Ain’t I a woman?

We say we are women and have always been women, even before transition. Don’t deadname me. Apart from a vociferous minority, most on the Left, or anyone with respect for human rights or common politeness, will call us “women”. What does the law say?

In Corbett v Corbett, a case for nullity of marriage where a cis man married a trans woman, Mr Justice Ormrod said to establish whether someone was a man or a woman you should consider psychological factors as well as chromosomes, gonads and sex organs. A doctor said, We do not determine sex- in medicine we determine the sex in which it is best for the individual to live. Doctors are not concerned only with objective facts, but helping people to function as best we can. However the judge was deciding the case in a marriage, which he said required straight sex, and there can be no straight sex with a woman whose chromosomes and pre-operative gonads and sex organs were male. I am not concerned to determine the ’legal sex’ of the respondent at large, said the judge. April Ashley was paying national insurance, then different for men and women, as a woman. The judge saw no objection to that. So we could not marry, but we could be treated as women for all other purposes.

Then came the Gender Recognition Act, in 2004. At the time there were Civil Partnerships for gay people, which were not called “marriage” but were more or less similar. Equal marriage came in 2013. The GRA provided that a marriage must end before a gender recognition certificate was granted, which implies that was because two people of the same sex cannot be married. Now, a civil partnership must be converted into a marriage before a GRC is issued, apparently because two people of the opposite sex cannot be in a civil partnership.

Before the GRA, we could get our passports changed, to indicate we were female. Even married people could. We can get that change before getting a GRC. When a full GRC is issued, (s.9) the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender… is the female gender, the person’s sex becomes that of a woman). My sex is female. My gender is female. Sex offences legislation in Scotland says that it is rape if a penis enters a vagina without consent, whether those are surgically created or not. But the GRA says a GRC does not prevent a woman with an unreconstructed penis from being found guilty of rape.

Before my GRC I was treated as a woman, with the clear exception of marriage and possibly other exceptions. After my GRC I am a woman for all legal purposes; but the father of a child is still the “father”.

We need to be treated as women when dressed as women, even when for most of the time we are still presenting male. My psychiatrist gave me a card to show people if I were challenged in a woman’s loo. The Equality Act protects us from the moment we propose to undergo… a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex. Physiological is clear- hormones and surgery. Other attributes include social relations: if I intend without hormones or surgery to express myself female, then I seek to be reassigned.

I am protected from being treated less favourably because I am seeking gender reassignment- in employment, services, public services, premises, education, and clubs and associations. I would be treated less favourably if I were made to use a man’s loo. There is no law preventing people being treated less favourably because they are cis.

There is an exception (sch. 9, para 1(3)(a)) if it is shown to be a proportionate means of achieving a legitimate aim to require a worker not to be a “transsexual person”. That applies whether or not I have a GRC.

In some cases, services can be provided only to people of one sex. Women’s refuges might argue that. It is not discrimination on the grounds of gender reassignment (sch 3, para 28) to exclude someone from a single sex service if that is a proportionate means of achieving a legitimate aim. So a women’s refuge might treat me as a man even after I get my GRC: they are discriminating on the ground of gender reassignment, but that is lawful.

Law only matters when there is a dispute. A man can go to a woman’s toilet if no-one challenges him, They tend not to, as they anticipate a challenge, fear mockery for lacking manhood or accusations of being a sex predator, or feel it would not be right. So first what matters is what society considers reasonable: if I, before transition, dare go into a woman’s toilet, dare anyone challenge me? If, after transition, I seek help from a women’s refuge, do they think it reasonable to exclude me? If there is an all-woman shortlist, do we go along with it using the normal definition of “woman”, which includes trans women?

Before I went full time, I went into women’s loos when dressed female. The Labour Party can decide that I can join the women’s forum, and if it is not clear from their rules I can go along, and no-one has objected to my face. Many people say that is right. The State has been giving us passports saying F and driving licences saying we are female long before the GRA. Even before I transitioned, I had a credit card with the title “Miss”.

The Scottish parliament has just enacted a “gender representation objective” for a public board [which] is that it has 50% of non-executive members who are women. The Act specifies, that “woman” includes trans women if we are living as a woman. That would apply immediately we went full time. Other matters may be disputed on a case by case basis.

Trans feminism

Trans rights are essential to feminism, for they are the way to value all that a woman can be, from ultra-feminine to (almost) trans man. Trans rights are a feminist issue. Trans people advance feminist concerns.

