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.

Getty
Show Hide image

"The land of Gandhi can never be racist": is India in denial about its attitude to skin colour?

“If we were indeed racist, why would we live with the South Indians?" was how one politician addressed the debate. 

When we were kids, my younger brother and I would spend much of our time thinking up new and innovative ways to get under each other’s skin, as siblings often do. One of the most reliable weapons in my brother’s arsenal was a taunt about skin colour - he was quite fair even by Punjabi standards, a fact that he was inordinately proud of. I on the other hand, had a permanent tan. This is now politely referred to as a "dusky" complexion, but back then was just "kaala" (black).

Being older, I generally had the upper hand in this cold war of insults and condescension, but my brother employed this particular tactic to great success for a couple of years. Because it rankled, it really did. No amount of explanation about melanin and sun exposure, or the fact that we were both "brown" in the eyes of the world made a difference. He was fair, I was not, and that was that. We didn’t have the context or the vocabulary to articulate why that minor difference in skin tone was important, but we knew instinctively that it was. It took us years to realise how problematic these little exchanges were. By then, we had  recognised how racism and prejudice about skin colour had wormed its way into our psyches at a young age, even growing up in a fairly liberal household. We laugh about it now, and my brother is more than a little embarrassed about that short phase during his pre-adolescent years. But as recent events have reminded us, for many people in India, racism and colourism is no laughing matter.

Two weeks ago, a video posted on Facebook by the African Students Association of India (AASI) went viral. It showed a mob of 40-odd Indians armed with snooker cues, dustbins and chairs brutally assaulting two Nigerian students inside a mall in Greater Noida, a city in the northern state of Uttar Pradesh, just 40km from the national capital, and home to hundreds of students from Africa who study in the city’s many private colleges and universities. This was part of a wave of violence unleashed by residents of the city that saw at least four Nigerian students admitted to the hospital with serious injuries, and countless others being treated for minor injuries. The details of what transpired over that week are as familiar as they are sordid - a missing Indian student, who was later found, and died in the hospital of a suspected drug overdose. Rumours of Africans being "cannibals", a new addition to the long, long list of racist stereotypes about black Africans that are bandied about to justify such violence. Demands that all African residents of the area be kicked out. And eventually, inevitably, mob violence.

The response by the government and the police followed the general SOP for when such attacks happen - and they do, with alarming frequency. There were promises of swift action (which rarely materialises), brazen denials that the violence was motivated by racism or xenophobia (“Criminal not racial” is how External Affairs Minister Sushma Swaraj described one attack in 2016) and victim-blaming (“Africans are involved in drug-dealing, Africans don’t assimilate”).

Then there is the Gandhi factor. “India is the land of Gandhi and Buddha…we can never have a racist mindset,” declared a pompous Swaraj, conveniently ignoring the fact that Gandhi himself was a proponent of anti-blackness in his early years, separating the South African Indian community’s struggle for freedom from that of the Zulus and writing that “about the mixing of the Kaffirs (blacks) with the Indians, I must confess I feel most strongly.” The truth is that, despite three centuries of experiencing racial discrimination at the hands of British colonisers, India’s unrequited love affair with whiteness has remained undimmed. We - specifically the North Indians who dominate so much of our national political and cultural discourse - take pride in our "Aryan" heritage, thereby aligning ourselves with global white hegemony. We have internalised the pseudo-scientific European racial theories that were in vogue in the 19th and early 20th century, but have lingered on in our school textbooks long after they were debunked. Indeed, when black Africans in India talk about being treated like a caged animal in a zoo, it’s hard not to make connections with 19th century Europe’s infamous "human zoos".

But while much of India's anti-blackness can be traced back to a colonial hangover, it is also fuelled by our own indigenous strain of "colourism", one that predates European theories of racial superiority. Last week, former Bharatiya Janata Party MP Tarun Vijay went on an Al Jazeera programme to talk about the recent spate of attacks. “If we were indeed racist, why would all the entire south – you know Kerala, Tamil, Andhra, Karnataka – why do we live with them?,” he said. “We have blacks…black people around us.” In his attempt to defend India from charges of anti-blackness, Vijay inadvertently laid bare the full extent of India’s problem with skin colour-based bigotry - our othering of not just black Africans but also of the darker-skinned citizens from our own country. It’s not hard to guess who the "we" in that statement is - the fairer, upper caste North Indian Hindus that form the BJP’s core constituency, and who have for ages thought of themselves as the template for the "true Indian". Everyone else, whether it’s Dalits and lower caste citizens from across the country, or the Dravidian residents of the southern parts of the country (both associated, though not entirely accurately, with darker skin colour), are merely tolerated. These two strains of bigotry - race and caste - combine to create a society where darkness is, at best, treated as a personal failing, something that you must strive to overcome. At its worst, it leads to dehumanisation and, eventually, violence.

