101 Unequal ways to try to treat you equally
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101 Unequal Ways to Try to Treat You Equally
Sunday 30th July 2000
The Group identified no areas where a transsexual person might be granted recognition in their acquired gender, in the absence of full legal recognition, without leading to confusion and uncertainty
Report of the Interdepartmental Working Group on Transsexual People, Home Office Constitutional and Community Policy Directorate, London, April 2000
Back in the 1950’s, when ugly gaps in the rows of houses were still quite fresh reminders of the Second World War, when the baker still appeared daily on our doorstep with a wicker basket laden with fresh loaves, and before an unbearably smug Prime Minister sought to tell us that we had never had it so good, I can clearly remember that the man next door had a spot of bother with his bicycle.
In fact, it wasn’t so much a “spot” of bother, but a full blown degenerative condition. He kept getting punctures.
Time and time again I would see him in the next door back garden from my bedroom window, sat on an orange box, working the inner tube of his rear tyre through a bucket of water, in search of the latest air leak. As time went by, and the inner tube began to resemble a patchwork quilt, he seemed to spend more and more of his time in this pursuit, and walking the crippled bicycle home from work. Much less time riding it.
The problem, of course, was that he never got to the root of the problem. Something on the inside of the bicycle’s rear rim was rubbing the inner tube as he rode. No sooner had he repaired the damage than the same thing would happen again. Worse still, as patch upon patch of rubber began to cover the once smooth and flexible air cushion, this created new problems in itself. Far from addressing the problem, our hapless neighbour was adding to it. In those far off times, forty years ago, “make do and mend” was still very much a part of our national culture you see. Nevertheless, our neighbour’s problem only finally went away when he bit the bullet and invested in a new wheel.
I’m reminded of our neigbour’s bike this weekend, having spent a couple of days reading and re-reading the government’s long awaited report on the status of trans people in the United Kingdom.
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The report, as most of you will know by now, results from a review undertaken by an Interdepartmental group of Civil Servants, headed by the Home Office and announced to Parliament in April 1999 by the Home Secretary, Jack Straw. That announcement came hard on the heels of new legislation from the Department for Education and Employment (DfEE), extending sections of the Sex Discrimination Act to cover trans people … and literally days before the UK’s most famous fictional trans woman, Coronation Street’s “Hayley”, became “Mrs Cropper” in a blessing carried out among the tea cups of “Roy’s Rolls” (to the delight of over 18 million Bank Holiday viewers).
The connection between the fictional marriage of “Hayley and Roy” and the Home Secretary’s timing is just conjecture, of course … just as the timing of the announcement to Parliament might have been simply fortuitous too. The working group was announced in a Commons written answer as news was breaking that UN planes had accidentally bombed a civilian train in Bosnia, whilst trying to knock out the bridge it was crossing. By a chilling coincidence, the final report of the working group (15 months later) was also announced as the media last week revelled in a surfeit of stories to occupy their minds … leaks of Prime Ministerial letters, announcements on National Health Service plans, other new government papers on reforms relating to gay “crimes” and, of course, the tragic crash of the Air France Concorde taking German holidaymakers to New York to begin a cruise. It has been a busy week for the UK’s media, as Parliament rises for the summer holidays, so trans people are the last thing on their minds at the moment.
The last year or so, between those announcements, has been unprecedentedly busy for Press for Change and its’ associates though.
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First, as we took in the news that twelve government departments were to “look into” the issues surrounding transsexual people’s lives we could only speculate on the outcome, and direct our efforts to ensuring that we were properly consulted in the process. In fact it took till June 1999 before we were invited to make written submissions (see Recognising the Identity and Rights of Trans People), and then late into the Autumn before we were able to arrange for the committee’s then chair to come along and meet some of us on “neutral territory”, so to speak, during a Parliamentary Forum meeting in a Palace of Westminster meeting room. The result of that first warm and constructive meeting was that, shortly afterwards, in early January this year, we were all invited to a meeting at the Home Office, during which we met the whole working party, and Stephen Whittle delivered the joint presentation which you can read online: Meeting the needs of transsexual people. At the end of that meeting the chair then invited us to present further papers on issues which the working group felt they most needed help to address, and again you can read those documents online: The Problems of Gender Re-Registration … after they were delivered in February of this year.
