Narratives II

Overheard in the café-bar: “Twenty percent of them never return their assessment forms.” She is talking of ESA, the benefit paid to some people who are completely incapable of work. Why would that be? I thought, because they have no trust in the system, and they don’t think they will get the benefit, so they don’t want the humiliation.

But someone less bleeding-heart liberal than I might say, because they were chancing it, and knew they would be found out. Jenny said, because they are incapable of completing the form.

I feel my explanation is more plausible. If you were a chancer, you would fill in the form, knowing that you could get the benefit until you got a decision refusing it. However, some might get the form, still need to send in sicknotes from their doctor, and the doctor refuses the sicknote.

Some say they did not receive it, though this is rarely accepted as the post is thought to be reliable. You need some explanation- “My toddler stole mail and hid it behind the settee” might work. They might be trying to delay the refusal by delaying the medical examination, but that has not worked at least since 1992, when failure to return the form was legislated to be grounds for refusing or withdrawing the benefit. So they are not the most offensive chancers, who “work the system”.

Of course different people will fail to return the form for different reasons. They find no motivation to return it, or they are too chaotic to see it as an obligation. But the explanation that they don’t trust the system leapt to my mind. I don’t know, but the narrative fits the vandalising, authoritarian Tories destroying all safety nets and all social services for the vulnerable. Then later I thought of the other explanations, which would fit a Right-wing narrative of a culture of dependency and people falsely pretending to be disabled.

Possibly research could not find out the real reasons. If asked why s/he did not return the form, people might say a reason which appeared to them to be rationalisable, rather than the real reason. They might not admit the real reason to themselves. You could find out what sort of conditions these people had, and ask them their general opinions of the benefits system.

The narrative does not relate to reality, but provides a comforting understanding of benefit claimants. Believing one of those narratives, you would be reassured that your understanding of the world is the correct one. The fact does not confirm your prejudices, really, but you use it for that purpose nonetheless.

It was a shock, though, to hear them talk of ESA like decision makers might, especially after I had discussed my own claim in such detail with Jenny. I am feeling paranoid now.

Toilets in Texas

The Texas House of Representatives, which had previously blocked Texas Senate attempts at a Bathroom Bill, has now passed one. Schools must provide single-occupancy toilets, changing rooms and locker rooms. Schools which now allow trans children to use the locker room for their gender would have to revert. Separate does not mean equal.

The Bill goes to the Texas Senate, which will likely pass it, as the Senate had a much wider Bill requiring all people in Texas government buildings, including schools, to use toilets matching their “biological sex”. The wider Bill was blocked by the House Speaker, who refused to refer it to a committee.

The Texas Governor endorsed the legislation as a priority, and the lieutenant-Governor threatened to block periodic legislation which re-authorises some State agencies, unless it was passed. Without that legislation, those agencies would be shut down.

SB 2078 regulates school districts’ “Multihazard Emergency Operations plans”, considering things like school shooters, natural disasters, and now trans children. The right of each student to access restrooms, locker rooms and changing facilities with privacy, dignity and safety [shall be accommodated by] requiring the provision of single-occupancy facilities for use by a student who does not wish to use the facilities used by persons of the student’s biological sex.

This section may only be enforced by the state Attorney General, but nutcase objectors will still demonstrate against trans children, to force him to act. It does not require or authorise a school to disclose intimate details about a pupil, but using a separate locker room will be noticed.

The stalled SB6, applying to all government buildings, is longer than the Bill concerning emergencies. The Texas Senate discerned an “utmost moral obligation” “to protect the safety, welfare and wellbeing of children… and all Texas residents”, and found that schools providing access to restrooms, showers, and dressing rooms based on an individual student’s internal sense of gender is alarming and could potentially lead to boys and girls showering together and using the same restroom prejudicing a safe and secure learning environment. It is wearying to read of trans children being seen as so dangerous. Trans boys are called girls. The cubicles which prevent me ever embarrassing others in a bathroom are ignored- I am in the presence of others in a state of undress.

