Meeting the needs of transsexual people

The Inter-departmental working Group on Transsexual People’s Issues

CHANGE, The FTM Network, Gender and Sexuality Alliance, The Gender Trust, GIRES, Liberty and Press For Change to the Interdepartmental Working Group on Transsexual People’s Issues

1.   Introduction

1.1   We are grateful for this opportunity to address you.  It would have been helpful if you had felt able to provide us with some guidelines as to areas which you might want extra help with.  But time is short, and so we hope you will feel able to use the time at the end of this presentation for discussion with us, or questions which might allow us to help you clarify any areas we haven’t touched upon here.

1.2   This presentation has been jointly prepared by the representatives of the different groups in this room.  The combined membership of these groups includes half, if not more, of the UK’s transsexual population.  We wish to go beyond the submissions of our organisations and not simply explain what we need, but why now is the time to be considering the changes we have sought, and the ways in which they could be afforded.  We will also clear up some of the issues which might appear most difficult.  Today’s presentation can be said to supersede parts of our previous submissions, in that time and careful thought has allowed us to crystallise the spirit of those.

1.3   We also feel that it is important to stress the significant work that the trans community does in providing social and emotional support to its members, particularly its younger members (who are particularly subject to social exclusion, and vulnerable to the deficiencies in access and quality of much NHS provision).  Much of this work is a matter of informal networks of support, much of it is carried out by or through the various groups represented here.  The community has a long history of providing a voluntary sector contribution; any discussion of the very limited cost implications of our proposals should, we believe, recognise this.

2.   What Transsexual People Want.

2.1   It is often thought that what transsexual people seek in terms of change is the right to have their birth certificates re-issued and the right to marry in their new gender role, but this is only partly true.

2.2   Gender Recognition

2.2.1   Firstly, birth certificate re-issue is not of itself what is sought.  Rather we seek changes in the civil registration system so that the ’public’ and administrative record of who we are reflects the gender in which we identify.  As recent Parliamentary Questions have shown, there are still many circumstances in which birth certificates are used to prove a person’s identity.  Choice as to whether or not to reveal having undergone any medical treatment, in circumstances where it is irrelevant, is a civil right available to other citizens.  It is a civil right we seek for ourselves.

2.2.2   Why we are unhappy about our birth certificates is because they deny us:

• Privacy, about a medical condition often long since resolved, when it has no bearing on the matter in hand; such as in employment and vocational training situations, or a visa application for a short holiday.
• Control over when, how and to whom we tell our medical history, when it is relevant: such as in making a life insurance claim, or claiming a state pension

2.2.3   Privacy in these matters will not in itself provide protection from the abuse, discrimination or physical violence that many of us have suffered.  But it would provide a clear message that we are valued as who we are, by the government we elect.  Undoubtedly any changes in this area would also have an educational effect similar to that of the Race Relations Act, and ensure that institutional discrimination in both public and private sectors was addressed.  Just as the decision of the European Court of Justice in the P v S case has been instrumental in ensuring that employers think twice before failing to support their transsexual workers.

2.3   Legal Marriage

2.3.1   Marriage in the new gender role is indeed sought by many transsexual people.  Like others, we want the opportunity publicly to declare our commitment to and love of our partners.  But marriage is not just a religious or spiritual ceremony, it is also a civil contract under which its parties acquire various responsibilities, rights and social benefits.

2.3.2   What we want is to be able to provide economic and emotional protection for our families, but at the moment we are uniquely placed in being unable to contract a legally secure marriage with a partner of either sex.

2.3.3   In many cases, transsexual people have already been economically disadvantaged due to lengthy periods of time in which career aspirations had to be put on hold as medical treatment was sought and undergone.  For many of us, social pressures will have meant our education has suffered.  Job insecurity, or failure to get a job due to prejudice, will mean that we will have spent time being unemployed.  Finally as we achieve some sort of social acceptance we then discover that without the right to contract a marriage many of the financial benefits that accrue on marriage such as through compulsory pension schemes or the rules on intestacy are almost valueless.  Consider a transsexual person’s membership of almost any public service pension scheme.  We will have had a limited period of steady employment and so will have been unable to build up sufficient benefits for our own old age.  But then to add injury to insult we discover that we cannot provide security for our partners and the children of our families, because only spouses and legally related children can benefit if we are unfortunate enough to die before retirement age.  We find ourselves having to buy extra financial security for our families, and yet we are invariably already financially worse off than our peers for all of the other reasons, such as entering a career late, or having missed out on formal education.