(There is a complete index to the whole process and all the submissions produced in our special section on the Working Group.)
Taking all three sets of submission opportunities together, in fact, we delivered well in excess of one hundred thousand words of text to the committee and the authors performed some truly astonishing work, drafting and agreeing complex submissions within punishing deadlines that civil servants themselves would never put up with. The reward, however, is that well over half of the newly published 67 page report of the Working Group consists of annexes which we provided. In publishing its’ own observations and conclusions, the officials representing those twelve government departments have not only quoted our advice extensively, but also presented the whole text of our last two submissions alongside! And the two halves of the document are in very close accord.
In fact, not only do we seem to be in astonishingly close agreement in most areas, but the report’s authors, and the ministers approving the report for publication, also seem to have given us a tremendous amount of rope with which to hang the government and force it now to the final act in this saga of over thirty years.
Chapter One
The report starts, in chapter one, by summarising what is known about transsexualism as a medical condition, its’ incidence, what trans people are seeking and the options which the working group identified … which are to do nothing, to issue corrected birth certificates without legal recognition, and to go the whole way and achieve full legal recognition too. These options are not a lot different, in fact, from those identified in a leaked Cabinet Office paper under the previous Conservative legislation in 1996 … in which the working group’s chair was very much involved.
On minor matters of detail, the report reveals that (as we suspected) the government has no better idea than anyone else as to the numbers of trans people … although we agree on the studies showing the incidence of trans women at between 1 in 11,900 (Dutch evidence) and 1 in 12,400 (more recent Scots findings). Where we use those figures across the whole population, the working group has applied them to registered males over fifteen and, where we take the ratio of trans women to men at something between 2:1 and parity, the civil servants take a more conservative estimate and arrive at a number smaller than the membership of the FtM Network. The working group’s own overall estimates therefore put Press for Change’s 2000+ membership at over 80% of the UK’s trans population … which would be a comforting thought if it were true … but we continue to believe that a reasonable projection of our coverage, and other evidence, puts the UK’s trans population at closer to 5,000. The important thing, however, is that we agreed on the order of magnitude … which is more than the press can!
The more disturbing statistic, revealed on the report’s first page, is that whilst Charing Cross alone took on 470 new cases last year (and have 1000 active patients overall), the most recent data available (1997/98) showed only 48 NHS surgeries, compared to 104 in the private sector in the same period. If ever there were need for evidence of the problems faced by trans people in medicine, therefore, it is there in black and white. Even with their own money funding two thirds of the operations, less than a third of the entrants to the system are coming out the other end. It would take over ten years to treat the patients on Charing Cross’s books alone, and by the report’s own admission, almost half of the government’s estimated 2,400 trans people are presumably waiting to complete treatment at this time. Perhaps, in the circumstances, the authors would PREFER to use our larger estimate of the population! The figures might, at least, look marginally less scandalous.
Moving on, however … the next three chapters are where the real meat is to be found.
Chapter Two
In chapter two the authors of the report explain the present position as it applies to trans people in every area of life that the twelve departments are responsible for. In essence, this is what would be faced by trans people if the government opted to “do nothing”.
It’s a pretty comprehensive list … so far the only omission we’ve spotted has been the procedures for the registration of death (of or by a trans person). Some of the issues covered even took some of us by surprise and really emphasise the complexity and uncertainty faced by both trans people and the hapless officials trying to look for guidance on how to treat them.
The issues boil down to four main categories:
- Matters which are not governed by any gender-related differences at all, and which are therefore non-issues for trans people. Some of these are not always that obvious.
- Matters which hinge on the legal definition of an individual’s sex … where the report demonstrates a spectrum of consequences, ranging from clear discrimination against trans people (thus requiring personal disclosure to avoid fraud), through an amazing array of fudges (especially in the area of social security and pensions), to a few actual solutions (but which, again, require disclosure to obtain them!).