All government buildings should require that each multiple-occupancy bathroom or changing facility located in the building be designated for and used only by persons of the same biological sex.

“Biological sex” means the physical condition of being male or female, which is stated on a person’s birth certificate. My birth certificate says I am female, and Texas allows amendment of sex on a birth certificate if ordered by the court.

The Bill which is to be passed makes monsters of children.

Report in Texas Tribune.

Trans v Ultra-Orthodox

A judge has ordered that a trans woman should never see her children, because their Orthodox Jewish “community” would ostracise them.

The fact that made the judge refuse contact for the trans father with her children may be that J, the father, still wants her children to be brought up as ultra-orthodox. The judge recognises all the reasons why it would be good for the children to see their father, and the list is heartbreaking. They have an irreplaceable relationship, a right to family life, they want it and not having it will be deeply distressing causing a deep sense of loss; the children will resent the injustice that their community deprived them of contact, and that deprivation is discrimination on the grounds of gender reassignment; the children’s sense of identity and self worth will be affected if their father is treated as a sinner, unworthy to see them; they won’t know if J is well or ill; they will not get to know or understand J, as the “community” will denigrate her; depriving her of contact is similar to adoption, cutting her out of their lives; if they have contact now, they might get some experience of the outside world, some chance at being able to make their own choices; they may never be able to choose to see their father, even as adults; contact now means that professional help is available; the court has ordered that the father send four letters a year, but the community may prevent even that. It is an appalling list.

Against the father having contact, the court counts the extreme pressure she has been under, which may make her upset in front of the children. That is Kafkaesque. If they saw her upset, they might see how transition helped her, and how she overcame her difficulties. However the judge says that indicates caution but would not by itself prevent contact.

The father’s lawyers argued that the schools should obey the law. If they did so, teaching tolerance and respect, attitudes might change. The judge disapproves of the schools, and will send the judgment to the Department for Education. I hope some attempt may be made to enforce the law on them.

The judge had hoped that a “warm, supportive” community would support children’s need to see their father. When he pointed out that the evidence had dire warnings of ostracism but no examples, the mother’s lawyers produced statements showing that child victims of sexual abuse had been ostracised. He told them he did not think they could be that monstrous, and they desperately scrambled to prove that yes, they were.

Even though he heard evidence that Jewish law could tolerate trans people, he accepted that this particular community could not. The community is proved to disregard justice, and the welfare of the children. The community all say they will continue their discrimination and victimisation. The father accepts the community is like that, but hope it can be made to change, but even educated people are unyielding and there is no evidence anyone in authority in the community wishes it to change.

The judge recognises that sexuality and gender are not a matter of choice. Trans folk have a right to be recognised and respected as such. “Sin” is irrelevant to law. The children could adapt to their father’s change, but the adults involved could not. The children would be taught in the community that their father was a sinner, and in the outside world that she was an acceptable person. They could never speak of their father to their friends. It would put too much pressure on them. It is too wide a gulf for them to bridge. They would have no support: everyone would take the community line. They might be ejected.

The judge says, I have reached the unwelcome conclusion that the likelihood of the children and their mother being marginalised or excluded by the ultra‐Orthodox community is so real, and the consequences so great, that this one factor, despite its many disadvantages, must prevail over the many advantages of contactThis outcome is not a failure to uphold transgender rights, still less a “win” for the community, but the upholding of the rights of the children to have the least harmful outcome in a situation not of their making.

Orthodox Judaism and trans

You have heard of trans women not being able to see their children. With the difficulty of transition, some of us cannot take on that additional fight. One I knew killed herself after being told her wife would not let her see her children, and at the funeral was erased: she was referred to only by her former name, as if a man had died. Now the English courts have ruled that a trans woman should not see her children, because they would be ostracised by their Orthodox Jewish community if she did. She can write four letters a year to each child.

To write this post, I have read the detailed statement of evidence and law by the judge, but not his own assessment and conclusion. It is clear to me that any child brought up in such a “community” will suffer significant harm.