2.3.4   Without an opportunity to contract a valid marriage we - transsexual people - cannot jointly adopt the children of our family.  They may well not be biologically related to us, but they will certainly have been wanted children.  Our children are not allowed an opportunity to benefit from their position within a family.  It must be remembered that the European Court of Human Rights made it quite clear in a unanimous decision in the case of X,Y and Z that the family of a transsexual man is indeed a family.  I am sure that one day the children in such a family will seek their right to a family life through the Courts.

2.3.5   Marriage confers an enhanced form of citizenship, and whilst it still has those benefits - which exist within our modern welfare state primarily to ensure that children and spouses are not left seeking welfare benefits - it is a shocking anomaly that people who want to provide for their families are excluded from doing so.

3.   Why Now is The Time for Change.

3.1   For many years the common social, medical and scientific viewpoint on transsexual people was that we sought to ’disappear’.  The last few years have seen that idea overturned as transsexual people used both the media and the courtroom to demand their inclusion in society.  The process of obtaining public acknowledgement has meant that many of us are now reconciled to being seen as transsexual men and women and have gained a happy understanding of and pride in ourselves through that process.  But seeking public acknowledgement does not mean that we have given up the fight to seek our place in society.  The success of our campaign has meant that for many of us, in our workplaces, in our families and amongst our friends and neighbours our transsexuality is no longer a matter for derision, and has simply become a rather interesting aspect of our lives.  As a result of our campaigning many of us are now happy to be out as trans people in society - but we are seeking for that to be a choice we make - at that moment that choice is not an option.

3.2   It is important to remember that many transsexual people want to be open about their trans status.  All the groups represented here include many who are proud to be transsexual.  What we seek is the right of transsexual people to choose whether to be identified as trans, and to be able to make that choice freely and without fear of discrimination or danger if we choose to be “out”.  A society in which people are free and safe only if their individuality is hidden is no more a free nor a safe society than one in which such privacy is unavailable.  We are primarily seeking an administrative system which will allow us, after undertaking the difficult road of gender transition, to take our place in society, whether or not openly as transsexual people.

3.3   Increased Recognition of the Condition

3.3.1   Being transsexual is not a lifestyle choice, it is a condition or syndrome wherein the drive for reassignment is overwhelming.  Increasingly scientific medicine includes transsexuality as one of the many intersex conditions that exist.  Medical intervention is now legally recognised (by the Court of Appeal) as an entitlement to facilitate gender role reassignment.  Indeed, treatment to facilitate gender reassignment has long been available through the National Health Service.  It is acknowledged as being not only successful but also essential to many people’s well being and social participation.  The administrative concessions on passport changes, or public documents such as driving licences and tax records have all made tremendous differences to the quality of our lives, and importantly have not incurred any notable political or economic cost to government.  Yet the continued inaction of government in the areas of civil registration and marriage, have mean that even after the completion of treatments, social acceptance and participation often persists in proving to be very difficult.

3.4   The Promotion of Equal Rights

3.4.1   Continuing failure to recognise our new status in law, will condemn us to remain victims of social prejudice.  The lack of substantive government recognition of the problems our contradictory legal status brings, allows others to victimise and persecute us, both at an individual level and at an institutional level.  That victimisation ranges from the apparently minor - an official letter wrongly addressed - to the very severe: individuals have lost their jobs, lost their homes and in some cases have lost their lives.  In one recent case in London, a transsexual woman who was assaulted and raped by a boyfriend she had told her history to, was laughed at by junior police officers.  The detective in charge only agreed to proceed with a charge of rape, rather than assault, after Press For Change sought out, and paid for, the transcript of an unreported court case in which it was held that a transsexual woman could be raped vaginally.