- Grace and favour solutions, based on education, goodwill and a large dose of hope. The report’s authors resort to conjecture on the matter of toilet use (in the absence of any case law or statute), and the word “probably” turns up too often for comfort in many places … underlining the real uncertainty in which trans people daily have to conduct their lives.
- Instances where access to equal treatment relies on the ability for a couple’s relationship to be regarded as a marriage … whether celebrated or not. These disadvantages are shared by all whose relationships are viewed legally as “same sex” but are perhaps the most ironic when experienced by trans couples in what, to their neighbours, appear to be heterosexual partnerships. The report highlights that in some cases you don’t need to be married to qualify for provisions intended to benefit people “Living together as Husband and Wife” … merely able to demonstrate that you could be married if you wanted … and in that respect “gay” or “lesbian” trans couples appear to be caught in a unique double bind.
What this chapter comprehensively demonstrates, therefore, is that there is no way in which an ordinary citizen (whether trans or not) can tell what they should be able to expect from society in a wide range of situations, ranging from applying for child support to pensions, and from Police searches to victim support. The vice presidents of Press for Change, with over a hundred years of experience between us, would not be able to give you all the answers painstakingly researched by the officials … even they are not sure in places … so what chance does an ordinary trans person have?
And this woeful evidence is actually quite handy for us, for it demonstrates in clear and damning fashion just why the government cannot rely on leaving things as they are. This is the rope with which we will hang them over and over in court unless something is done quickly.
We couldn’t want for a better and more “official” piece of evidence.
Chapter Three
Chapter three, whilst quite short, is even more damning however, for the working party set out to explore ways in which the privacy issues might be “fudged”, by issuing some sort of replacement birth certificate without legal recognition (and hence the ability to marry) … and they conclude, in short order, that this just couldn’t work!
As the authors put it in paragraph 3.8:
“… we have not been able to identify any areas in which recognition could be given without leading to confusion and uncertainty. We were very doubtful whether there could be a half-way house between the present position and full legal recognition for all purposes”
In other words this chapter, and the one before it, show that the government cannot ignore the problems by doing nothing or continuing to fudge ever more complex “fixes” … and they can’t fudge the issue by administrative approaches which fix the privacy issue in the birth certificate without granting legal recognition.
In short, therefore, the only way forwards is COMPLETE LEGAL RECOGNITION.
Chapter Four
Having laid that ground, the report therefore then goes on to consider the mechanics and implications of full legal recognition and, with it, all the things which those who worry about our moral welfare would dearly like to rule out. It isn’t enough that gender reassignment renders trans people sterile, but the worriers would like to demand it as a quid-pro-quo for privacy and rights. It isn’t enough that the majority of trans people are deserted by partners breaking solemn nuptial promises of support, but some would be unhappy unless it is mandatory.
Understandably, although the vast majority of this chapter of the report is actually quite positive, the discussion of these concerns is likely to worry many trans people reading the document without a guide. The papers contained in the annexes to the report provide the detailed answers, of course. Annex 3-1 presents our comprehensive and fair process for two stage registration, 3-2 explains just why sterility requirements are not only unnecessary but impractical, morally reprehensible and doomed to failure in court, and 3-3 the argument for defending existing marriages at all cost, in the face of an otherwise inhumane choice being demanded in return for recognition.
Nowadays, however, the government needs to be able to complete a section to any and every piece of legislation which it presents to Parliament, certifying that it is compliant with the terms of the Human Rights Act. The purpose of this requirement is to kill off wayward provisions before they even reach the statute book, so that citizens don’t have to resort to the cost and distress of taking their government to court over discriminatory provisions. If you can imagine, therefore, an act being signed off which demands compulsory sterilisation if the treatment itself hadn’t secured this then you have too fertile an imagination. And if you can imagine the same applied to a condition requiring the dissolution of a marriage (and all its’ consequences for the non trans partner), then you should get out more.
These are undoubtedly the areas in which the controversy is bound to centre, but the arguments are like the jaws of a vice around the government. It has to act, for chapter two of this report makes that clear. It can’t fudge the issue in ways that sidestep legal recognition … and it can’t apply inhumane conditions as a tariff for legal recognition either.