People in this community are not responsible for their own lives. “Personal decision making is minimal, with all major concerns being discussed with one’s rabbi” [see paragraph 85 of the judgment]. J, the father who has transitioned, [58] knew at the age of six that she was different. She could not speak to anyone, and prayed to God to make it go away. Children in less controlling circumstances feel the same: I did not speak to anyone until aged 18. After fathering five children and twice attempting suicide by taking pills, she began to speak to a therapist outside the community. Broken Rainbow, the LGBT domestic violence charity, gave her confidence to leave. It has now closed down.

The community sees transition as “a defection from core values, and expressive of hostility and disrespect” [106]. The community cannot accept how badly it hurts its members, so blames those who leave.

The court-appointed Guardian accepted that within the community, the children could not make their own decisions about seeing their father [136]. Exposure to the outside world is seen as dangerous to the children, who are taught to see it as hostile to the Jewish community. The mother does not speak of J at all.

Children exposed to “outside influences” may be ostracised. The judgment gives examples of other divorced couples. One mother could not get her child into the school she wanted. “The school would not risk the influences the father’s contact with the child might have on the rest of the student body.” This, note, is the case of a straight parent. In J’s case, her son A’s head teacher said that if A met J he feared A’s religious commitment could be compromised.

In a case where a child was sexually abused within her family and the wider community from age 11-14, she was fostered through secular social services. She was not allowed to talk to friends, whose parents said they could not risk their children hearing about “things”.

J could not bear the thought that her son, aged 12, would be faced with her unexplained disappearance, so she told him fifteen months before that she could not carry on with the marriage, and that she was leaving five days before she did. This is held against her. The pain she has suffered, in being unable to be herself, attempting to conform, finding conformity impossible even though she knew how much it would cost her to transition, and now in transitioning and suffering all that loss, is used against her to show that she should not have access. Telling her son was seen as very bad indeed. Her own needs overwhelm her [120], she cannot prioritise the emotional needs of the children, which militates against contact.

Their interpretation of the Torah is completely against transition. Deuteronomy 22:5 forbids dressing in the clothes of the opposite sex, and Leviticus 22:24 forbids castration. For all religious purposes J will be considered male, will be required to give a Get, or religious divorce, to her wife [93], and as most social activities as sexually segregated would not be allowed to join either the women or the men.

The community fought viciously against J. Having so let her down, they project all their wrongdoing onto her. They threatened violence [61]. They refused to consult her about anything to do with the children, and would not accept maintenance payments from her. They rebuffed all her attempts at contact [25]. They made allegations that she had sexually abused her son aged 4, though the judge says “There is no credible evidence that J has behaved in a sexual manner towards D or any of the other children” [32].

The schools responded particularly badly. Minutes of a “Team around the children” meeting show their priority was to protect the community and enforce its “cultural norms around gender and sexual identity” [33]. The schools’ duty was to “uphold the religious ethos”. Other parents would “protect” their children from information shared by J’s children.

Fortunately, schools are restricted in England from so betraying their pupils. I am horrified that any still persist, but at least one has been shut down. It is unlawful for a school to discriminate against a pupil because of their association with someone transitioning gender [48]. The education regulations include a curriculum obligation to encourage respect for other people, paying particular regard to the protected characteristics set out in the 2010 Act [50]. The school was forbidden to enroll new pupils because it did not enable pupils to learn of the existence of trans people. It must encourage respect of us, and other groups which suffer discrimination. Why the Department for Education is not shutting down other such schools, I do not know.

The law supports contact for parents. It is to be presumed that contact furthers the child’s welfare [38]. Children are entitled to the “love and society” of both parents. Court of Appeal cases on trans parents say children should have professional help to learn of their father’s transition so they can adjust to the change [41]. However the Guardian noted that required “a solid structure of support” for the children, wider than the nuclear family [129]. And yet J cannot see her children.

The eldest son is angry with his father. He blames J. “If he cares, he will leave me alone” [139]. He said his father had done him damage. The child cannot recognise that the damage comes from the Community failing to accept how human beings are, and imposing such terrible control.

