sexual Offences and the Transsexual Man

Sex between women has never been an offence under British law. Sometimes, though, general laws are used to convict individuals. The most recent case in the UK was that of Jimmy (Jennifer) Saunders[48]. Saunders was charged with indecent assault under Section 14 of the Sexual Offences Act 1956, after having had affairs with two women. One of the affairs continued over six months, and Saunders used a strap-on penis to have sexual intercourse with the woman.

The sexual activities were entirely consensual. However the women claimed that they did not know that Saunders was in fact a woman and they claimed that they would not have consented to sex if they had had that knowledge. Saunders was convicted and sentenced to six years imprisonment, which on appeal was reduced to a nine month suspended sentence.

On the basis of this case the transsexual man, whether pre or post-operative, could face charges of indecent assault if they do not tell female partners of their transsexual status and of their natal biological sex.

5. Solutions adopted by other countries

The majority of countries now have legislative or judicial processes for acknowledging the gender role transition of a citizen by correction or amendment of official documents to thereafter recognise that individual according to the way they present themselves.[49] Some of the solutions contained in these processes are simple, some are unfortunately complex and, through lack of appreciation of the complexity of issues surrounding transsexuality create as many problems as they solve.

There is a trend, however, towards an approach that is more in keeping with a growing awareness of the imprecise nature of sex and gender differentiation and which questions rigid sex roles. The recent example, in New Zealand[50], underlines this point.

In 1997, PFC assisted researchers from Liberty to undertake a comprehensive survey of legislative and judicial provisions for transsexual and transgender people around the world. This survey was presented as an amicus brief to the European Court of Human Rights in the cases of Kristina Sheffield and Rachel Horsham.[51]

PFC can provide more detailed information about the approaches taken by different states. A starting point is the 1995 paper on this subject by Dr Stephen Whittle, “Legislating For Transsexual Rights - A Prescriptive Form”[52]

It is important is to recognise the limitation and inequity of systems which demand too much in return for recognition. This is explained, with examples, in Dr Whittle’s Paper referred-to above[53] and represents perhaps the most significant issue to be understood and addressed when the working party seeks solutions.

The life stories of trans people and the solution adopted by each one, with and without engaging medical assistance, is an individual affair, just as trans people’s identities are. Those dealing with people in these circumstances learn to appreciate that trying to force all trans women or trans men into one mould is ultimately as repressive as denying the reality of their identities in the first place.

PFC recommend therefore that any study of past attempts at legislation by other states be considered with these facts in mind :

Few women or men conform to stereotypes in terms of appearance or dress and such stereotypes as exist are generally historically transient.
No other legislation require that persons submit to a particular set of medical procedures or conform to contemporary and local stereotypes in order to be accorded the same rights and the same respect for privacy and their identity as anyone else
Medical professionals may have a role in part of the transition undertaken by trans people, but it is not an exclusive one and should be viewed as secondary to the role of the trans person themselves - as a consumer of medical services which they are capable of selecting or rejecting for themselves.
Medical professionals may have a role in explaining one or more possible reasons why an individual might be trans. They may have a part to play in helping an individual to recognise and decide how to cope with their trans identity, and the pressures they will face during transition. They may have a role in advising upon and prescribing hormones and in monitoring the health of a person whilst taking these. They may have a role in making the surgical changes that a trans person feels they need. They may have a role in offering aftercare to people who have gone through any or all of these steps. However any role medical professionals may have in setting criteria for defining the point at which a trans person is recognised in their new role must be considered by reference to the charities and self help organisations who have the most practical experience of the exercise of that power already.

Other attempts at legislation should be read critically, therefore, with these thoughts in mind.

6. Some Common Concerns Regarding a Solution

One of the commonest expressions which trans people encounter, when writing to Government Departments through their Member of Parliament, is that their circumstances present “complex problems”. Of the hundreds of such Ministerial responses fed back to PFC for analysis, however, we have seldom seen any of these “problems” articulated and on the rare occasions where an example has been cited, the basis of the concern turns out to be a possibility so rare or theoretical that it has never yet occurred.

What we do know, however is that :

In the countries where some mechanism or other has been created to recognise the social gender role of trans people, the number of court cases instigated by such people has fallen dramatically following introduction of the legislation. Those cases which remain generally relate to problems created by the legislators in failing to appreciate the realities of the circumstances of the people they aimed to accommodate

From the outside looking in, therefore, it would seem that the “complex issues” so often referred-to stem from a vague sense of fear concerning a group of people visualised according to ill-informed stereotypes, rather than a serious attempt to investigate just what problems there are or which might need to be addressed.