Much of the blame for the persistence of such toxic attitudes towards skin colour rest with India’s pop culture and mass media industries. Bollywood, as always, has been a pioneer. For decades, people of darker skin colour have been pushed to the margins, relegated to the role of caricature or villain. Take for example the still iconic song from the 1965 film Gumnaam, in which comedian Mehmood tries to win the attention of Anglo-Indian actress Helen. “Hum kaale hue to kya hua dilwale hain (so what if I’m black, I still love you),” he sings, reinforcing the improbability of a beautiful (read fair-skinned) woman like Helen falling in love with a dark-skinned man. More recently, there was the 2008 film Fashion, in which Priyanka Chopra plays a model whose descent into drugs and depravity finally hits rock bottom when she wakes up one morning next to a black man. There’s also a long history of Indian films featuring "blackface" and racist stereotypes of black Africans, best exemplified by a horrifying scene from 2000 film Hadh Kar Di Aapne, in which… actually, just watch it yourself because I can’t figure out a way to put it into words without throwing my laptop out the window.

Indian television is no different, with dark-skinned actors - especially women - so rarely seen on programmes or advertising, that any advertisement that dares to break the norm is celebrated as groundbreakingly progressive. And then there’s the fairness cream industry, endorsed by a host of top film and television celebrities, with advertisements that inextricably link fairness not just to beauty but also to employability, self-confidence and suitability for marriage. Just take a look at this epic five part tele-commercial by Ponds, appropriately titled White Beauty. The focus on whiteness is relentless, and this colourism runs rampant even as Indian movies and television borrow and steal from black culture at will, even bringing in rap artists like Snoop Dogg and T-Pain to perform on Bollywood songs. It’s another thing that Snoop Dogg - or anyone with the same skin colour - has as much chance of playing the lead in Bollywood as I have of becoming Potus.

In recent years, as Indians outrage about racist attacks against non-resident Indians (NRIs) in the US and Europe and get involved in global conversations about racism and cultural appropriation, many of us have also started turning a spotlight on racism back home. The fairness cream industry is facing increasing criticism, even from high profile actors like Abhay Deol who would otherwise earn big money by appearing in their ads. Explicit racism in film and in advertising no longer goes unchallenged. When former Miss World and current Bollywood royalty Aishwarya Rai appeared in a print ad for a jewellery brand that alluded to 17th century European paintings of noblewomen, complete with emaciated black child servant holding up a red parasol, she was met with a barrage of criticism and outrage that forced the company to withdraw the ad. But as last month’s attacks make clear, this is not nearly enough.

First, the Indian government and our political class needs to acknowledge that racism and anti-blackness are a real problem, instead of trying to brush it under the carpet. Step one would be to bring in a long overdue law against racial discrimination. But as the persistence of caste despite the legal abolition of caste distinctions 70 year ago shows, having laws on the books is not enough. We need massive programmes to sensitise police, bureaucrats and the public at large about the toxic effects of racism and how to counter it. Racist stereotypes in media and public discourse should be shut down, not tolerated or even reproduced by political leaders as they are now. Anti-racist and anti-caste discourse should be an integral part of the school curriculum. Celebrities, activists and civil society needs to be much more vocal in their critique of racist and colourist speech and actions. There are more than enough policy prescriptions out there, if we can find the political will to put them into action. And we must find it soon. Or our kids will continue to grow up with the notion that social worth is tied to where you are on the Fitzpatrick scale, they will continue to weaponise skin colour in schools and in playgrounds. And for those of us with darker skin, whether black Africans or "black" Indians, the possibility of sudden, explosive violence will always lurk around the corner.

Bhanuj Kappal is a freelance journalist based in Mumbai. 

0800 7318496