You can download the judgment from this page.

Trans discrimination

Discrimination because a person is trans is gender stereotyping. It is based on the thought that a man should not behave in a particular way. Here is Glenn v Brumby: Sewell Brumby sacked Elizabeth Glenn from her job in the Georgia Office of Legislative Counsel because of prejudice, claiming Glenn’s intended gender transition was inappropriate, that it would be disruptive, that some people would view it as a moral issue, and that it would make Glenn’s coworkers uncomfortable. Previously, he had said that “it’s unsettling to think of someone dressed in women’s clothing with male sexual organs inside that clothing,” and that a male in women’s clothing is “unnatural.”

It is striking to see someone state their disgust so clearly. Brumby was open about this in his evidence: he testified at his deposition that he fired Glenn because he considered it “inappropriate” for her to appear at work dressed as a woman and that he found it “unsettling” and “unnatural” that Glenn would appear wearing women’s clothing. In the UK, employers would probably find some pretext for dismissal, knowing that such prejudice was frowned on. Under the particular law pleaded, Brumby’s defence could succeed if he had an “exceedingly persuasive justification… that there was a sufficiently important governmental interest for his discriminatory conduct”. He said women in the office might raise court action because they did not want to share a restroom with Ms Glenn, but in fact their office had only single occupancy restrooms.

The tradition of romantic paternalism puts women not on a pedestal, but in a cage. The courts seem to think there is a possibility that “reasoned analysis” may justify gender differences, but government acts based on gender stereotypes- which presume that men and women’s appearance and behavior will be determined by their sex- must be subjected to heightened scrutiny because they embody “the very stereotype the law condemns.” So there will be debate in court, but the discriminator must show a real reason, not an assumption based on a stereotype. Including the stereotype that men should not wear skirts.

So, discrimination against a transgender individual because of her gender-nonconformity is sex discrimination. That would include any trans person, not just someone intending to transition.

In the Equality Act 2010, Scots and English law made a fundamental difference between discriminating on the ground of gender reassignment and on the ground of sex. The Act refers to “transsexual persons”. The union Unison’s website is confused: it translates this to “transgender” which it defines as those whose gender identity or expression doesn’t conform to the sex they were assigned at birth which could include non-binary people, or cross-dressers who want to dress female at work occasionally, but still refers to the laws on gender reassignment. To be protected, you have to have decided to live permanently as the other sex.

Could we use the protected characteristic of sex, and allege any objection to a man in women’s clothes was sex discrimination? Unfortunately, the Court of Appeal says that different treatment is lawful: to be unlawful, treatment must be “less favourable”. So a man can be required to wear a collar and tie, and have short hair, and a woman required to wear a skirt, if they come into contact with the public who might judge them on their appearance, and judge the employer because of them. You have to be smartly dressed because you meet the public. An Employment Appeal Tribunal said, there were in force rules restricting wearing apparel and governing appearance which applied to men and also applied to women, although obviously, women and men being different, the rules in the two cases were not the same. A recent case when women were not allowed unshaven legs, even when wearing tights, might be less favourable as more onerous, but you could not be certain.

Glenn v Brumby.

An enmeshed relationship

A woman feminises her son against his nature, subjecting his will, because of her own emotional disturbance. A court rescues him, and places him in his father’s care, where he develops normal boyish interests. These demonstrate the harmfulness of the mother and the rightness of the rescue. That is the story you get from Mr Justice Hayden, who ordered the new care arrangements. It justifies greatly restricting the contact the mother has with the child- they must be supervised.

How would the mother, referred to as “M” to preserve anonymity, get her child J to wear a pink headband and nail varnish, leave alone present entirely female, unless J is a trans girl? Why would she?