In short, if there was ever a shred of doubt about our case at the start of this exercise, the government’s 12 man year report puts an end to it.
So where now?
This is not the end of the fight of course, just the completion of a very key phase. With its’ report, the government has drawn a very thick black line over everything that has gone before. It has acknowledged the fact of the transsexual condition and its’ treatment. It has acknowledged the statistics and, in doing so, confirmed the scandal of the current provisions for care. It has mapped out an astonishing hotch potch of official issues confronting trans people, the impossibility of navigating them without a report like this as the guide, and the absurd lengths which some departments have to go to in order to try and treat trans people with some semblance of equality and privacy. It shows, in fact, just how UNEQUALLY the government has to act in order to maintain a semblance of equality and prevent the most blatant of examples going to a rights court. It has shown that the government does not have a viable “do nothing” option, and that there is no such thing as a half-way “ameliorative” option either. It has no choice but to proceed to full legal recognition and the clock is now ticking.
Lastly the government has set the agenda for the discussion, and obligingly points the reader to our human rights arguments explaining why an obsession with the largely academic issue of sterility and the fate of a handful of same sex trans couples is itself a sterile debate. Whilst the arguments over these issues continue, real same sex trans couples will continue forging new gay and lesbian marriages and science will continue presenting society with more and more novel combinations for humans to produce babies, which make the prospect of a trans woman mothering a surrogate’s child, fathered with her frozen sperm, seem almost irrelevant.
The challenge now, however, is to get from this major milestone to the finishing line … which is still likely to take many years of work yet.
A debate has to take place … that is inevitable, even if both the government and ourselves would probably prefer it to be a short and low key one. The press has ignored the working group’s report so far, as it has had far too much to write about elsewhere and will take some time to even begin to understand the contents. There are groups however, as we all know, who won’t simply let it pass unnoticed.
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Once debated, a legislative mechanism has to be found. Given the pressures on government time, the most likely vehicle for this will probably be a private members’ bill, like the Alex Carlile attempt in early 1996 but, in this case, with far more tacit support from all sides, and with a position far closer to the top of the ballot, allowing more time and attention for it to be debated and move on to committee. Our submissions already provide a comprehensive script for writing such a bill though (in particular, the content of our original document, last Autumn).
The committee stage is where we once again have a chance to influence the final form of a bill before it returns to the house for a second reading. And then, of course, there are the Lords.
This is just ONE scenario for how the changes outlined by the government’s report could be enacted, but whatever the case it means that in the months ahead we have no less work to do than before … educating MP’s further, finding possible bill sponsors, winning those last arguments over detail.
It is a huge undertaking. Please do not underestimate it. You will not see the end tomorrow, but you might see it by the end of the NEXT administration. Nevertheless a big corner has been turned. The nature of our campaigning will never be the same again. Now we are working towards a goal which is essentially agreed. The light at the end of the tunnel is not only visible, but we can also now assure you that it is NOT the light of an oncoming train!
In the meantime there is a “peace dividend” too. The report identifies areas in which we can work to improve trans people’s lives in all sorts of areas which don’t require legislation, but merely education … and let us never forget that the issues surrounding trans people’e lives are only partly accounted for by legal status. Twenty five years after the Sex Discrimination and Equal Pay Acts, women are still discriminated against and paid less than men. All the law does is to make such behaviour illegal and to signal what society expects. It is the same with the Race Relations Act, Disability Discrimination Act and just about every other piece of social legislation you care to pick too. Ironically, an Act granting legal recognition to trans people may be more effective, as it will make it easier for a proportion of trans people to disappear. For those who won’t ever disappear, however, our work must always involve more than just the law.
So celebrate the publication of this report. It really is a groundbreaking achievement. It is something that we can all be proud of, and which paves the way to the end of a campaign that has already taken us eight years of painstaking work. But don’t expect the next part tomorrow or without a struggle … and don’t place too much store by the acheivement of legal recognition alone. The earth definitely moved this week though.
Christine Burns
(Vice-President, Press for Change)