I spent half an hour last night on Youtube watching a feminist attack trans rights on feminist grounds. She told of the opposition to the women’s suffrage movement a century ago, by women as well as men, based on the idea that women were different and would not have the objectivity to judge the interests of the public sphere. She has been held back by this persisting idea of difference, which is the heart of women’s oppression, and which she says “trans ideology” actively enshrines.

That might be true if trans were static, one way of being trans being the only way. But trans people are creative, finding new ways of being ourselves in our own spaces, in performance writing and entertainment, and in ordinary lives in the world. Trans is a force undermining that idea of difference between sexes and promoting the truth of the variation within the sexes which increases the freedom of everyone.

I want to relate to others as myself, with minimal pretence to comply to gender norms. This is easier after transition. I tried to “make a man” of myself, with a restrictive idea of how a man should be. Expressing myself as a woman freed me. If it were indeed seen as leaping a chasm, becoming something utterly different, that would be conservative, enshrining difference. When the doctors got hold of the idea of trans, taking it out of our own subcultures, they produced a medicalised idea of transition, involving hair removal, genital alteration and hormone treatments, to create a person who would look like a man, or look like a woman, undressed as well as clothed.

The idea that I am really a woman, with a woman’s brain, spirit or character, which this feminist finds so oppressive because it means there is a difference between men and women beyond our reproductive function, freed me to transition. Thousands of us, rather than tens of thousands in Scotland where she was speaking and which proposes altering the law, might be freed from a conception of their gender which they find oppressive, yet they cannot change without this drastic step- by allowing transition. Out of 5.3m people, ten thousand would be 0.2%, a large number actually to transition.

The idea of a transsexual person freed me to transition, but even as I did I realised there were two questions.

Am I transsexual?
Will I be happier if I transition?

The second is more important. First the ideology, then the idea frees me to express my gender by teaching me that it is possible. So individuals and society together produce formalised routes for transition and recognition. Trans people become more visible, vocal and encouraged, and empowered to do something about the restrictions of their gender rather than living fearful, stultified lives or ending them.

As we become empowered, we critique the medicalised concept of transition. Do we really need genital surgery? Should someone necessarily be sterilised before their gender is recognised? No, we say. Do we need to live in stealth, where people think we were born (wo)men? No, because that is in fear of transphobic violence- it may be prudent sometimes but it oppresses us with an impossible ideal of beauty.

Gender ceases to be a choice of two, almost entirely aligned with physical sex, and becomes a palette of possibilities. It is happening- here, now, in Scotland and beyond, with people who would never think of themselves as trans but also with trans people, blurring the lines and increasing freedom. Eventually the two groups will meet, a spectrum of gender rather than a division between those self-identified as trans or not-trans. The increasing complexity of ideas such as genderqueer and non-binary accelerate this change.

Femininity is oppressive when people are judged as less because of their natural unfeminineness. Then femininity can seem merely oppressive, a tool to oppress women. Trans shows that femininity freely chosen is a source of strength and self-actualisation, valuable in its own right for AFAB as well as AMAB. I see trans men choosing what I rejected, and so am enabled to see value in it.

That feminist on the video, wanting to say “NO” to a trans woman entering a woman’s bathroom, and getting a loud cheer for rejecting the idea that women must always put others’ feelings before their own, paradoxically aids the conservatives by restricting trans people to a narrow, absolute concept of transition. She opposes the law being more liberal, and discerns a loosening of the concept of a “sex change”, though in Scotland the proposals would still require us to swear we would live in the other gender life long. Allowed to grow freely, the trans movement would increase the range of gender expression and freedom.

Trans is a feminist movement, promoting the freedom of all, including cis women who do not conform to the cultural stereotype of femininity, including that woman who rails against it. Many cis women support trans rights. As Margaret Atwood says, A war among women, as opposed to a war on women, is always pleasing to those who do not wish women well. Women strongly opposed to trans rights should consider whether any of the wrongs they rail against has any realistic chance of happening.

Trans women are no threat

Self-declaration is the way to make gender recognition fair. I do not need a psychiatrist to tell me who I am. No-one who is AMAB will declare herself to be a woman lightly, and a few safeguards will make that risk minimal: requiring a change of name, requiring an oath or affirmation, making it slightly more difficult to change back, will prevent people doing it for laughs.