CAFCASS, the children and family court advisory support service, investigated, and recommended that F[ather] not have contact with the child, as it would cause M and J “potential emotional harm”. Social services had anonymous referrals saying M was mentally ill and that J might access the skunk M smoked in front of him. The social services child and family assessment, completed in January 2015, concluded that there were no evident concerns suggesting that [J] was at immediate risk of harm. [M] is very clear that she is supporting [J] with whatever choices [J] makes and she presents with a good understanding of [J]’s needs. There were no concerns from the social worker regarding [M]’s approach to [J]’s gender presentation, and had appropriately taken on board support from the charity Mermaids. Upon completion of the assessment, no further action was taken by Children’s Services.

The judge finds this irrational and unsustainable, and draws attention to the schools’ concerns, that [J] behaved no differently than the other children but they felt that [M] was unwilling to accept this and on occasions she reduced a teacher to tears due to her ‘forceful and confrontational’ manner…in class, [J] doesn’t display any differences to the other boys.

What constitutes “difference”?
Who judges, and what are their expectations?
If J tries to conform in any situation, rather than following his own unconstrained wishes, what will he do?

One referral to social services said M was unwilling to accept help from local child mental health services.

The judge condemns social services strongly, saying the cry for investigation went unheeded. Social services combine both naivety and professional arrogance. However, social services reported those concerns were in relation to [J] presenting as a girl rather than concerns in relation [J]’s welfare and the care that is provided to [J]….the manner in which [J]’s gender identity is responded to by professionals could also cause emotional difficulties, as had been evidenced in research around gender non conforming children cited earlier. It appears that [M] is genuinely attempting to protect [J] from the impact of this.

M has accessed support from the Tavistock Centre, the child gender identity service. The judgment shows no evidence from them, only from psychologists. The first, Jean Sambrooks, refers to J as “she”, but the judge dismisses this, though he says that It is entirely counterintuitive to suspect that a boy who is consistently presenting as a girl may not truly wish to do so and may have been forced or induced into performing such a role by his mother. He draws attention to her concerns about the way M communicated, though Ms Sambrooks considered that the impact of these concerns was most likely to have alienated professionals to the mother’s genuine concerns.

The judge finds M highly manipulative and controlling with strong opinions, prone to exaggerate and distort, even “oppositional”. A mother defending a trans child from disbelief might need such qualities. He says As I have heard this case I have noted that these illogicalities often characterise M’s evidence. Nobody has doubted that M is both articulate and intelligent and so the reasonable inference is that she must recognise some of the illogicality of her own statements. I consider that she has learnt that by creating ‘confusion’, to use Ms Sambrooks’ word, amongst the professionals, she generates a situation in which her own distorted beliefs gain greater traction and are able to prevail with less effective challenge.

There were delays, which the judge reports were caused by M’s unjustified challenges of lawyers involved, and refusal to communicate. The family court transferred the case to the high court because lack of information of the child’s whereabouts raised concerns for his welfare. In November 2015 Mr Justice Hayden made a variety of highly prescriptive orders, reinforced by a Penal Notice. J, then five, was living in stealth, all the time presenting as a girl and registered at the GP as a girl. M said the Tavistock centre had advised this, but the judge says Though I was by no means certain, I very much doubted that the Tavistock would have given this advice in respect of such a very young child. I am amazed no-one asked them. Instead, the judge sought their file.

There was a hearing before Mr Justice Hayden where he ordered that J be delivered to F. He portrays M as controlling. What was perfectly clear however and requires emphasis is that M was determined that J should live entirely as a girl. At only five years of age that did not strike me as offering J choice or even the opportunity to express any ambivalence or confusion. I was also entirely satisfied that whatever choices J made and however he presented, he would be loved and cared for and his choices respected in F’s care.

The February hearing was very stressful for M. However what struck me forcibly, both then and indeed at this final hearing, was that M spoke of J only in the somewhat opaque and convoluted argot of social work and psychology. She offered an impressive, intense and highly articulate evaluation of the problems faced by children with gender dysphoria but she conveyed no sense of J’s personality, temperament or enthusiasms, notwithstanding frequently being encouraged to do so. Repeatedly she struck me as a professional witness giving evidence about somebody else’s child.

