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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Is Switzerland about to introduce a universal basic income?

A referendum on 5 June, triggered by a 100,000-strong petition, will determine whether the country transforms its welfare state with a monthly no-obligations cash handout available to all.

The Office Cantonal de l’Emploi (OCE), Geneva’s unemployment administration, is what you might expect of a modern bureaucracy. Not exactly Kafka-esque, it moves slowly but rationally: take a ticket, wait your turn, learn which paperwork is missing from your dossier, repeat. Located in a big complex of social administration behind the main train station, the office is busy for a region with an unemployment rate between 5 and 6 per cent, well below the European average. The staff, more like social workers than bureaucrats in dress and demeanour, work hard to reinsert people into the job market: officials can be responsible for over 40 dossiers at a time.

Objectively, Switzerland is a good place to be out of work. For a low-tax country the welfare system is robust. On condition of having worked and paid taxes in the state for over 12 months, a newly-unemployed is assured 70-80 per cent of his previous salary for a period up to 2 years: ample income in a country with some of the highest average wages in the world. In practice, the system is a hybrid between the OCE (which tries to get people back to work) and union-allied social insurance bodies (which take care of monthly payments) and is complex but effective. There are welfare trade-offs – easy firing, expensive healthcare – but Switzerland is far from a free market machine without a safety net.

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It seems strange that such a well-oiled system could soon be obsolete. On 5 June, Switzerland will hold a referendum on an initiative to introduce a universal basic income (UBI): a guaranteed, no-strings-attached, monthly payment of 2,500 Swiss francs (£1,784) for each legal resident. Driven by a popular initiative which collected the requisite 100,000 signatures, the UBI would revamp the welfare state by streamlining its core into this single monthly cash transfer. No more obligations to apply for a certain number of positions per month in order to “qualify” for your handout: you could choose to continue working and earning, or you could lead a life of leisure. The existential fear associated with finding, and maintaining, employment would disappear.

Last month, a “robot rally” was held in Zürich to drum up support for the initiative. Hundreds of badly-disguised campaigners paraded through the city advocating a futuristic social contract between man and machine: according to these robots, as they become more advanced, displacing more and more blue and white-collar jobs, the only solution is a UBI allowing for dignified coexistence. Robots must be our friends, not our foes, they claimed. This common refrain of digital disruption is a core tenet of the campaign and echoes a zeitgeist debate in Switzerland around the future of work and technology. The concept of a “Fourth Industrial Revolution”, championed by Klaus Schwab, Executive Chairman of the Geneva-based World Economic Forum, has risen from soundbite to serious topic. Schwab says that current shifts in AI and connected technologies amount to “nothing less than a transformation of humankind”, one which will need solutions guaranteeing some sort of a minimum-income for all.

A record-breakingly large poster in the Pleine de PlainPalais, Geneva. Photo: Fabrice Coffrini/AFP/Getty

But the ego of an epoch tends to historical self-aggrandisement. Hasn’t technological change always been an issue? In the opening scene of the 1986 Only Fools and Horses episode “Let Sleeping Dogs Lie”, Rodney complains about computers and mass unemployment in Thatcherite Britain: “How many people have been put on the dole by a robot what [sic] can build a car?” Digital advances aside, this is hardly the case in Switzerland, where the average unemployment rate is 3.7 per cent. Che Wagner, spokesman of Basic Income Switzerland, the organisation behind the popular initiative, concedes that the country is not suffering from any “emergency problem”. Yet it is precisely the triad of “political stability, economic wealth and a strong liberal culture of self-determination” which makes Switzerland an ideal testing ground for opening the debate. Whereas welfare politics have traditionally aimed to solve problems, this initiative is a more positive affirmation of how best to organise an affluent society of the future. The key goal is more philosophical than economic; he is determined to “decouple the concepts of labour and self-worth”.

In this sense the initiative is a radical departure from both “welfare-politics-as-usual” and neo-liberal proposals for basic incomes. Che and his colleagues make up an independently-funded, wilfully apolitical group which eschews traditional concepts of left and right. There are no Marxist hangovers in the proposal (“we don’t want to take anything from anybody to give it to somebody else”), yet there is also no indication that they support a radical rationalisation of taxation and wealth creation implied by liberal economists like Milton Friedman. The UBI would not negate certain benefits guaranteed under the current welfare system – disability allowances, for example – and is not Randian model of eradicating poverty to let the wealth creators run free. The core raison d’être is an individualistic, humanist empowerment; any socio-economic reorganisation which would be bound to arise is secondary.