When cis women say self-declaration is a threat, or that women should be consulted, it is hard to find what they feel the threat comes from. From all trans women? We generally transition because we are soft and gentle and not conventionally masculine. Whether or not you think that is “feminine” or womanly or women would be like that but for Patriarchy, it means we are not likely to hurt other women. We don’t like to be noticed, because when we are we may suffer violence from others. If you call us a threat that is threatening to us: others may feel justified in attacking us to “defend” themselves or others.

Or is it from a small minority of trans women? Some of us are violent; but then so are some cis women. There is a greater risk in a changing room from cis women, because there are more of them. Most people are peaceable.

Or from men pretending to be trans women, to get access to women’s space? There should be no minimum standards of visible femininity to be an acceptable trans woman, because a lot of us don’t pass, and “women’s clothes” is a problematic category. But people can see where something is off, and generally a trans woman will want to appear to be making an effort. We don’t want to be noticed, because that is a threat to us. Men are a threat to women, but do not need to dress as women to attack women.

Possibly particular groups could be treated differently. Perhaps self-declaration should not be enough to transfer a prisoner from a men’s to a women’s prison. But there could be easy safeguards in such cases, requiring psychiatric assessment and a period of adjustment before transfer. Having to express themselves as women in a male prison, or go into segregation, would deter all but the most determined prisoners, and the trans women are the most determined.

Where a woman has been attacked or violated recently, she may feel particularly vulnerable. She may feel a woman’s changing room should be a safe space, and be disturbed to see someone she reads as a man there. I sympathise with that. I try to be sensitive. I am not demonstrative in women’s space, but make myself small so as not to be noticed. That seems to be the source of the objection, though: the problem is all trans women, and cis women may be offended or disturbed to see us in women’s space. That is, it is a phobic reaction, a disproportionate sense of threat, or attaching the sense of threat to something unthreatening, as a spider is unthreatening, really, to an arachnophobe.

They do not see themselves as phobic, but as reasonable. There is the cause of the anger. It is extreme anger, especially when they congregate together, exemplified by Linda Bellos on a platform saying “If anyone of those bastards [transwomen] comes near me, I will take my glasses off and thump them. [crowd laugh] Yes I will take my glasses off… But I do, I am quite prepared to threaten violence, because it seems to me that what they are seeking to do is piss on all women.” For her, I am part of an undifferentiated “Them”, a threat to her wanting to damage all [cis] women.

Fortunately, women who are not transphobic do see that we are unthreatening, and support us.

Gender Recognition in Scotland

The Scottish Government proposes that a person should get gender recognition, if they make a formal declaration before a Notary Public that they intend to live in their acquired gender until death. Making a false statutory declaration is a criminal offence, and their research on other countries allowing self-declaration has not found evidence of false or frivolous statements. There is support from women’s rights organisations including Scottish Women’s Aid and Rape Crisis Scotland, whose joint statement says, We do not regard trans equality and women’s equality to be in competition or contradiction with each other. We support the Equal Recognition campaign and welcome the reform of the Gender Recognition Act.

Rape Crisis and Women’s Aid in Scotland provide trans inclusive services on the basis of self identification. We will continue to work collaboratively with Scottish Trans Alliance and other equality organisations with the aim of ensuring that new processes are appropriately designed and without unintended consequences.

Limiting the number of times one can change sex might restrict frivolous applications. Malta requires second and subsequent applications to be considered by a court. However Sam Kane has transitioned three times, male to female to male to female, and I feel each time she did it feeling distress and oppression. She reverted because of sexism and transphobia. These things are not her fault and she should not be penalised for them. Colombia only permits two changes, which must be at least ten years apart. That might make me fear an honest declaration, since I cannot correct it if I am wrong. When I transitioned, I thought it possible that I might be trying to live male five years later. It is an additional difficulty, just one more thing requiring a leap of faith. I consider my real transition to be the day I transitioned at work, or “went full time”, which required enough clarity, determination and trust, as I would have made a fool of myself to revert.

Even the suggestion that men might do this frivolously, or maliciously to get access to women’s space, is repulsive. Even three in a year might be a leap, a bad experience causing reversion, then a second leap of faith which is even more courageous. I do not want someone showing that courage and determination to be investigated in case they were frivolous. Instead, deal with actual wrongs. Women’s space is not a good place for sex crime, as the criminal is outnumbered. Women’s support groups have experience with difficult behaviour and ways of dealing with it.

The Scottish Government proposes that 16 year olds should be able to affirm their gender change, as Scots law generally gives rights as adults to people over 16, and protections as young people until 18. They are consulting on various options for younger children, such as allowing parents to affirm for them. The parent would be trusted to do this in the best interests of the child, and consider the child’s wishes. Alternatively, a child who could show they had sufficient maturity to make the decision could affirm.

