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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No, identity politics is not to blame for the failures of the left

This is no time to back away from our commitment to women’s rights, racial justice and sexual equality.

In these troubled times, it's good to know that moderate conservatives, anxious liberals and even your neighbourhood Trotskyist uncle can come together against the common enemy: students. Prissy, stuck-up students, with their trigger warnings and political correctness and highfalutin ideas about racial justice. It must be their fault. Forget the gurning neo-fascists goose-stepping into power across the globe, it's the students who are the real enemy. If they hadn't been so hung-up on identity politics, we wouldn't be staring into this abyss. You know I'm right.

That was me being sarcastic. The reason I need to point that out is that on or around 9 November 2016, the age of irony gave way to a new one of deadpan sincerity. It happened at some point between the election of an orange billionaire tycoon to the White House and authorities condemning Native American protesters at Standing Rock under the outgoing administration. So, unfortunately, I must be clear: no, I don't think that “identity politics” is the greatest threat to western civilisation. Some people, however, really do, and are at pains to point out that this geopolitical disaster could have been avoided if we had all been less precious about gay rights and women's rights and black lives and concentrated on the issues that matter to real people. Real people meaning, of course, people who aren't female, or queer, or brown, or from another country. You know, the people who really matter.

In the wake of successive victories for the venal far-right, commentators from all sides of the self-satisfied, chin-stroking debate school are blaming “identity politics” for the disaster on our doorsteps. What they seem to mean by this is “politics that matter to people who aren't white men in rural towns”. I have always thought of that simply as politics, but according to Mark Lilla, writing in the New York Times, I was mistaken. Diversity, Lilla writes, is:

“A splendid principle of moral pedagogy  but disastrous as a foundation for democratic politics in our ideological age. In recent years American liberalism has slipped into a kind of moral panic about racial, gender and sexual identity that has distorted liberalism’s message and prevented it from becoming a unifying force capable of governing.”

This is an idea that has remarkable staying power across a fractious and divided left: the idea that issues of race, gender and sexuality are at best a distraction from class politics, and at worst a bourgeois tendency that will be destroyed after the revolution. The logic is that by focusing on issues of social justice, the political class has abandoned “real” working people to economic hardship.

This notion is horribly wrong, and the worst thing is that it's wrong in the right direction, a train of thought that stays safely on track right until it slams into the hoardings next to the station. The political class has indeed rolled over and let kamikaze capitalism wreck the lives of working people around the world. Identity politics, however, has little to do with that cowardice. That the two are now yoked together in the popular imagination is something the left must answer for.

All politics are identity politics, but some identities are more politicised than others. The notion that the politics of identity and belonging have been allowed to overwhelm seemingly intractable issues of class, power and poverty is, in fact, entirely correct  but this is not a problem for the traditional left. It is a problem for the traditional right, which has pursued a divide-and-conquer strategy for centuries, pitting white workers against black and brown workers, men against women, native-born citizens against foreigners in a hierarchy of victimhood that diverts energy and anger away from the vested interests bankrolling the entire scheme.

As journalist Michelle Garcia noted, responding to Lilla in the New York Times:

 “The attack on political correctness fits within the brand of identity politics Donald Trump exploited during his campaign. Mr Trump's victory relied on fusing a culture of racism and sexism with economic anxieties and the backlash against neoliberalism.”

It's a shell-game. A con. It did not start with Donald Trump, but the real-estate mogul and social media tantrum-artist has taken it to its logical conclusion. The president-elect and his fellow travellers and sugar daddies have committed political fraud against the entire western world. They have compounded it – as all good fraudsters do – by making us believe that it was our fault for being so naive in the first place.

It is, to some extent, reassuring to believe that it’s all our fault. If it’s all our fault for being too politically-correct, too committed to “diversity”  if it were liberals and leftists who messed up by listening to these whining hippies with their patchouli-scented ideals of fairness and tolerance and police not shooting young black men dead for no reason  we might have to face the much scarier notion that what’s happening is, in fact, beyond our control. Instead, those who should know better are encouraging the most vulnerable to throw themselves under the bus for the greater good. This is not just offensive. It is also stupid.

The truth is that social justice and economic justice are not mutually exclusive. Those who would sacrifice one for the other will end up with neither, which is of course what the unscrupulous narcissists manspreading at the gates of power are counting on. The mainstream political left has, for generations, been unable to answer the core economic issues that  shocking, I know, but hear me out  affect the lives of all human beings, of every race, gender and background. For generations, in the face of late capitalist hegemony, all it could realistically achieve was to tweak the system incrementally, making things a little fairer for individual groups, without challenging the structural inequalities that created the injustice in the first place. This must change, and soon. Not just because of “fine moral principles”. Trying to fix economic policy without tackling structural inequality is not just morally misguided  it is intellectually bankrupt.

Race, gender and identity are not side issues in the current crisis. On the contrary. Capitalism has always divided its labour supply along lines of race and gender, ensuring that in times of unrest, we don't start burning our looms  far safer for us to set fire to one other. All politics are identity politics, and this is no time to back away from our commitment to women’s rights, racial justice and sexual equality. This is when we double down. The fight against the corporate neo-fascism funnelling out of every television set is not a fight that can be won if liberals, leftists and social justice campaigners turn on one another. It is a fight that we will win together, or not at all.

Laurie Penny is a contributing editor to the New Statesman. She is the author of five books, most recently Unspeakable Things.