This reflects the messy international debate, which has come on the agenda in recent years and attracted inputs from across the spectrum. Both Yanis Varoufakis and Joseph Stiglitz have voiced approval. Slavoj Žižek, the loud Slovene philosopher of the far left, wants a reconceptualisation of UBI to recognise that “in a knowledge-based economy, collective productivity of the ‘general intellect’ is the key source of wealth” – a similar idea to Paul Mason’s vision of a “post-capitalist” socialism for a digital age. Unsurprisingly, the companies and tech evangelists who reap the largest benefits from this data-based economy are also concerned. Some are researching liberating models of “seed money for everybody” which would have the dual-advantage of reducing annoying government bureaucracy and mitigating the possible backlash against future technological gains. In true internet-emancipatory fashion, they also want to liberate people’s latent creativity by replacing the obligation to work by the incentive to innovate.

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It is difficult to argue with the idea that people should work because they want to, not because they have to. But Swiss referendums are not won and lost on philosophical niceties. Direct democracy depends upon an engaged and pragmatic population which deliberates more earthly concerns: is our society ready for this? What would happen to the Swiss economy? Most importantly, how would it work in practice? Unfortunately for the “yes” side, these matters have proven more difficult to communicate.

One opinion poll conducted in January found that just 2 per cent of the population would quit their jobs if the measure came into effect. This is far from any imagined society of freeloading slackers which people seem to fear (ironically, one-third of the same respondents said that they expected that others would leave their jobs). But in a nation where, like elsewhere, the education system is designed to train people for specific professions and the social expectation is that you are what you work, it is difficult to see beyond a vanguard of creative or entrepreneurial youth who might embrace the freedom. Of course, those working part-time positions paid little more than 2,500 Swiss francs would have little incentive to keep working, but elsewhere it may be business as usual. My local kebab vendor told me that he had been working since he was 14, so he would see no reason to stop now.

What the experiment would do to Swiss GDP is also unclear. According to the initiators of the plan, the extra cost to the exchequer to pay a UBI to all those currently under the 2,500 Swiss franc level would be a meagre SFr18 billion (the federal government puts this at SFr25 billion). This shortfall could be met by imposing a small tax on financial transactions, they suggest. Savings could also be made through the rationalisation of the welfare system, and VAT hikes have also been mooted. Under current conditions, then, the scheme would be feasible. But this is without factoring in various known unknowns: possible outsourcing of some industries due to less competitive wages, or a global reduction in GDP due to many workers reducing - if not eliminating - the hours they work. “A step too far in the right direction2, was how economist Tobias Müller put it recently in the daily Le Temps, echoing the consensus of the Swiss political class.

At the practical individual level, finally, how it would affect the pockets of the Swiss middle class is unclear. For those earning more than the minimum amount, the only difference would be that the first SFr2,500 of their salaries would be “re-packaged” as UBI. Being presumably tax-exempt, the measure therefore would mean an incremental gain but ultimately a maintaining of the status quo. An employee in an international organisation complained to me about the lack of clarity communicated both by the campaign and the government on the initiative: the actual vote hinges on three short constitutional amendments to ensure a “dignified” minimum income for the population, but details are scarce. Although she is “of course in favour” of the suggestion, she will thus vote against it. The middle and upper classes of Swiss society simply haven’t been convinced of the need for such radical change, she said. Who benefits?

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Ultimately, at all levels of politics and society, the strength of the proposal is also its weakness. Its vague, normative nature has attracted interest, but the lack of clarity around how it would work concretely and how it would affect the income of the majority of Swiss people has undercut any chance of success. Current indicators suggest it will be roundly rejected. The always out-on-a-limb Greens are the only political party to announce support. A recent opinion poll found that 72 per cent of the population were opposed to the measure.

The amount of air-time and attention it has received will nevertheless be perceived as a success by proponents. The broad nature of the proposal and the sometimes flamboyant campaign (last week they unveiled the largest campaign poster in history in Geneva (see above); the Guinness Book of Records was on hand) highlighted that their major goal was not to meticulously rewrite Swiss legislation but to kickstart the debate on their terms. The first rule of negotiation theory is to bid high. That the direct democracy system here allows for such radical proposals (whether progressive or lamentable, like some previous votes on immigration) is a boon for the international efforts to raise awareness of this future reordering of welfare.

As referendum season continues elsewhere in Europe, there may be a lesson for campaign strategists. Emotive issues are sure to attract commentary and vocal support, but the silent majority is more pragmatic than they are often given credit. It is one thing to aim for Marx’s vision of an economic system allowing us to “hunt in the morning, fish in the afternoon, rear cattle in the evening, and criticise after dinner”: voters want to know how the hunting rights and fish quotas would operate before signing up.