3.4.2   This is the reality of our lives and we can never escape it as things are.  We know we are transsexual men and women, and many of us take deep pride in that, but we become victims of transphobia whilst we are not afforded, at the very least, legal acknowledgement, to ensure that our choices regarding privacy can be freely made.  We are excluded from having the same right to privacy that other members of society have.  The Human Rights Act has already received Royal Assent, yet the principle that liberties and rights can only be restricted where a person is doli incapax or otherwise by the courts, does not apply to us.

3.5   The Effect of the Current Obstacles

3.5.1   Prior to the campaigns of recent years, most transsexual people faced a level of prejudice and stigmatisation that led to their prospects and ambitions being thwarted at almost every step.  Keeping a job, a home, or even just friends was a rarity after a person’s transsexual status became known.  Privacy is almost impossible to maintain.  The administrative systems that govern lives through sex and gender designations were, and still are, such that a person’s transsexual status becomes known through the most simple of things - a driving licence check, a national insurance agency enquiry, a superannuation scheme that requires a birth certificate to be shown.

3.5.2   These mechanisms have meant that where ill-informed prejudices have been held by others, they have not only been able to survive but also to flourish.

3.6   The Continuation of an Evolutionary Process

3.6.1   Yet despite the prejudice, transsexual people have become an almost common place part of modern Britain.  We have seen huge changes over the last 10 years, particularly in the ways in which transsexual people are represented by the media.  Many members of the British public have very much accepted that we are much like everyone else - most of us wish to have jobs, homes and families.  We want to be able to go out to the theatre, we need to travel on trains and buses, we go to school and college, we shop in the supermarket, we serve our communities and we vote in our democratic society.  It is increasingly understood that we are not a minority subculture with a separate version to everyone else’s of a civilised society, but we are very much part of a new tolerant and inclusive society.

3.6.2   The very existence of this working group supports the principle that a great deal of social acceptance has been achieved already.  Government has over the years made concessions in areas such as the re-issue of passports and driving licences.  However the majority of the changes that have taken place over the last 20 years, have not occurred through the actions of government.  They have come about because transsexual people, themselves, have taken up the challenge to show that all we ever sought, with or without the help of medical intervention, was inclusion; our own places within, and as part of, our society.

3.6.3   As regards civil registration, government has for many years accepted the need for flexibility in difficult circumstances.  The issue of a birth certificate for an intersex child can be delayed, at a later stage it can be amended.  The birth certificates of adopted children are re-issued - and in neither case have we seen the walls of the OPCS crumble.  We simple want an extension of that flexibility.

3.7   The Promotion of Social Acceptance

3.7.1   We want to use this opportunity to say that having come this far, the remaining steps to enhance our social inclusion are, we believe, not only necessary, but can be done easily, without attracting unwelcome publicity.  They would make a massive difference in the quality of life not just for the many transsexual people who are citizens of these islands, but also for the friends, family and colleagues with whom we share our lives and who also suffer through our lack of recognition..

3.7.2   Social inclusion is the backbone of this government’s social policies - all we want is social inclusion.  Any nation which legitimises, even unintentionally, the social exclusion of any of its citizens simply because of a condition, increasingly recognised in scientific medicine as one of the many possible intersex conditions that exist, and which has no bearing at all on their ability to participate fully in society cannot be a nation worthy of the name.

3.7.3   Whether it is one person, or as in this case, maybe 5000 people, this social exclusion must not continue.  Many other nations have successfully responded to the needs of the transsexual people in their societies.  You will all I am sure have seen Liberty’s amicus brief to the European Court of Human Rights in the Sheffield and Horsham case.  We are certain that this government does not want to retain Britain’s position along with Albania and Ireland, as the only signatories to the European Convention on Human Rights to fail to accord recognition to the change in gender role of the transsexual person.  Further, as European economic harmonisation grows and global mobility increases, British citizens who are transsexual will increasingly become exiles in a world where every other transsexual person will be afforded recognition, social responsibilities and rights in their new gender role - recognition they will not only have abroad but also when they step onto our shores.  Continued restrictions on our social mobility within the European Union may well have implications for the UK’s obligations under the Single European Act.