In contrast, PFC and its’ associates in the charities and self help groups that deal with trans people all the time have, over the space of 30 years and more, come across every conceivable problem, imagined or otherwise, raised by the existence of trans people.

PFC is also in constant contact with representatives of trans people around the world too, including those states where official recognition exists. We can therefore say, with strong justification, that the problems which legislators most commonly imagine are no more serious or frequent than those raised by other citizens going about their lives, having sexual relationships, entering into marriages, having families in or out of wedlock, getting divorced, leaving wills and/or inheriting estates.

The biggest class of concerns usually relates to the responsibilities which fall on an individual before and after official transition - and in this area PFC are quite clear :

People should lose none of the responsibilities acquired prior to their change of legal gender
All that we seek, in essence, is for people to acquire the rights and responsibilities associated with their newly recognised gender role

With this as a guiding sentiment, the realities (and imagined complexities) of such issues as marriage and inheritance become much easier to address.

We deal with some of these issues in section 7, but in the spirit of offering an agenda we suggest that the following are the commonest concerns :

6.1 The Marriage of Trans People

6.1.1 New Relationships

The greatest irony surrounding the question of trans marriage is that it is several orders of magnitude less likely than gender change itself.

As in the rest of society, trans people have diverse sexualities.
A proportion of trans people identify as lesbian or gay after transition, that is, many trans women seek relationships with other women and some trans men seek relationships with other men.
A significant number of trans people also identify as asexual, being disinterested in sexual contact with either sex, or simply abstain from seeking relationships with anyone because of a conviction (perhaps borne of their treatment by others) that nobody could possibly find them attractive or want to share a life with them.
Many trans people are married already - through relationships formed prior to transition
For many trans women, age reduces the likelihood of finding a suitable unmarried partner still further

For all these reasons, out of a total estimated UK population of 5,000 post-operative trans people, it would seem unlikely that marriage to a person of the opposite gender is a serious prospect for even just 10%

Those trans people who identify as lesbian or gay, are currently in a much more favourable position than others in that position, since the law currently encourages them to marry members of the sex they are attracted to.[54]

Which raises the true irony of legislation in this area - except for commentators who believe that all trans people should be uniquely prohibited from ever marrying.

It is clear that some people oppose the idea of allowing trans people to marry a person of the opposite sex because they think that this would in some way sanction homosexual marriage. This is based upon a profound misunderstanding of a trans woman’s or trans man’s identity (and what their partner sees in them too). Yet the status quo means that real homosexual marriages are quite legal and take place with increasing regularity.

There is no queue of gay men or lesbian women seeking gender reassignment in order to “legitimise” their union - either here or in countries which would then recognise their new identity and marriage rights. People might desperately wish to marry, or to inherit the family fortune, but there is no evidence whatsoever of anyone being prepared to lose their own gender identity in order to secure such things on a technicality.

6.1.2 Pre-existing Relationships

The other “problem” bound up with marriage and recognition of a change of status concerns those who have married before transition, to someone in the opposite “natal” sex.

The effect of legally recognising the trans partner’s new legal sex in such circumstances would be to technically “create” a homosexual marriage.

In considering this effect, some realism is required though :

The phenomenon of trans people marrying prior to transition is something which is expected to decline, as trans people are no longer encouraged to marry in order to “cure” them of their gender issues. Greater awareness and social acceptance of the subject also means that a new generation of trans people is transitioning in their youth, as all trans people would probably have wished to do in the past as well. Older trans people cannot be criticised in hindsight for having taken the decisions which they were strongly encouraged to take and which represented at the time their only prospect for happiness. For the same reason it would be an abuse of the human rights of both partners to insist that they should divorce as a precondition of the trans partner being recognised for what they are.
Those same trans people, prior to any consideration of their legal status, are married already, and there is nothing to stop any couple from living together in a same sex relationship either. What purpose would be served by insisting that a couple should divorce in order to officially recognise that one half of the pair is the woman or man they appear to be.
The rights and interests of the non-trans partner must also be considered. Divorce inevitably involves a loss of security and financial benefits for at least one partner. Where one partner is trans, the likelihood is that both partners will lose these.
As noted in the case of new relationships, the state appears to be quite sanguine about the current status quo, in which a trans woman is allowed to marry another woman but not a man. It would appear wholly inconsistent, therefore, to be suddenly concerned about similar partnerships being allowed to remain.
An insistence upon divorce for trans people, as a prerequisite for legal recognition and protection by the state, would be completely without precedent in any other sphere of life.

