Who What and Why: the false hope of the ID card
Who What and Why
Transsexuals and the false hope of the Identity Card
(Copyright © 1996)
Let’s be straight. It isn’t easy to campaign for transsexual rights in the UK and not feel a bit equivocal about the great identity card debate. Whether you’re an out and out (sic) card carrying libertarian or, like me, a left wing europhile Tory activist with mixed reservations about the long term implications of a card scheme, it’s hard not to feel that there might be at least a short term tactical advantage in supporting the idea that Britons should, like most of their european contemporaries, have a universal system of identification which, before long, would become the preferred choice of anyone wishing to check who you are.
On balance, I must admit that I don’t like the idea of the ID card .. and I’m sure that many of my campaign colleagues in Press for Change would put it more strongly. Across the spectrum (and the hot links above are just a sample) people who can see further than the next smoked salmon sandwich are agreed that the threat of such a scheme lies not in the piece of card or plastic itself, but in the fact that it hands a solution on a plate to any two bodies wishing to collate their computer records with the common indexing system which the card will bring us.
Now you might think that we’ve got quite a few national indexing schemes already. So where’s the threat? Many of us have driving licenses and credit cards with numbers on. All adults have a unique national insurance number … and in the United States it’s common for virtually any organisation recording information in a computer system to require the equivalent social security number so that, in theory at least, it’s possible for everything from your bank account to your political party membership to be unambiguously collated into one computer-picture of how you lead your life. The only thing limiting the abuse of such a potential in that country is the US citizen’s fundamental belief in the rights of the individual, enshrined in the fabric of the constitution.
Yet in the UK, official bodies and busy bodies alike have never had a cause to get hold of such a potent universal key for collating their information with others. There hasn’t been an excuse for a bank to insist on having your National Insurance number just to open a current account, let alone a telephone company or a local council. Contrary to popular belief, National Insurance numbers aren’t a secure system either … there is no in-built validity or status coding in the number, as I found myself when the local Inland Revenue office accidentally allocated a second one to me! (Very nice, until you get two tax demands I’m afraid). All they’d done was to add 1 to the number. So, if there’s no simple way to check that a National Insurance number is valid and there’s no valid reason for a busybody business to demand that you give it to them, it follows they’re comfortably useless as a universal indexing system, whilst doing the job they’re intended to do quite well.
I cannot see that comfortable state of affairs continuing however when any organisation with which you hold an account or status has an excuse, on a plate, to ask you for an offically-controlled proof of your identity. "It’s to prevent fraud Madam … er … I’m sure you understand.".
Of course, the government would like to suggest that the identity card will alleviate some of the problems experienced by transsexual citizens. To quote health minister John Horam, responding to Alex Carlile’s private members bill at the parliamentary second reading in February:
"Government Departments and the agencies concerned will issue documents such as passports, driving licenses, car registration books, national insurance cards and medical cards in the [transsexual person’s] new name … [and this] … mitigates the obvious problems and distress associated with their position".
The implication is that the identity card scheme would follow that philosophy and therefore be a jolly good thing, as the card came to replace the birth certificate as proof of identity.
But, of course, therein lies the basis of current government policy. The government does not acknowledge the medical re-diagnosis of a transsexual person’s sex after birth (other than on judicial criteria which doctors themselves no longer consider to be comprehensive), and they turn their backs on the simple legal consequence which would flow from that straightforward view of events. The government prefers to hang on to its piece of paper, its record of the facts at the time of birth, to defend every absurd contradiction which this approach forces upon society as a whole, and to insist that it’s all defensible because it has conceded ameliorative concessions where, in fact, it had no choice anyway.
The government proudly proclaims that transsexual people are "allowed" to change and to use whatever appropriately-gendered names they wish … as though this is a special concession made by caring bureaucrats recognising citizens in an awkward position, rather than a historic right enjoyed by everyone. What they omit to come clean about is that saying who you are is not the same as defining what you are.
You can have a new name on your social security records and papers. Anybody can. But a computer screen that says the woman claiming benefit is a male and cannot have a state pension till she’s sixty-five, gives the lie to any suggestion that the government’s ameliorative policy is any more cosmetic than it considers her gender change to have been. Transsexuals even get a terse piece of paper to remind them, in no uncertain terms, of the consequences of using their National Insurance identity card to present themselves as anything other than a member of the sex written on their birth certificate. Similar offensive reminders accompany the issue of a gender re-assigned passport.