3.7.4   Finally in this section, we want to comment on the increasing effect of modern technologies in our lives.  There are now many ways in which records of civil status can be updated, amended or in other ways altered without any significant risk of the original records being lost to those who might need them.  As our knowledge of all sorts of intersex conditions grows, as medicine increasingly admits to there being a significant number of births in which it is impossible to guarantee that the sex designation given is unquestionable, and as our society increasingly removes the barriers to equality between the sexes, it may be that ’sex’ is no longer something that we should record about the individual.

3.7.5   However if government chooses to continue its documentation, then we must be aware that we do so, nowadays, for little other reason than to provide demographic data.  Transsexual people are such an insignificant number in our society, that their transfer between categories cannot possible affect the overall collection of statistics.  In fact modern computerisation would allow any change of categorisation to be taken into account in the collection of statistical data.  And such mechanisms might actually do us a favour, we would be able to count up exactly how many transsexual people there are in Britain.  Once and for all we would be able to prove how little cost we are to the National Health Service, and how much we benefit the country in the payment of taxes and other social contributions.

4.   What You Can Do

4.1   We believe that the things we are seeking can only be provided by government action.  As a community we have done more than our bit, in re-educating the wider British public to accept us as valid members of a diverse society.  However the final thrust must come from government.

4.2   The simplest and most secure route to affording this would be through primary legislation such as the Alex Carlile bill in 1996.  However that may well put government at risk of adverse and sensationalist attacks from the tabloid press, and may initially afford a basis for a backlash against some transsexual people.  There are, however, we believe ways in which changes to the civil registration system can be made, and the right to marry can be recognised without having to resort to primary legislation.

4.3   Changes to Civil Registration

4.3.1   Many aspects of our lives are already made easier by government departments accepting what has become an almost universally accepted procedure.  The transsexual person on transitioning from one gender role to the other provides the public body with a statutory declaration of their name change and a letter from the doctor verifying that they are undergoing gender reassignment and that their change of gender role is intended to be permanent.  Through this mechanism driving licences, passports, medical cards and tax records are changed.  National insurance records can also be flagged up as requiring discrete access, if the transsexual person so requires.  Most private, local authority and educational sector bodies have also accepted this procedure as the necessary proof required to alter their records.  The procedure is simple, very low cost and because it requires a doctor’s verification is not open to abuse, yet it is also sufficiently comprehensive in its criteria to include ALL transsexual people.

4.3.2   The problem with the current system is that it is concessionary, and in some cases does not run as smoothly as it should.  A good example of the failure of a concessionary system, has been the example of death certificates.  Since the early 1970s most relatives reporting the death of a transsexual person have been dismayed to receive a death certificate indicating the sex of the deceased as that in which they were registered in at birth.  Recently a transsexual man reported the death of his father, and was shocked to receive a certificate indicating him as the informant in his male name, but qualifying him as the daughter of the deceased.  Press For Change along with the OPCS has looked for the regulations which might govern these issues.  There are none.  In fact there appears to be no reason, regulation or guidance that would prevent a registrar registering the death to indicate the new gender on the death certificate.  The OPCS felt that what had happened was that local registrars, at a loss for any guidance, had felt obliged to deal with death registrations of transsexual people under the same set of rules they might use if a transsexual person requested marriage, or if a transsexual person had asked for their birth certificate to be amended.  Concession can only work if universal in its effect, and in order to be universal it must be clearly regulated - and then it is no longer a concessionary practice.

4.3.3   We believe that the route to take, initially, is that of a regulation such as:

The Registrar General will issue a new statement of public record in the form of a ’gender confirmation’[1] birth certificate, where a person is undergoing gender reassignment and this change is intended to be permanent.