It can be argued that whereas the current law encourages lesbian or gay marriage for trans people, a logical acceptance of their status would end this anomaly and leave society with only the instances that have been created by its’ failure to accept and accommodate their existence in the past.

6.2 Inheritance

The issue of inheritance is another area that inevitably concerns those thinking about the consequences of legal recognition for trans people, although it is a debate that is fuelled by very few actual examples.

The fact that a sibling’s gender was mistakenly assessed at birth leaves their contemporaries in no worse a position than they would have been had the gender been correctly identified in the first place.
When someone writes in a will that they wish to leave certain things to their “eldest son” they are arguably not defining a role but using a shorthand for a person whom they know. Thus if that person then becomes a daughter, or if a previously elder daughter becomes an eldest son, then there should be no doubt as to the original intent that a court cannot determine on the facts.

There is, in fact, only one known precedent for an incident involving inheritance, which involved the claim on a substantial estate and Baronetcy by Ewan Forbes[55], a trans man who had been registered at birth as a girl, brought up as a woman and who then underwent what we would now describe as gender reassignment treatment. Interestingly, this case was dealt with almost three years before Corbett v Corbett and should have been considered at the time of the latter, but for a deliberate decision by Justice Ormrod to exclude it. Records of the case were then effectively “lost” for a quarter of a century until unearthed by PFC and Parliamentary Forum research in 1996. In summary, however, the courts at the time arrived at the conclusion that the estate should fall to Ewan Forbes, in spite of his former apparent birth certificate registration.

The courts in Egypt in 1998 dealt with a case of inheritance where the ’eldest son’ had undergone gender reassignment. They held that the interpretation of the will depended upon the gender of the beneficiary at the time the will was made. If the will was made whilst the transsexual woman was still the ’eldest son’ then she would benefit, if it was made after her gender reassignment the benefits would pass to the next male child who had become the eldest son.

As noted in the previous section, the notion that siblings would willingly try to pass themselves off as a trans person, undergo surgery and then use a new legal status to “jump the queue” for an inheritance is simply not borne out by any practical evidence in countries where such an action might benefit them.

6.3 Social Security, Pensions and Taxation

In the United Kingdom there have been moves to progressively remove the differences in the way that men and women are treated in terms of taxation, pensions and social security rights. For instance, all citizens born after 1955 will in future retire at the same age, regardless of sex.

PFC encourage this type of development, which benefits trans people by creating equity of treatment for all. Ideally, this process of equalisation should be extended and accelerated so that, one day, the state might have no practical interest in the sex of an individual for such purposes at all.[56]

Whilst there remain differences between the state benefits and rights accorded to the two sexes, there remains of course the question of how to treat a citizen who has undergone a change of gender. Should they simply be accorded the rights and benefits accorded to members of that gender henceforth and, if not, how can their case be distinguished from others without bringing attention to their status and past.

The problems of the latter approach are self evident. Trans people can, for instance, have their NI records flagged as “sensitive”, but this block on normal handling of their records in itself draws attention to the individual and creates difficulties in applying for and collecting benefits. Whether it is illegal to do so or not, there is a continual risk that any trans person may find the statements on their record leaked to a third party and many therefore feel justifiably vulnerable as a result. The net effect of this fear is to discourage many trans people from applying for benefits to which they are entitled, thus compounding an already disadvantaged status.

Trans people are also vulnerable wherever data sharing takes place between the National Insurance computer and other agencies, such as in the case of housing benefit administration. As an example, a trans man in Kent reports repeated occasions on which official post is sent addressed to “Miss” <<former female name>>. Although he may have now succeeded in preventing this by repeated complaints he now, instead, receives questionnaires demanding to know whether this woman still lives with him.

Problems are not limited to official records either. Operators of pension plans have an obligation at present to handle the records of trans men and women differently to others, because of Inland Revenue requirements. As most computer systems are not capable of dealing with this anomaly companies find that they have to record trans women as male and trans men as female in their systems. This results in that information being displayed on VDU screens and is regularly regurgitated on statements and other stationery.

