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.

Photo: Getty
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This is no time for civility towards Republicans – even John McCain

Appeals for compassion towards the cancer-stricken senator downplay the damage he and his party are doing on healthcare.

If it passes, the Republican health care bill currently being debated in the Senate will kill people. Over the past few months, the party has made several attempts to repeal and replace the Affordable Care Act passed under Obama, all of which share one key feature: they leave millions more people without healthcare.

Data indicates that every year, one in every 830 Americans who lack healthcare insurance will die unnecessarily. A report by the Congressional Budget Office suggests that the newest “skinny repeal” plan will leave an extra 16 million individuals uninsured. That’s an estimated annual body count of 19,277. Many more will be forced to live with treatable painful, chronic and debilitating conditions. Some will develop preventable but permanent disabilities and disfigurements - losing their sight, hearing or use of limbs.

This is upsetting to think about as an observer - thousands of miles across the Atlantic, in a country that has had universal, free at the point of delivery healthcare for almost seven decades. It is monstrously, unfathomably traumatic if you’re one of the millions of Americans who stand to be affected. If you’ve got loved ones who stand to be affected. If you’ve got an ongoing health condition and have no idea how you’ll afford treatment if this bill passes.

I’ve got friends who’re in this situation. They’re petrified, furious and increasingly exhausted. This process has been going on for months. Repeatedly, people have been forced to phone their elected representatives and beg for their lives. There is absolutely no ambiguity about consequences of the legislation. Every senator who supports the health care bill does so in the knowledge it will cost tens of thousands of lives - and having taken calls from its terrified potential victims.

They consider this justifiable because it will enable them to cut taxes for the rich. This might sound like an over simplistic or hyperbolic assertion, but it’s factually true. Past versions of the bill have included tax cuts for healthcare corporations and for individuals with incomes over $200,000 per year, or married couples making over $250,000. The current “skinny repeal” plan has dropped some of these changes, but does remove the employer mandate - which requires medium and large businesses to provide affordable health insurance for 95 per cent full-time employees.

On Tuesday, Senator John McCain took time out from state-funded brain cancer treatment to vote to aid a bill that will deny that same medical care to millions of poorer citizens. In response, ordinary US citizens cursed and insulted him and in some cases wished him dead. This backlash provoked a backlash of its own, with commentators in both the UK and US bemoaning the lack of civility in contemporary discourse. The conflict revealed a fundamental divide in the way we understand politics, cause and effect, and moral culpability.

Over 170 years ago, Engels coined the term “social murder” to describe the process by which societies place poor people in conditions which ensure “they inevitably meet a too early… death”. Morally, it’s hard to see what distinguishes voting to pass a healthcare bill you know will kill tens of thousands from shooting someone and stealing their wallet. The only difference seems to be scale and the number of steps involved. It’s not necessary to wield the weapon yourself to have blood on your hands.

In normal murder cases, few people would even begin to argue that killers deserve to be treated with respect. Most us would avoid lecturing victims’ on politeness and calm, rational debate, and would recognise any anger and hate they feel towards the perpetrator as legitimate emotion. We’d accept the existence of moral rights and wrongs. Even if we feel that two wrongs don’t make a right, we’d understand that when one wrong is vastly more abhorrent and consequential than the other, it should be the focus of our condemnation. Certainly, we wouldn’t pompously insist that a person who willingly took another’s life is “wrong, not evil”.

Knowing the sheer, frantic terror many of my friends in the US are currently experiencing, I’ve found it sickening to watch them be scolded about politeness by individuals with no skin in the game. If it’s not you our your family at risk, it’s far easier to remain cool and detached. Approaching policy debates as an intellectual exercise isn’t evidence of moral superiority - it’s a function of privilege.

Increasingly, I’m coming round to the idea that incivility isn’t merely justifiable, but actively necessary. Senators voted 51-50 in favour of debating a bill that will strip healthcare from millions of people. It’s unpleasant to wish that John McCain was dead—but is it illegitimate to note that, had he been unable to vote, legislation that will kill tens of thousands of others might have been blocked? Crude, visceral language can be a way to force people to acknowledge that this isn’t simply an abstract debate—it’s a matter of life and death.

As Democratic congressman Keith Ellison has argued, merely resisting efforts to cut healthcare isn’t enough. Millions of Americans already lack health insurance and tens of thousands die every year as a result. The Affordable Care Act was a step in the right direction, but the coalition of resistance that has been built to defend it must also push further, for universal coverage. Righteous anger is necessary fuel for that fight.