The suggestion that the government has, as yet, done anything for transsexual people is therefore risible.
Would an ’M’ or an ’F’ on a new combined driving license cum identity card bring anything new to the debate therefore … or might it, in fact, impose additional responsibilities upon transsexuals that were not there before?
One certainty … and this is the reason for being slightly equivocal … is that it would move the legal debate to a new place, possibly somewhat more in line with that faced by France. The same European Court of Human Rights that narrowly upheld the UK’s refusal to alter Caroline Cossey’s birth certificate in 1990 found in favour of a frenchwoman getting an amended national identity card (in the case ’B versus France’) because of the much more widespread requirement for her card to be shown in everyday life, and the fact that there existed a procedure to alter it in other circumstances anyway. The UK’s counter-argument has always rested on the notion that the birth certificate is not an identity document (regardless of the fact that it is widely used that way), and that it’s a historical record as opposed to a statement or proof of official status.
So would a UK identity card be an official statement of what you are as well as who you are? This would seem unlikely. Indeed, one of the curiosities of the line argued against transsexual plaintiffs by the government over the last few years appears to be that there is no offical document that actually claims to define a citizen’s gender … merely a lot of papers that are assumed to repeat whatever it says on the birth certificate!
Of course, that invites the question that if there isn’t anything that says you’re officially one thing or another, then there isn’t presumably anything to dispute what you say you are yourself ! But, if that’s the case, then why do transsexuals still have all the problems which they do? Why does the word "Boy" on her birth certificate mean that a British transsexual woman can’t be somebody’s wife? The law only says that marriage is a union between a man and a woman … but then it was assumed that the definition of those terms was so obvious and beyond question that there was no need to define them … not even to the extent of suggesting that the social term "woman" was supposed to equate with any contemporary biomedical understanding of the term "female" (and vice versa).
The glue that holds it all together, of course, is the refusal to alter any official records that are involved in material gender-coded social acts (getting married, claiming social security, etc..) … and sticking to the bureaucratic procedure that is based on what those records say. The practical application of marriage law is therefore that the two parties are expected to have birth certificates which display different birth observations … one boy and one girl. So, in that context, if you say you’re a woman then you’re assumed to be purporting the fact that your birth certificate has the word "girl" on it … and that it’s OK for you to marry someone whose birth certificate says "boy". The offence in doing otherwise would appear to be in making a false statement about what’s on the piece of paper rather than what your sex is.
Yet what happens if the national identity card catches on and becomes the prime means for adult identification … to an extent far beyond that in which a passport is sometimes an acceptable substitute at the moment?
Will future registrars ask to see your card in place of your birth certificate? Almost certainly. And does an obliging and ameliorative ’F’ in the appropriate space then mean that a transsexual woman is an official woman all of a sudden, or does she carry an implicit obligation to "out" herself and refute her apparent gender status at every turn, just in case she’s otherwise later judged to have committed a fraud? Worse, since one of the alleged advantages of the card is to prevent social security fraud, what becomes of her benefits status? Will the card have to have a concealed code to prevent the benefit computer giving her a woman’s benefits or, once again, does the card promise a quiet change of status in a way that’s hoped not to rouse the ire of the opponents of transsexual integration?
Amelioration? No. Obligation? Nothing changes, does it?
From that point of view, therefore, the identity card has a lot of potential for the transsexual rights debate … if only because it sets the cat among the pigeons so effectively. Anyone wishing to prevent the card’s gender status implication from becoming a social fait accompli will have to come out and make specific provision to prevent it … and that rather flies in the face of the bland assurances they’ve been able to hide behind until now.
What’s that? You think I’m being paranoid and uncharitable? No. Just realistic. A right wing that’s prepared to hold up the card that it’s so keen to promote just because of the european identity it implies, is not above twisting and loading the rules to make sure that an otherwise neat solution to transsexual identity woes is nipped in the bud. Furthermore, as the transsexual citizens of New South Wales will confirm, governments are not above going out of their way to make things deliberately difficult. Transsexual people in that Australian state have been told that although they now have the right to have the words changed on their birth certificates, the change is meaningless elsewhere because the Australian federal government doesn’t recognise the effect in marriage law. In other words "we may have changed your birth certificate to say you were born a girl, but don’t use that in the world to pretend you’re a woman."
We live in a world that appears to take a special delight in the absurd .. and in that respect there’s no denying the conclusion that governments lead the field.
Christine Burns
August 1996