4.3.4   This would afford the choice of privacy and control to the transsexual person, but which would not have retrospective value.  We have written extensively about this in our submissions, and so we will not repeat ourselves.  But we submit that such a mechanism would not destroy the historical accuracy of the birth registration system, rather it would enhance the social inclusion of a group of citizens who have worked hard to overcome difficult circumstances in their lives.

4.3.5   In this way change could be discrete, and yet a system could be developed that could be adaptable in the future, if circumstances showed the need, and primary legislation could be considered later if required to codify those changes.

4.4   Enabling Valid Marriage

4.4.1   As regards marriage, we all here believe that the civil registration with its attendant benefits, of all loving and committed couples, whatever the perceived or actual sex of the partners, should be possible.  We believe that many heterosexual people share our belief that for marriage to remain morally tenable in a pluralist society, it should not be a special privilege reserved for the majority.  Its pride and glory will have been to have created a vocabulary for the recognition of relationships that other groups find attractive enough to wish to share.  The important thing for the future of sexuality and the acceptance of difference is for different groups within society to be able to choose to learn from each other - many heterosexual partnerships could usefully learn from lesbian and gay relationships respect for each other’s autonomy, for example.  The work done in society by long-term partnerships within all sexualities, whether in caring for subsequent or previous generations, or facilitating each other’s careers and the socially valuable work those careers entail, is so important that the commitment of all sorts of couples should be equally valued and recognised.

4.4.2   Modern marriage has moved far beyond the dictum in Hyde and Hyde: that marriage should be a voluntary agreement, entered into for life, to the exclusion of all others, between a man and a woman.  In our multi-cultural society many arranged marriages now take place which are not voluntary in the sense many might understand it to have been meant.  Figures published last week show that nearly 2 out of 3 marriages end in divorce, and adultery is no longer a sure fire route to divorce.  Marriage has also long moved beyond the point of being little more than consummation, procreation and property transfer.  As a society we would not dare to consider refusing the right to marry to a person with a disability that meant they could not consummate the marriage through penetrative sexual intercourse.  The courts nevertheless might make voidable such a marriage if the other spouse had not been made aware of the difficulty prior to the marriage ceremony.  As a society we would never refuse an infertile person the right to marry, and in those circumstances it is highly unlikely the courts would make such a marriage voidable even if one spouse had known and not disclosed this material fact prior to the ceremony.  All that is left of the traditional (yet modern) marriage is the requirement that the parties should be a man and a woman.

4.4.3   We believe that the administrative decision made in the Joella Farmer case was correct.  Just as the courts would not dissolve the marriage of an androgen insensitive woman born with a vagina and brought up as a girl, who discovers that she has XY chromosomes and gonads.  Yet under Ormrod’s criteria, that apparently governs these matters, she would only be 33% woman.  The reality is that it is easy enough to determine the sex of a transsexual person, simply by allowing them to live in the gender role that they choose.  Sex cannot be determined by percentages.

4.4.4   We believe that transsexual people should be allowed to take part in marriages in their new gender role, as long as any previous marriages have been dissolved.  We also believe that such marriages should not be automatically void using the Ormrod criteria, rather that they should be voidable in the same way as other marriages are.  We believe that to protect spouses, failure to consummate could lead to the dissolution of a marriage, just as it can in other marriages where their has been prior deceit as to the ability to consummate.  As the law stands failure to give material information to a spouse, such as implying that procreation is possible, is a material fact that can lead to the dissolution of any marriage.

4.4.5   All of this would be achieved for transsexual people without amending primary legislation.  A simple regulation could be made;

That for the purposes of the Matrimonial Causes Act 1973, where a person has been issued a ’gender confirmation’ birth certificate, there will be no lawful impediment to the person marrying as a person of the recognised sex.

4.4.6   Marriage is a sacred institution, it is about love and commitment, and it is for that reason that we see many churches, and other religious groups affording transsexual people the nearest ceremony they are able to give - a blessing.  Our experience and information is such that we firmly believe that there are very few people within any of the major religious groups who would not welcome allowing transsexual people the right to marry,.

