Legal recognition: the start of the next phase
We don’t know the details … and there’s a long way to go
Saturday 22nd July 2000
This morning, UKPFC-NEWS carried reports from both The Times and The Daily Telegraph newspapers that the Home Office will next week release a public consultation document on the status of transsexual people. Those reports confirm private indications we had received that such a process was imminent, and on that one point we believe them to be accurate.
However, other details of those reports are no more than speculation. The Home Office remains very tight-lipped about the contents of the forthcoming consultation paper, in accordance with the long-standing convention that these matters are announced first to parliament.
The Daily Telegraph’s report explicitly states that The Home Office would confirm only that a consultation was imminent. While it is probably a fair guess that the proposals do indeed provide for some mechanism to allow change of birth certificates and the right to marry, that can at this time be no more than an educated guess. We will not know even the outlines of what is proposed, never mind any of the crucial details, until the consultation paper is actually published.
In the meantime, there will no doubt be further media speculation on the report’s contents. Please treat all such coverage with great caution. The Times, for example, even gets it wrong on matters of long-standing fact. Contrary to what The Times implies, there is at present no legal barrier to trans people becoming adoptive parents (although we could only do so as single parents), and the suggestion that the test case on employment rights was last year is also wrong: the crucial PvS case was of course decided in 1996. When there are errors in such easily-checked facts, the credibility of the rest of the article is a little in doubt.
There is not much point in us joining in the speculation at this stage. When the consultation paper is published, we can examine it thoroughly and check carefully whether the detailed proposals would actually protect all trans people. This is a good time to re-read Press For Change’s Five Principles, which we produced three years ago for exactly this purpose of asessing legislative proposals … but until we know what is actually proposed, it’s far too early to draw any conclusions.
When the consultation paper is published, please check the small print before you believe the headlines. Press for Change’s legal experts will be examining it closely, and we’ll publish that analysis as soon it is ready … but please don’t believe all you read in the newspapers.
The news reports will be based on analysis by journalists who do not have in-depth knowledge of the issues, and informed by summaries and briefings which may not tell the whole picture. Please, treat the media coverage with great caution: you’ve already seen today how misleading it can be.
The legal issues are complex, and the details of who will be included, under what terms, are crucial. Until we’ve checked those details, please be very cautious about making any judgement as to how far the government’s proposals will really meet our needs.
The other crucial thing for everyone to remember now is that none of us will be setting out soon to collect our revised birth certificates. There is still a very long way to go before our most important campaign goals become a reality, and that process may take several more years.
Remember how long it has taken us to get this far. It’s more than eight years since Press For Change was founded. It took another four years before the then conservative government started to look at how it might set up a formal examination of proposals for change — see the leaked 1996 Cabinet Office report.
The incoming Labour government in 1997 took nearly two years before it was ready to set up the working group which reported to ministers at Easter this year. It has taken them a further three months to digest that report and proceed to a public consultation.
That consultation process will, we hope, lead to a set of more definitive proposals for change … but again, this will take time. We hope that some of those changes can be implemented without the need for primary legislation (in other words an Act of Parliament) … but even if some changes can be made by regulations or by a change in administrative procedure, others may require ministers to table a Bill before parliament.
Bills take time. They have to be drafted by lawyers, and checked endlessly; and then government business managers have to make space in the busy Parliamentary timetable for them to be debated. Then, if they are passed, they take time to come into effect.
So anyone expecting an instant change will be disappointed. This is a long process, with several phases … and we are still, at best, only half way through it.
We know, as does the government, that when the Human Rights Act comes into force in October, it will make the present situation untenable. If the government does not act, then we are very confident that before long the courts will require them to grant us the rights available in the rest of Europe.
I firmly believe that this government does intend to change the law rather than be humiliatingly forced into doing so by the courts. But even though it only took a few thousand words of court judgment for Justice Ormrod to deprive of our rights one afternoon thirty years ago, the process of restoring them takes longer.
The test of the government’s sincerity is not whether it delivers change instantaneously: sadly, that is not how these things work. There will be further periods when not much seems to be happening, and some of the further phases of change will appear to many of us to be rather drawn out.
Our job over the coming months, and over the next few years is not to demand an instant solution … but rather to press the government to continue the work now underway of putting in place a legally secure and inclusive settlement which will make us the last generation of trans people in the UK to be legal non-persons.
Some of that work will be public and visible, and some of it will take place behind closed doors. But wherever it takes place, it is important for us that it is done thoroughly, and that the UK does not repeat the mistakes made by other countries, where the legislation has included terms and conditions which unfairly prevent some trans people from escaping the legal nightmare, or where the mechanisms for change of status are intrusive and cumbersome.
Remember too, that this government has taken a hammering from some quarters for its legislation to improve the status of gay and lesbian people. It obviously has to consider the possibility that legislating for our rights may provoke similar attacks, so as it moves towards change it may not always find it appropriate to speak our language. If you read next week about governmental “caution” and “safeguards”, remember who those words are aimed at — not at us, but at those who would use the prospect of rights for us as a weapon to attack the government.
So don’t pay too much attention to the mood-music coming out of Whitehall: look instead at the details of the proposals, see how they would actually affect us … and remember the constraints faced by ministers in how they present them. They have to cover their backs … and it is in our interests that they protect themselves effectively rather than be deterred by a hostile reaction.
We’ve worked with the government to help them get it right, and we will have to continue to do so. Our job is far from done.
Claire McNab
(Vice-President, Press for Change)