I was also left in no doubt that M was absolutely convinced that J perceived himself as a girl. M’s case on this point has not always been either consistent or coherent, but my overwhelming impression is that she believes herself to be fighting for J’s right to express himself as a girl. She has told me how J ‘expressed disdain for his penis’. I think it accurately summarises her position to say that she perceived it to be her responsibility in the face of widespread public, professional and indeed judicial ignorance to promote J’s choice of gender.

Why on Earth would M want to manipulate a child who was not trans into presenting as a trans girl? The judge does not say. How could she do that? Continue reading

Was this child trans?

The Press Association reports that a child living with their mother, as a girl, has been removed from her care by a high court judge and given to their father. Now, they is settled with their father. The judge says,

“I am entirely satisfied, both on the basis of the reports and [the father’s] evidence at this hearing, that he has brought no pressure on (the boy) to pursue masculine interests. [The boy’s] interests and energy are entirely self-motivated.”

The boy’s mother “told me that [he] was ‘living in stealth’ by which was meant, she explained, that he was living life entirely as a girl”, said Mr Justice Hayden. “He dressed, at all times, like a girl and, it transpired, had been registered at a new general practitioner’s as a girl.”

The judge added: “I was also left in no doubt that [the mother] was absolutely convinced that [the boy] perceived himself as a girl.” Hayden said his “overwhelming impression” was that the woman “believes herself to be to fighting for [her son’s] right to express himself as a girl”.

She said they had expressed disdain for their penis.

The judge heard reports from a psychologist and social workers. “I consider that [the mother] has caused significant emotional harm to [her son] in her active determination that he should be a girl.” 

The father had started litigation because he had not had contact with his child. They had been registered with a GP as a girl, but not referred to the Tavistock clinic: instead, the GP had requested that a social worker visit.

The Sun’s angle was that social workers were incompetent, rather than underfunded. Hayden J: Concerns were dismissed on the basis that it was the other agencies who ‘did not have a full understanding of gender non-conforming children’. In fact, it was (social workers) and senior managers whose understanding was lacking.

The mother had taken the child out of school.

All the papers refer to the child as a boy, with male pronouns. Having read the reports, I tend to agree, so now will too. I hope the judge was open to the possibility that the child was a trans girl. There is no mention of the child’s own opinion, but as he is seven it appears the judge has relied on reports.

I hope he has got it right. The Sun reports concerns about the mother’s mental health, from some source it does not name in a report to the police. Other papers do not mention that: it appears they think impugning her mental health is not justified from the report. I would go to the source, the Associated Press, but it does not makes its reports freely available.

Children are malleable. They can be forced to present as the other gender. But we don’t know: why would the mother be certain her child was a trans girl, if he were not? Is she charged with abuse or neglect? Would a child, taken by the court from her mother and given to her father, be able to assert she was a trans girl even if she wanted to?

I want to post this quickly, so will google more, but have been reading a Daily Mail report from 2012. Lorraine Candy, editor of Elle, allowed her son to dress as a girl until his fifth birthday, but then told him this must stop- because she thought he would be ridiculed. “He was mildly upset but not unduly worried”, she writes. How much cross-gender play by children goes to gender clinics? How much do parents influence it?

I am certain we would be better off if children were encouraged to play as they wish, including cross-gendered. Putting on a dress does not mean your son will have a vaginoplasty later. Why restrict children at all?

discuss the court judgment here. Read how the judge explains how, and why, the mother could force a cis boy to live as a girl.

Bodyache

The symptoms described were simple, aches and pains constantly all over the body restricting all movement and requiring frequent attention throughout the day. This made the woman- it was always a woman- unable to work, so entitled to incapacity benefit or income support, and because she needed care entitled to disability living allowance.

