Gender and consent: trans is not a deception

Conservatives have made their peace with gay marriage, but trans issues remain beyond their grasp.

This month, right-wing Italian MP and Berlusconi groupie Michaela Biancofiore hit the headlines with a ministerial career that was short, even by Italian standards. Appointed on a Friday, critics took instant exception to a junior equalities minister who opposed gay marriage, refused to make physical contact with a lesbian and suggested that “anyone who goes with a trans has serious issues of sexual identity”.

A spirited rearguard action, in which she accused “gays” of “ghettoising themselves”, only confirmed her unsuitability. She was dismissed in time for the Sunday breakfast news.

That, of course, is Italy and nothing like the UK, where a right-of-centre administration is presently preening itself on its recent equalities achievements. On Wednesday morning, the LGB community was, mostly, celebrating the fact that gay marriage – Lords permitting – was now several steps closer to reality. A few diehards, Peter Tatchell amongst them, bemoaned the fact that civil partnership had not been opened up to all. Mostly the mood was positive.

Not so in the trans community, which sat and watched in utter despair as junior equalities minister Helen Grant swatted away amendments designed to sort out problems facing trans individuals in, or seeking to be in, a state-sanctioned married relationship.

Historically, the gender-reassigned trans person has faced three serious obstacles to a happy married life. To begin with, if already married, the holy grail of a gender recognition certificate (GRC) – which adjusts birth certificate to an individual’s actual gender identity – was beyond their reach. Divorce first – and then jump through a series of bureaucratic hurdles to “prove” to a disbelieving state that one really, really is the gender one claims.

That has proven heart-breaking for many. Hold on to a marriage into which you have invested a great deal of love and life: or let go, possibly replacing it with a civil partnership. Except there has always been a second obstacle, which is that “survivor’s benefits” – the bit of pension that a spouse would get if they survived you into old age – would be counted only from the date of the NEW civil partnership. Potentially, that single piece of paper could cost your partner tens of thousands of pounds in pension.

Thankfully, that particular iniquity is gone. You may now continue in your marriage, which will seamlessly translate from opposite to same sex on acquisition of the GRC. Before obtaining your GRC, however, you must show that your partner actively consents to it. Not that they are aware, or have been informed: but that they consent. This is a seriously odd requirement, seeing as how their consent has not previously been required for other changes, including name, hormones, or surgery. Or even a second mortgage on the home!

Its been a while since one partner to a marriage was required to ask their spouse’s permission for significant decisions: decades since women were forced, humiliatingly, to go cap in hand to husband for such permission. Basic equality, it seems, is not for the trans spouse.

Meanwhile, the government has held on to an even stranger anomaly. It's offensive, and, in conjunction with other recent legal developments may yet end up killing someone. No matter!

A marriage is voidable on the grounds that either party did not validly consent to it, “whether in consequence of duress, mistake, unsoundness of mind or otherwise”. That’s fair, and covers most eventualities – including the possibility that one party was trans and had not mentioned that fact to the other.

Should they? In practice, that’s an issue that rarely arises. In a close relationship, gender history, along with fertility, religion and views on having children is discussed, is disclosed. Times, however, are changing. Some men, some women of trans history are now transitioning very early. They assert their gender as young as five or six, will never undergo a puberty reflecting their birth gender: by the time they are “of marriageable age”, they will have spent three-quarters of their life living the gender they understand themselves to be.

Should they really be obliged, by law, to disclose? Particularly when no similar obligation is imposed on those who just happen not to have mentioned a past that includes any number of crimes – from child abuse to rape to murder.

Definitely odd. Doubly odd, that marriage law should contain a special clause identifying just one ground for voiding a marriage, over and above any other possible ground. Can you guess? Yes: its non-disclosure of a GRC. And while that might have made sense in an era when same sex marriage was verboten, once this new legislation passes, it ceases to.