So what are the problems in simply treating an estimated 3,000 trans women as women and 2,000 trans men as men ?

In the case of pension rights, a question only exists for that rapidly diminishing portion of trans people born prior to 1955 but who have not yet achieved retirement. This number will have diminished to zero by the year 2019, of course, but in the meantime (on the basis of age surveys carried out in the community) it accounts for perhaps 25-30% of the total - about 1,500 people at most, who then mostly cancel each other out because there are two trans men (who would retire 5 years later) for every three trans women. The net cost then needs to be considered on a proportional basis against the number of years when the claimant might be expected to draw a pension, and in those terms, the effect on the public purse is negligible.

6.4 The Ping Pong Argument

A fear sometimes expressed is that, having gone to the trouble of changing a trans person’s records they may change back again.

It is true and regrettable that a very small number of people, generally having been inadequately helped in the first place, may choose to abandon their transition and revert to their former gender. This, after all, is what the so-called “Real Life Test” (RLT) is supposed to be for. It has to be thoroughly understood why such a thing might occur, however.

The Real Life Test exposes the subject to exceptionally high levels of stress. Many find this is a time when they are rejected by people close to them, they may experience discrimination at work, they are obliged to make their way in life at a time when they may look “strange” and therefore become the target for abuse in public. It is also a time when, perhaps for the first time, an individual is at last able to confront the issues in their lives. They may find then that they are unable to cope with these pressures.
The process of counselling prior to the Real Life Test is supposed to prepare individuals for this experience and, especially, try to “weed out” those whose gender issues don’t require a reassignment to resolve.
Unfortunately, the counselling process is in some cases inadequate. There are many who seek to make large sums of money from vulnerable people in the so-called “Gender Industry” - meeting the gap created by the appalling state of NHS provision. These are people who set themselves up as “Gender Counsellors”, take money from the unwary, “diagnose” them as transsexual, and then send them out in the world unprepared.
Equally, once a person has completed their “RLT”, many find themselves then on impossibly long waiting lists for surgery, or caught in a Health Authority which operates a policy against providing such surgery. In these circumstances, the individual is then stuck in a no-mans’ land, unable to progress, and with the conflict between their gender identity and body having been amplified by the fact that they are otherwise progressing well in life. Many people may spend eight or nine years in this ’physical’ limbo, suffering stress not because they are transsexual, but because they are left as neither one thing nor the other.

In these circumstances it is perhaps surprising that so few people see turning back as a solution. Perhaps it is a mark of how real their identity is, that trans people are prepared to endure the otherwise intolerable in order to be true to it.

The answer, therefore, is that Yes, people do very occasionally revert prior to surgery. It is a very small number, however, which we would all hope to see diminish with better and more professional treatment, the elimination of downright cruel practices by Health Authorities and with a general reduction in the opposition faced by transitioning people in society. To suggest that the vast majority should be limited in some way because of this tiny minority, however, is absurd.

7. Detailed Recommendations for Addressing the Issues

7.1 Introduction

We begin this section with a short anecdote…

One Vice President of PFC has been in an ongoing dispute with the company operating her personal pension plan for almost six years, after deciding to tackle them about the distress caused to her every time she opened a computer-generated letter which prominently declared her to be Male. The company was “sympathetic”, they said, “so long as she didn’t mind receiving a less-favourable annuity on female rates when she retired then they, themselves, had no issue with correcting their records”. “The problem”, they said, “was with the obligations imposed on them by the Inland Revenue”. Various fudges were tried. The company sent all correspondence to the customer’s actuaries, for instance, who were then supposed to TIPPEX out the offending word before forwarding the post. This didn’t work, of course, because by the time the first piece of post arrived, everyone had forgotten the arrangement. More complaints followed. The company offered to transfer the customer’s policy, without penalty, to another company. Again, the customer declined, after all, she had chosen this particular company because of its’ exceptional performance. Why should she accept a lesser deal? The customer insisted the company should alter their computer system because of the rule imposed on them by the Inland Revenue. The company cited Year 2000 problems as a defence…

Six years of dispute, no resolution, and then, this year, the company suddenly found that they had an option. A recent European Court case, which had forced the equalisation of treatment for “protected benefits” meant there was no longer a reason why the company couldn’t treat their customer like any other woman. Problem solved.

The purpose of this anecdote is to underline the fact that the problems encountered by trans people are very often indicative of a more widespread inequality in society. Fix the inequality and, in that case at least, the gender of the individual becomes an irrelevance.