4.4.7   However that is in no way to ignore the importance to many of our community of the pressing need for legal recognition of same-sex partnerships.  A significant proportion of trans people, probably more than in the rest of society, is homosexual or lesbian.  We will continue to work with other groups to achieve legal recognition of their partnerships.

4.5   Monitoring Transphobic Crime

4.5.1   Thirdly we would ask that transphobic violence and hate crimes are specifically and separately monitored, when police services are taking action to monitor homophobic violence.  This will cost very little, but will at least prove the reality of our case.

4.6   Protection from Intrusive Media Attention

4.6.1   The final thing we would ask is that the working group recommends to government, when considering privacy legislation, that a person’s trans status be one of the protected areas, at the very least for those who are not involved in public life.

5.   The Requirements for Civil Status Recognition

5.1   One of the final points we want to bring to your attention arises out of our comments above.  Ormrod made chromosomes, gonads and genitals the defining factors in sex.  There is no doubt that his test is no longer scientifically viable.  One problem that has arisen in a few jurisdictions has been the requirement of genital surgery before a legal change of status is recognised, or the failure to recognise a marriage where genital surgery has not been undergone.

5.2   The transsexual people who suffer most from these distinctions are those whose health problems preclude them from major surgical interventions, and transsexual men - female to male transsexuals - for whom genital surgery is rarely an expedient option.  Phalloplastic surgery is very expensive, can involve multiple major surgical procedures, and is very variable in its results with little guarantee of success.  Rather than enhancing life quality it is far more likely to result in extreme social isolation, loss of health and can even endanger the life of the person undergoing it.

5.3   Many jurisdictions, most noticeably Germany, Italy, most of the states of the USA and recently several Canadian states have successfully been able to afford civil status recognition, and legal marriage, to transsexual men without requiring genital surgery.  Transsexual men, after a short period of time of hormone therapy are in effect sterile in their new gender role, and any fear of the ’pregnant’ man is unfounded and far-fetched.

5.4   Whilst genital surgery is more likely to be a viable option for transsexual women, it is vital to remember that such major surgery is not an option for all, whether for medical or financial reasons — access to such surgery through the NHS can be slow and difficult.  A requirement to undergo such surgery before recognition of civil status would therefore lead to the continued social and legal exclusion of a significant number of transsexual people of both sexes.

6.   In Conclusion

6.1   We hope you have found our presentation useful in addressing some of the more contentious issues that you will be called upon to discuss, and to find solutions for.  We would like to conclude by re-iterating that we, as a community, have already done much of your work for you.  We have created social change, and we have created an unprecedented level of acceptance in British society.

6.2   However if nothing is done, transsexual people will continue to be socially excluded, and bigots will have good excuse and support for their continued prejudice and discrimination, and families and children who are dearly loved and carefully provided for will be the secondary victims of the prejudice that is allowed to thrive.

6.3   You have an opportunity, probably the last for the next 30 years or so, to make a difference to our lives.  We do not believe that this working group was created to do nothing, rather that it is a sincere effort by government to find solutions to the problems we face.  Between us, we have considerable legal expertise in the different mechanisms available, and through our extensive contacts with transsexual people, of their impact on those who they seek to help.  As your work comes to a conclusion, we hope to be able to discuss with you in further detail how the solutions you are considering may be implemented: we look forward to continuing the dialogue started today.

6.4   In addition to help you with your deliberations we have included a short appendix containing 2 documents.  The first is a recent expert witness statement to the High Court in the Bellinger case which addresses the question of whether transsexuality is an intersex condition.  The second is a comment from Dr Z-J Playdon of the Post Graduate Medical Centre of the University of London, which discusses the nature of medical ’proof’ as regards intersex conditions.

6.5   Finally we would also recommend that the working group, or a similar group continues after the initial remit to report by Easter 2000 to ensure that any changes that come into being are regularly reviewed.  Campaigning will continue in the meantime on both the political and legal level to ensure that action is taken.

Footnotes

1 Similar to the ’adoption’ style birth certificate