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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After Article 50 is triggered, what happens next?

Theresa May says Article 50 will be triggered on 29 March. The UK must prepare for years, if not decades, of negotiating. 

Back in June, when Europe woke to the news of Brexit, the response was muted. “When I first emerged from my haze to go to the European Parliament there was a big sign saying ‘We will miss you’, which was sweet,” Labour MEP Seb Dance remembered at a European Parliament event in London. “The German car industry said we don’t want any disruption of trade.”

But according to Dance – best known for holding up a “He’s Lying” sign behind Nigel Farage’s head – the mood has hardened with the passing months.

The UK is seen as demanding. The Prime Minister’s repeated refusal to guarantee EU citizens’ rights is viewed as toxic. The German car manufacturers now say the EU is more important than British trade. “I am afraid that bonhomie has evaporated,” Dance said. 

On Wednesday 29 March the UK will trigger Article 50. Doing so will end our period of national soul-searching and begin the formal process of divorce. So what next?

The European Parliament will have its say

In the EU, just as in the UK, the European Parliament will not be the lead negotiator. But it is nevertheless very powerful, because MEPs can vote on the final Brexit deal, and wield, in effect, a veto.

The Parliament’s chief negotiator is Guy Verhofstadt, a committed European who has previously given Remoaners hope with a plan to offer them EU passports. Expect them to tune in en masse to watch when this idea is revived in April (it’s unlikely to succeed, but MEPs want to discuss the principle). 

After Article 50 is triggered, Dance expects MEPs to draw up a resolution setting out its red lines in the Brexit negotiations, and present this to the European Commission.

The European Commission will spearhead negotiations

Although the Parliament may provide the most drama, it is the European Commission, which manages the day-to-day business of the EU, which will lead negotiations. The EU’s chief negotiator is Michel Barnier. 

Barnier is a member of the pan-EU European People’s Party, like Jean-Claude Juncker and German Chancellor Angela Merkel. He has said of the negotiations: “We are ready. Keep calm and negotiate.”

This will be a “deal” of two halves

The Brexit divorce is expected to take 16 to 18 months from March (although this is simply guesswork), which could mean Britain officially Brexits at the start of 2019.

But here’s the thing. The divorce is likely to focus on settling up bills and – hopefully – agreeing a transitional arrangement. This is because the real deal that will shape Britain’s future outside the EU is the trade deal. And there’s no deadline on that. 

As Dance put it: “The duration of that trade agreement will exceed the life of the current Parliament, and might exceed the life of the next as well.”

The trade agreement may look a bit like Ceta

The European Parliament has just approved the Comprehensive Economic and Trade Agreement (Ceta) with Canada, a mammoth trade deal which has taken eight years to negotiate. 

One of the main stumbling points in trade deals is agreeing on similar regulatory standards. The UK currently shares regulations with the rest of the UK, so this should speed up the process.

But another obstacle is that national or regional parliaments can vote against a trade deal. In October, the rebellious Belgian region of Wallonia nearly destroyed Ceta. An EU-UK deal would be far more politically sensitive. 

The only way is forward

Lawyers working for the campaign group The People’s Challenge have argued that it will legally be possible for the UK Parliament to revoke Article 50 if the choice is between a terrible deal and no deal at all. 

But other constitutional experts think this is highly unlikely to work – unless a penitent Britain can persuade the rest of the EU to agree to turn back the clock. 

Davor Jancic, who lectures on EU law at Queen Mary University of London, believes Article 50 is irrevocable. 

Jeff King, a professor of law at University College London, is also doubtful, but has this kernel of hope for all the Remainers out there:

“No EU law scholar has suggested that with the agreement of the other 27 member states you cannot allow a member state to withdraw its notice.”

Good luck chanting that at a march. 

Julia Rampen is the editor of The Staggers, The New Statesman's online rolling politics blog. She was previously deputy editor at Mirror Money Online and has worked as a financial journalist for several trade magazines.