Why do we need to record the sex of citizens on their birth certificate at all, if it is not to simply enable one person to be treated differently than another? - For discrimination to take place.

For this reason, PFC favour solutions to the problems of trans people which work by benefiting everyone, and we suggest that this should be high on the list of recommendations made by the working party.

Nevertheless, big changes take time, and there are some issues that are quite unique to the business of changing gender role in society, rather than in simply being a man or a woman.

The rest of this section is therefore an agenda for change, which PFC would like to see

7.2 The PFC Agenda - Seven Wishes

Not to have to disclose details of our gender reassignment unnecessarily.
To have the right to marry a member of the opposite gender, and to have all the benefits that accrue with marriage for ourselves and our partners - whether it is the right to claim a spousal exemption from inheritance tax, to claim a spousal pension, a right to jointly adopt children, and to make the claims that can be made upon separation or divorce.
To have the right to retain a marriage celebrated before gender reassignment was undertaken
To have the freedom to enjoy a job without fear of dismissal or harassment because of our gender identity, our gender presentation or our gender role change.
To have the right to use the legal process to protect ourselves in all aspects of our life in our new gender.
To have the right to a social parental role, and to formalise it legally, in our new gender role.
To have the right to be acknowledged at death as being a member of their new gender group, whether on registration of death, or in the consideration of wills, matters of intestacy, or inheritance.

7.3 Achieving some of those Goals without legislation

Many of the above goals can be achieved without legislation:

It would be possible to ensure that (many) individuals do not have to disclose details of their birth sex unnecessarily if all Government departments, and other emanations of the state could ensure that they no longer require a person’s birth certificate for the purpose of identification or validation of details or the giving of benefits whether financial or otherwise.
By acknowledging that a mistake had taken place in determining sex at birth, it would be possible to allow transsexual people to validly marry people of their opposite gender by allowing the amendment of the transsexual person’s birth certificate to recognise their new ’sex’ using the current provisions available within the 1953 Births and Deaths Registration Act; (i.e. the production of a statutory declaration and a doctor’s letter to state their had been a mistake of sex determination at birth) and considering the corrected sex valid for the purposes of marriage.
By not prosecuting (or threatening) people under perjury legislation, personal privacy and dignity would be maintained if a ’transsexual couple’ (i.e. a transsexual woman and a transsexual man) married with the transsexual woman calling herself ’spinster’, and the transsexual man ’bachelor’ etc. for the purposes of the Banns, the wedding ceremony and the signing of the register.
By affording transsexual people the changes above it would be possible to allow them to form families with legal relationships. By enabling marriage it would allow transsexual spouses to jointly adopt the children of their spouses so ensuring that they have joint parental rights, and the rules relating to intestacy, welfare benefits, tenancies etc. are enjoyed on the same basis as other families with married parents.

7.4 Achieving the rest by legislation

It would be possible to ensure that transsexual people do not have to disclose details of their birth sex unnecessarily if legislation was passed allowing the birth certificates of people who had undergone gender reassignment to be re-issued from a point whereby the transition from one gender role to another was formally recognised. (i.e. an adoption style birth certificate referring back to the old certificate which would be accessible to interested parties if justified).

This would have the following supplementary effects:

Personal privacy and dignity would be provided in many areas where it is currently lacking e.g. dealing with government agencies, vehicle insurance companies, pension providers etc.
It would provide ’good evidence’ following the precedents of other common law jurisdictions such as many US states, and New Zealand that the ’post-transition’ marriage of such a person to a member of the opposite gender group should be recognised as valid for all the purposes.
It would allow transsexual spouses to jointly adopt the children of their spouses so ensuring that they have joint parental rights, and the rules relating to intestacy, welfare benefits, tenancies etc. were enjoyed on the same basis as other families with married parents.
It would ensure that the spouses of transsexual people would be able to access the pension rights, job ’perks’, and rights on separation and divorce afforded to other married couples.

7.5 Recommended procedure and qualification criteria

To ensure that requests for civil status recognition are not made

Lightly, or
with the intention to defraud, or
by individuals who have not undergone medically supervised gender reassignment, or
by people with mental health problems, or
by minors

it is suggested that the following criteria are embodied within any legislative or administrative approach to the amendment of civil status re-issuing birth certificates. It is suggested that the existing legislation could be used or amended, or new legislation developed for this sole purpose.

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