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.

Olivia Acland
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The closure of small businesses in Calais is punishing entrepreneurial refugees like Wakil

We meet the Afghan refugee who purchased a plywood shelter, painted it with blue hearts and green flowers, and stocked it with basic supplies. The police have just destroyed his makeshift shop.

French police have returned to the Calais migrant camp, known as the “Jungle”, to continue dismantling the businesses there. Last Friday was the fourth consecutive day that they had been in the camp seizing stock from shops, restaurants and barbers.

They have arrested at least 13 proprietors and accused them of running illegal businesses without authorisation, sustaining an underground economy, and not having the required health and safety measures in place. The majority of the “Jungle” businesses have now been dismantled.

Many small enterprises have cropped up in the Calais camp over the last year, and a mud road lined with plywood shacks has been nicknamed “the high street”. Here you can find Afghan restaurants, Pakistani cafes, hairdressing salons and small convenience shops. 

The Mayor of Calais, Natacha Boucher, recently announced that the camp is to be demolished imminently, and closing down its micro-economy seems to be the first step in realising this plan.


The authorities enter the Calais camp. Photo: Juliette Lyons​

The makeshift town – which is home to more than 4,000 people – has been cowering under the threat of demolition since January, when attempts were made to bulldoze its southern stretch. Most of the people living here have come from war-torn Afghanistan, Sudan, Iraq and Syria, and a lot of them have been on the move for years. The shops and restaurants were bringing a degree of normality back to their lives.

The businesses were mainly run by refugees who had given up trying to cross the border into Britain and were seeking some stability within the makeshift world.

Wakil, the owner of a small convenience store, was one of these people. He left Afghanistan four years ago, where he worked first as a journalist, and then as lorry driver for the US military. He tells me that he misses his old life and job greatly: “I studied at university for four years in order to become a journalist, I am passionate about that work and I dream of doing it again.”

Forced out of his hometown after writing articles that criticised the Taliban, he moved to Kabul and found work as a lorry driver for the US Army. When the US pulled out of Afghanistan, Wakil deemed it too dangerous to stay and set off on a journey to Europe.

He travelled over land through Iran, Turkey, and Greece, and then made it to Italy in a flimsy boat. With very little money, he was forced to sleep rough until he managed to find work in a restaurant where the owner was willing to overlook the fact that he did not have the right papers.

He started to establish a life in northern Italy, taking classes to learn the language and renting. Then, when the restaurant changed hands and the new owner refused to employ anyone without a work permit, he was once again jobless and without prospects. 

“After this happened, I decided to go to England,” he says. “Back home I had met some English people and they told me that life is good over there.”

Wakil then travelled by bus through France, and ended up stuck in Calais. He says: “I tried to cross the border but a policeman caught me in the back of a lorry – he beat me and sprayed me with pepper spray. After that I was frightened and I stopped trying. I decided to stay here for a while, and I set up this business to give me something to do.”


A view of tents in the camp. Photo: Olivia Acland

After just ten days in the Jungle, Wakil managed to purchase a plywood shelter off another Afghan refugee for €370. Smuggling building supplies into the camp had become very difficult, so “property prices” within the micro-economy were on the rise.

He painted the shack with blue hearts and green flowers, and stencilled the words “Jungle Shop” onto the side in mauve. When his improvised store was ready, he borrowed a bicycle and headed into Calais to buy basic supplies from cheap supermarkets.

He filled the shelves with tomatoes, fizzy drinks, milk cartons and biscuits. Each time a customer came asking for something that he didn’t have, he’d note it down and incorporate it into his next shop. In this way, his business grew and although the profits were small (around €250 a month), Wakil was relieved to be busy and working again.

Wakil’s business wasn’t raided the first day that the police came in, but after watching other shops being emptied of stock and the owners being taken to prison, he became extremely anxious. On the evening of the first raid, he invited friends to his shop to eat or take away as much of his supplies as they wanted.

“I was too worried to eat,” he says. “But I knew that the police would come for my shop in the next days and I didn’t want everything I’d bought to be wasted.”

Fearing arrest, Wakil then went to hide in Calais and returned at the end of last week to find his shop empty. 

“The police took everything,” he tells me. “When I came back and saw it all gone I felt terrible. Many more of my friends had also disappeared – I’m told they were taken to prison.”

When I express my sympathies, he replies: “Don’t worry about me; others from the Jungle are in worse situations. This has happened to many of us.”

Most of the businesses that were providing some kind of stability for displaced people like Wakil are now just empty shells. A volunteer at Care 4 Calais (a charity distributing aid in the camp) Alexandra Simmons says, “the businesses were giving independence to refugees who had lost everything. They were extremely good for people’s mental health.”

The bare shops now serve as stark reminders that it is just a matter of time before the camp is emptied of its people too.