Ireland and Denmark do not require the consent of a spouse before a married trans person can declare their gender. If the gender change breaks the relationship, the trans person should not have to undergo the expense of divorce before getting their gender recognised. If the relationship remains, the trans person will not make the declaration without their partner’s support. In either case they should not require the partner’s consent. Consent can be used to put improper pressure on a trans person. The other may feel betrayed, and feel that the trans person has broken the relationship, but that does not entitle them to take revenge by refusing consent.

Now, if one partner seeks gender recognition the other can use that as grounds for divorce. This should not be a separate ground for divorce. The usual ground is “unreasonable behaviour”, and a spouse should be able to argue that gender change is unreasonable behaviour. This is such a slight change; it means that gender recognition broke the marriage in the particular circumstances of this couple, rather than normally or generally.

They are also talking of increasing recognition for non-binary people, though this will require action by the UK government and additional rights in Equalities legislation.

They don’t address the question of what it means to “live in your acquired gender”. For me, does it mean always wearing wigs and at least attempting to talk in a feminine register? Does it mean anything else about clothing preferences, or particular behaviours? I think it means what the person believes it to mean. Women can wear what they like and do what they like. I feel most people who change gender will have a particular view about what it means, and attempt to resemble the assigned gender, but that is subjective too.

Consultation document pdf is here. It describes ways to respond to the consultation.

Gender recognition II

When I sought my gender recognition certificate, I needed the reports of two doctors: one the psychiatrist who had diagnosed me, and my GP. I needed to state what surgery I had had. My word was not good enough for them: I needed documentary proof, such as wage slips, that I had been using a female name for two years. I needed to swear or affirm that I intended to live life long in my new gender. It is all a matter of policing. The State needs to ensure that I am not frivolous- as if frivolous applications for gender recognition could ever be a serious problem.

When I got my passport, the passport office asked if I had had surgery, though at the time the guidance was that they should not. I needed a letter from my GP.

Why should I need a psychiatrist? Gender dysphoria is not a mental illness.

The parliamentary committee recommend self-declaration of gender. In place of the present medicalised, quasi-judicial application process, an administrative process must be developed, centred on the wishes of the individual applicant, rather than on intensive analysis by doctors and lawyers.

I went through the procedure because it had to be done. Given that the law could recognise that I was female, I wanted that, so I was happy to do what I needed to, to achieve that. I knuckled under. So it is wonderful to read of the healthy resentment of the witnesses campaigning against this scrutiny: it is humiliating to have your gender assessed by someone else. You are the only person who can come to that realisation, not a panel. It is an outdated system. So Ashley campaigned and petitioned, and her actions are part of the pressure which has achieved this promise of change. I had had the operation, so was OK, but the gender recognition panel has insisted on really intrusive levels of detail about the surgeries that people have undergone or their intentions for future surgery, and is incredibly pedantic about any perceived inconsistencies in the medical reports.

The Council of Europe resolution calls for quick, transparent and accessible procedures, based on self determination.

I had my passport and driving licence changed before I had my GRC. I would not have wanted to use a passport saying M in those two years. That has been a problem for others, since the Gender Recognition Act. Yet I could obtain a passport immediately on change of name, saying “F”- I would hardly have wanted to change it, if I were going to revert. It would have been practically unusable. My very desire for it proves it is right to give it, and if it was not right, I bear all the loss.

Degas, after the bath

Gayle Newland

“For us, that was what was normal”. In this case, always wearing a blindfold when with her “boyfriend”, putting it on before he would open the door to her, kissing and cuddling on the sofa before the television blindfolded, blindfolded during sex, blindfolded when going out together, riding in a car then being led through a building up some steps into a garden where they sunbathed. It was only when sucking her boyfriend off and finding that the scrotum “felt wrong” that she took off the blindfold and found it was her female friend in a strap-on.

Honestly, possibly. The jury believed her. The defendant, Gayle Newland, claimed that the unnamed woman victim had been her friend, meeting her as Gayle rather than as “Kye”, Gayle’s male persona, and confessing that she like Gayle was lesbian but deeply screwed up about it. There had been no deception.

As a trans woman, I find it wearing, that “sex with a woman” and “sex with a man” are held to be so different that trans folk might be criminalised for pretending. Don’t come here for legal advice: I am unclear whether the operation is what makes the difference, as I now have a vagina, or the Gender Recognition Certificate, as the laws of England and Scotland both consider I am a woman. As far as I was concerned, I was a woman when I ceased presenting male, and now am prepared to assert I was female from birth, though I would not have said so at the time.