Could this get people killed? Not exactly: but it sits uneasily alongside recent police and CPS decisions to prosecute trans persons for not disclosing birth gender when it comes to having intimate relations. Let’s remind ourselves of the fundamental message here: it is OK not to disclose past criminal status.

Every attempt to force sex offenders and perpetrators of domestic violence to reveal themselves to prospective partners is dogged with squeals from the civil liberties lobby. How could you possibly insist? Do you not trust men?

No comment.

I observe only that an establishment that keeps putting gender history over and above every other issue when it comes to validating intimate consent is sending a message loud and clear: that trans is a form of deception; and deception must be controlled and ultimately punished.

And while junior equalities minister, Helen Grant came nowhere close to the odiousness of Biancofiore in her response to the Commons this week, her failure to understand, her failure to get to grips with current policy suggests a deeper truth: that while Conservatives may have made their peace with the gay community, the world of T remains, for now, a step too far, just a little too “icky” for personal comfort.

A pro-gay marriage demonstration in Trafalgar Square. Photograph: Getty Images

Jane Fae is a feminist writer. She tweets as @JaneFae.

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Commons Confidential: When Corbyn met Obama

The Labour leader chatted socialism with the leader of the free world.

Child labour isn’t often a subject for small talk, and yet it proved an ice-breaker when Jeremy Corbyn met Barack Obama. The Labour leader presented the US president with a copy of What Would Keir Hardie Say? edited by Pauline Bryan and including a chapter penned by Comrade Corbyn himself.

The pair, I’m informed by a reliable snout, began their encounter by discussing exploitation and how Hardie started work at the tender age of seven, only to be toiling in a coal mine three years later.

The book explores Hardie’s relevance today. Boris Johnson will no doubt sniff a socialist conspiracy when he learns that the president knew, or at least appeared to know, far more about Hardie and the British left than many MPs, Labour as well as Tory.

***

Make what you will of the following comment by a very senior Tory. During a private conversation with a Labour MP on the same select committee, this prominent Conservative, upon spotting Chuka Umunna, observed: “We were very relieved when he pulled out of your leadership race. Very capable. We feared him.” He then, in
a reference to Sajid Javid, went on: “We’ve got one of them.” What could he mean? I hope it’s that both are young, bald and ambitious . . .

***

To Wales, where talk is emerging of who will succeed Carwyn Jones as First Minister and Welsh Labour leader. Jones hasn’t announced plans to quit the posts he has occupied since 2009, but that isn’t dampening speculation. The expectation is that he won’t serve a full term, should Labour remain in power after 5 May, either as a minority administration or in coalition in the Senedd.

Names being kicked about include two potential newcomers: the former MEP Eluned Morgan, now a baroness in the House of Cronies, and the Kevin Whately lookalike Huw Irranca-Davies, swapping his Westminster seat, Ogmore, for a place in the Welsh Assembly. Neither, muttered my informant, is standing to make up the numbers.

***

No 10’s spinner-in-chief Craig “Crazy Olive” Oliver’s decision to place Barack Obama’s call for Britain to remain in Europe in the Daily Telegraph reflected, whispered my source, Downing Street’s hope that the Torygraph’s big-business advertisers and readers will keep away from the rest of the Tory press.

The PM has given up on the Europhobic Sun and Daily Mail. Both papers enjoy chucking their weight about, yet fear the implications for their editorial clout should they wind up on the losing side if the country votes to remain on 23 June.

***

Asked if that Eurofan, Tony Blair, will play a prominent role in the referendum campaign, a senior Remainer replied: “No, he’s toxic. But with all that money, he could easily afford to bankroll it.”

Kevin Maguire is Associate Editor (Politics) on the Daily Mirror and author of our Commons Confidential column on the high politics and low life in Westminster. An award-winning journalist, he is in frequent demand on television and radio and co-authored a book on great parliamentary scandals. He was formerly Chief Reporter on the Guardian and Labour Correspondent on the Daily Telegraph.

This article first appeared in the 28 April 2016 issue of the New Statesman, The new fascism