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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Britain's commemoration of Partition is colonial white-washing in disguise

It’s much easier to focus on the indigenous perpetrators of religious violence than on the imperialist policies that facilitated it.

While in London a couple of weeks ago, I couldn’t help but notice a curious trend in the British media’s coverage of the upcoming 70th anniversary of the end of British colonial rule in the Indian subcontinent. It wasn’t the familiar think-pieces about "the jewel in the crown", thinly disguised nostalgia for empire masquerading as critiques of colonialism (see for example, The Conversation’s piece on how colonialism was traumatic for, wait for it, officials of the British Raj). It wasn’t the patronising judgements on how India and Pakistan have fared 70 years down the road, betraying the paternalistic attitude some of the British commentariat still harbours towards the former "colonies". It wasn’t even the Daily Mail’s tone-deaf and frankly racist story about 92 year old countess June Bedani and her “loyal Indian houseman” Muthukanna Shamugam, who doesn’t even speak a word of “Indian” (that’s just classic Daily Mail). What got my attention was the British media’s raging hard-on for Partition - a flurry of features, documentaries and TV specials about one of the biggest and bloodiest mass migrations of the 20th century.

Just take a look at the major headlines from the past couple of weeks - "They Captured And Forced Him Out Of His Home: This Isn’t Syria In 2017, It Was India In 1947" (Huffington Post UK); "Partition: 70 Years On" (The Guardian, BBC and Independent, each with a different subhead); "The Real Bloody Legacy Of Partition" (The Spectator); "Remembering Partition: 70 Years Since India-Pakistan Divide" (Daily Mail) and many more. It isn’t that - unlike some of my more reactionary compatriots - I believe that the Partition story shouldn’t be documented and spoken about. On the contrary, I think India and Pakistan have failed to grapple successfully with Partition’s scars and still festering wounds, and the way it still haunts both our domestic politics and our relationship with each other. But the overwhelming focus on the grisly details of Partition by the British press is deeply problematic, especially in its unsubtle erasure of British culpability in the violence. Even the Guardian’s Yasmin Khan, in one of the few pieces that actually talks about the British role in Partition, characterises the British government as “naive and even callous” rather than criminally negligent, and at least indirectly responsible thanks to its politics of "divide and rule". Of course, it’s much easier to focus on the indigenous perpetrators of religious violence than on the imperialist policies that facilitated it. That would require the sort of national soul-searching that, even 70 years on, makes many British citizens deeply uncomfortable.

Rose-tinted views of empire aside, the coverage of Indian and Pakistani independence by the British press is also notable in its sheer volume. Perhaps, as some commentators have suggested, this is because at a time of geopolitical decline and economic uncertainty, even the tainted legacy of colonialism is a welcome reminder of the time when Britain was the world’s reigning superpower. There is certainly some truth to that statement. But I suspect the Brexit government’s fantasies of Empire 2.0 may also have something to do with the relentless focus on India. There is a growing sentiment that in view of historic and cultural ties, a post-Brexit Britain will find natural allies and trade partners in Commonwealth countries such as India.

If that’s the case, British policy-makers and commentators are in for a reality check. The truth is that, despite some simmering resentment about colonialism, most Indians today do not care about the UK. Just take a look at the contrast between the British and Indian coverage of Independence Day. While there are a handful of the customary pieces about the independence struggle, the Indian press is largely focused on the here-and-now: India’s economic potential, its relationships with the US and China, the growing threat of illiberalism and Hindu nationalism. There is nary a mention of contemporary Britain.

This is not to say that modern India is free of the influence - both good and bad - of colonialism. Many of the institutions of Indian democracy were established under the British colonial system, or heavily influenced by Britain’s parliamentary democracy. This is reflected both in independent India’s commitment (in theory, if not always in practice) to the ideals of Western liberalism and secularism, as well as its colonial attitude towards significant sections of its own population.

The shadow of Lord Macaulay, the Scottish legislator who spent four eventful years in India from 1834 to 1838 and is considered one of the key architects of the British Raj, still looms large over the modern Indian state. You can see it in the Penal Code that he drafted, inherited by both independent India and Pakistan. You can see it in Indian bureaucracy, which still functions as a paternalistic, colonial administrative service. And you can see it in the Indian Anglophile elite, the product of an English education system that Macaulay designed to produce a class of Indians “Indian in blood and colour, but English in taste, in opinions, in morals, and in intellect.” It was this class of Anglophile Indians who inherited the reins of the Indian state after independence. It is us - because I too am a Macaulayputra (Macaulay’s child), as the Hindu right likes to call us. We congratulate ourselves on our liberalism and modernity even as we benefit from a system that enriched the few by impoverishing the many. This class of brown sahibs is now the favourite punching bag of a Hindu nationalism that we have allowed to fester in our complacency.

Still, ghosts of the past aside, the UK no longer holds sway over young India, even those in the Anglophile upper classes. Today’s young Indians look to the United States for their pop culture references, their global aspirations and even their politics, both liberal and conservative (see the Hindutva fringe’s obsession with Donald Trump and the alt-right). We still want to study in British universities (though increasingly strict visa rules make it a less attractive destination), but we’d rather work in and emigrate to the US, Canada or Australia. We drink coffee rather than tea (well, except for the thoroughly Indianised chai), watch Veep rather than Yes Minister, and listen to rap, not grime.

Macaulayputra insults aside, the British aren’t even the bogeymen of resurgent Hindu nationalism - that dubious status goes to the Mughal Empire. Whether this cultural turn towards America is a result of the United States’ cultural hegemony and economic imperialism is a topic for another day, but the special "cultural links" between India and the UK aren’t as robust as many Brits would like to think. Which is perhaps why the UK government is so intent on celebrating 2017 as the UK-India year of Culture.

Many in the UK believe that Brexit will lead to closer trade links between the two countries, but much of that optimism is one-sided. Just 1.7 per cent of British exports go to India, and Britain's immigration policy continues to rankle. This April, India allowed a bilateral investment deal to lapse, despite the best efforts of UK negotiators. With the Indian economy continuing to grow, set to push the UK out of the world’s five largest economies by 2022, the balance of power has shifted. 

The British press - and certain politicians - may continue to harbour sepia-tinted ideas of the British Raj and the "special relationship" between the two countries, but India has moved on. After 70 years, perhaps the UK will finally realise that India is no longer "the jewel in its crown". 

 

Bhanuj Kappal is a freelance journalist based in Mumbai.