I would make sure I had informed consent before sex. One way of considering me is “demi-sexual”, getting physical only after forming a romantic attachment; “demi-sexual” makes it sound like an orientation, but it could be having imbibed certain taboos and moral attitudes about sex. But I feel trans folk should be able to have casual sex on the same terms as anyone else- see someone through beer goggles, say “What the hell”, find somewhere quiet- without that conversation.

That was not what happened here. There was a relationship over several months.

If Gayle Newland was ashamed of wanting sex with women, being Lesbian, she still managed it. She said, “I had never spoken to any gay people and especially in those years you didn’t see gay people on television. It was quite a negative thing. I just felt that speaking to people [in real life] I couldn’t really be myself.” She is 25. For so many of us, internalised homophobia is as bad as it ever was. Could she not believe that anyone else would find her real female self attractive, or was Gayle the act, Kye the true self? Is she trans?

I don’t know whether to be pleased or horrified at the lengths someone will go, for affection. Someone who told me she was too ugly, and I had to wear a blindfold? I would want to be trusted, to see her inner beauty.

Two Guardian reports.

In October, the Court of Appeal quashed her conviction, criticising the judge’s summing up, and she was retried. On 29 June she was convicted, and released pending a sentencing hearing. The judge said that on 20th July Newland was likely to receive a “significant custodial sentence”.

The complainant, who it appears thought “Kye” was a man, texted the accused after finding out the truth. Are you for real you should be locked up for what you’ve done to me. You raped my life, my heart and soul. No amount of counselling will make up for this. you are pure evil Gayle. You are sick. I only have one question: why me? You have no explanation, Gayle, other than you are pure evil … If I had not ripped off the mask I would not have known the evil truth. She was straight. The thought of sex with a woman horrified her. A further Guardian report.

Angelo Bronzino, Venus, Cupid and Envy

Gender Recognition

It has been possible since the 1970s to change your gender in the Czech Republic, by applying to the local registry office. As in most places, you need to have gender reassignment surgery, which must be approved by a medical advisory board including a lawyer, two medical specialists and two physicians not participating in the surgery. This makes the British requirement of two psychiatric reports in support seem simple. In Italy, female to male reassignment requires mastectomy and hysterectomy, though some might not want all that surgery, otherwise.

Estonia requires a test to certify that gonadal and chromosomal gender match: if they do not, there are alternative procedures. Finland requires that you have been sterilised or are otherwise incapable of having children. In France, genital surgery is not required, but there must be an irreversible physiological transformation leading to an irreversible change of sex. It depends, perhaps, how you define “sex”.

In 2011, the Constitutional Court in Germany ruled that the requirement to be sterile and have undergone surgery were inapplicable. A marriage contracted before reassignment will remain valid.

Mexico has the most liberal law: you only need to have been receiving treatment, such as hormone treatment, for five months. Moldova may have the most restrictive: four people have successfully changed gender there since the breakup of the USSR, as opposed to 4000 in the UK. Had the same proportion changed sex, there would have been more than 200.

In Malta, the civil court decided that the purpose of a change to the birth record was the protection of privacy, not the recognition of a change of sex- so there is no “acquired gender” for the person to marry. Malta has had civil unions for gay couples only since 2014.

In Japan, the applicant must have no living child aged 19 or younger. This took effect in 2008- so our rights may be restricted, even after we gain them. Liechtenstein has the explicit provision that a gender change may not be reversed. Why ever not? No-one applies for gender recognition frivolously. In Luxembourg, the identity card and passport can only be changed after gender recognition. The general principle in case law is that gender is immutable, so there must be exceptional circumstances and Necessity. Whereas to me, gender change is entirely normal: rare, but not exceptional.

In Romania, you can only change your first name after the court has recognised your change of gender. In Serbia, the psychiatrist who diagnoses GID is obliged to talk to the patient’s family and friends in order to confirm the diagnosis. Only after surgery can the applicant change his/her name, and get a corrected ID card and passport.

Each US state has different rules. In Alabama, an amended birth certificate is issued which indicates that the sex has been changed.

The whole is a patchwork. We must be controlled, and made to jump through hoops; and where the authorities graciously deign to recognise gender change, our rights are not the same as those of others. But really someone’s sex is nobody’s business but their own.

Monet, Camille Monet on a bench