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.

Show Hide image

What’s the secret of the world’s best-paid sports manager? Ask the Chicago Cubs

Theo Epstein is a star because he values the person as much as the player.

As I write, the Chicago Cubs, perennial underachievers, are three wins away from reaching baseball’s World Series for the first time since 1945. By the time you read this they may have crashed out. Besides, baseball – like cricket – is a language that asks a lot of its translators. So, in writing about the Cubs, I’ll skip the baseball bits. Fortunately, the lessons of the Cubs’ success (they were the outstanding team of 2016, even if they don’t win the World Series) transcend baseball.

To understand the future of sport – and perhaps employment – I recommend a pair of profiles of Theo Epstein, the president of baseball operations for the Cubs, one published in the New York Times and the other written by David Axelrod (Barack Obama’s strategist) for the New Yorker.

Epstein, 42, has just agreed a contract extension worth $50m over five years, making him the highest-paid non-player in professional sport. There is plenty in the profiles on his whizzy use of data analytics; his algorithmic tests that measure players’ co-ordination (essentially using neuroscience to measure talent); as well as the Cubs’ coaching programme dedicated to mental health and managing stress. Most timely and important of all is Epstein’s emphasis on character. He talks about “scouting the person more than the player”. He wants the right kind of people on the field.

“In the draft room [where the team decides which players to sign], we will always spend more than half the time talking about the person rather than the player,” he has said. “We ask our scouts to provide three detailed examples of how these young players faced adversity on the field and responded to it, and three examples of how they faced adversity off the field.”

Epstein is well known for empowering a “geek department” inside his baseball teams. Yet instead of perceiving a conflict between science and the human realm, he sees the two as part of the same big picture. He craves players with character who can benefit from the insights of science.

“Character” is a vexed subject inside sport. It sets off uncomfortable associations. Talking too much about character – building it, or even just valuing it – sounds dangerously close to endorsing an amateur ethos. Victorian public schools often celebrated sport explicitly in opposition to intelligence, even achievement. H H Almond, the headmaster of Loretto from 1862, got an A for candour (if nothing else) when he ranked his school’s priorities: “First – Character. Second – Physique. Third – Intelligence.”

The Victorian notion of games cast a long shadow over sport and society in the 20th century. The first phase of ultra-professionalism, in the office as well as on the sports field, was a reaction to Almond’s set of values. The concept of character was recast as a consolation prize, doled out to the class dunce or the twelfth man. Crucially, reformers and nostalgics alike bought in to the historical perception of a separation or conflict between character, intellectual life and sporting achievement.

The Cubs, however, know better. To adapt Almond’s clumsy saying: intelligence and physical skills derive, significantly though not entirely, from character. Character is now being understood not as the destination, but the foundation, even the process.

This is an overdue reassessment. In the loosest terms, I would identify three phases in the development of professional sport. Phase one optimised the body. Sadly, though we are still inching forward, the human body is now reaching the outer wall of virtuosity. All sports will tail off in speed of progress, in terms of pure physicality.

Phase two of modern sport turned to psychology. Realising how hard it is to gain an edge through physical conditioning, everyone suddenly started talking about the mind: the inner game of this, the mental game of that. However, reconfiguring the mental approach of elite athletes – already in their twenties and thirties, with deeply ingrained habits and highly evolved psychological software – is also exceptionally difficult. That is why many top athletes recoil from conventional “sports psychology”; the discipline is oversold and under-sceptical.

We are now entering phase three: the whole person. Sustained high achievement relies on something much deeper than a few sessions with a sports psychologist. So you need the right people in the room.

Coaches in future will be numerate and intellectually unthreatened by the scientific advances that illuminate sport. But the best coaches will never lose sight of a parallel truth: that although science can help us to understand what happens on the sports field, and sometimes how to do it better, it cannot conveniently convert athletes into inert particles, as though it were a ­physical science. Coaching can benefit from ­science but remains an art – one that revolves around understanding and helping people.

In most sports, players and coaches are really in the business of decision-making. The winning team, as Pep Guardiola says, makes more good decisions. Sport, in other words, advances when it trains people to make better decisions. There are now highly evolved analytical techniques for understanding how those decisions influence results. However, the athletes themselves are still people, imperfect and imperfectible. If you want machines, you get dummies.

This month, I was asked to found a new institute of advanced sports studies at the University of Buckingham. The mission is to create undergraduate and postgraduate courses that attend to the entire mindset – critical thinking, ethics and leadership, as well as data analytics and sports science: a kind of “PPE of sport”. After a misleading triple fissure – character, body, mind – sport is starting to put the pieces back together again. That’s why, this month, I’m rooting for Epstein’s Cubs.

Ed Smith is a journalist and author, most recently of Luck. He is a former professional cricketer and played for both Middlesex and England.

This article first appeared in the 20 October 2016 issue of the New Statesman, Brothers in blood