I can’t remember how many of them got the benefit. We chucked them at the tribunal, in the hope that some would stick. Many had Dr D. for a GP. He saw anyone who dropped in, rather than giving appointments, and disappointed his more articulate patients: one said to me, “He had his prescription pad out before I sat down”. He would for our standard fee of £50 write that his patient could not walk fifty yards, could not stand for ten minutes, needed help up from a chair, etc, but give no details of why beyond a bare diagnosis which was often merely “bodyache”, and so though we argued “The GP knows his patient far better than someone who examines her for the first time, for ten minutes” the evidence was of little value.

One ritual I saw over and over was the child or child-in-law encouraging the woman as she painstakingly traced out BIBI or BEGUM on the consent form, so we could write to the GP. Sometimes, organisations would insist on original consent forms rather than photocopies, so this had to happen more than once. It is lawful for the relative to support the wrist, but no further up the hand.

I have no idea how much the woman actually did, at home with family, or whether she actually had the care they claimed.

And yet I am happy with my role representing these women, for it was my role to translate what they said into legally effectual claims and appeals and place the available evidence before the tribunal or decision maker. If they had lost recently, I would refuse to appeal again, as I would judge that the likelihood of success was so low that it was not worth my time, but I felt all were entitled to one try, and after a year, perhaps a second. I have no particular record of the proportion of Dr D. bodyache cases who won, but some did.

And I am happy that they would get benefits. “Bodyache” sometimes seemed quite hopeless to me, at least possibly a psychosomatic expression of misery and despair which enabled the person to retreat to her home, stare at the walls, and be looked after. I have no idea of the family life of my clients, who were all individuals, who may have presented a face to me, the careful account of help needed known to mean entitlement to money. I feel few were simple frauds, though; they were doing what they could to better their situation, in the way that they saw.

Margaretta Angelica Peale, Still life with watermelon and peaches

Transgender Equality- the Government’s response

The Government says Equality is very important to us- but limits what it will do to achieve it. Often, they do the minimum required under international obligations, which is why leaving the EU is so troubling.

The minister writes, A commitment to equality is at the heart of this Government and is essential to building a strong economy and a fair society. We want to build a society that celebrates and benefits from the talents of everyone; ensuring fairness, protecting the most vulnerable, and prioritising equal opportunities for all. We know that transgender people face continuing transphobia, increased mental health issues, discrimination in the provision of public and private services and bullying in our schools. That is why I made transgender equality a key priority for my department after the General Election last year. 

Yet. The committee recommended that discrimination against trans people be made unlawful. At the moment, I am protected because I have transitioned to female, and anyone who decides to do so is protected. The committee wanted that extended to anyone with a gender identity not male or female or as assigned at birth: those who are transsexual but feel unable to transition, as well as those with other identities. The Government responds, The provision of a protected characteristic of “gender reassignment” in the Act is fully compliant with our obligations under the Equal Treatment Directive (2006/54/EC). They do the minimum required. They say that others might argue they are falsely perceived by the discriminator to intend to transition.

They refer to their guidance to employers on recruitment and retention of transgender staff. It correctly states that When people feel valued by their employer for the contribution they can make to the organisation as an individual, regardless of their personal (or protected) characteristics, they are more likely to:

  • Feel engaged and enthusiastic;
  • Go the extra mile and expend discretionary effort;
  • Have better attendance;
  • Be a better team member;
  • Stay longer and offer loyalty; and
  • Talk about their employer in positive terms.

However, that guidance then defines “gender reassignment”, showing that anything other is not protected.

Similarly, the Committee recommended that there be no exceptions. The rules that discrimination against transsexual people is legal when there is a “Genuine Occupational Requirement” that a worker be cis muddies the waters. It makes certain employers more likely to discriminate, and more likely to defend a court action on discrimination. The Government is keen to ensure that that law in this area operates fairly and is not abused, therefore we are keen to receive further representations and evidence on the availability and use of the exceptions in the Equality Act 2010 from all affected parties to take into account for future policy discussions. That is, they will do nothing about this yet.

Charges for using Employment Tribunals, the abolition of the discrimination questionnaire which could obtain evidence of discrimination, the greater likelihood of costs being awarded against claimants who lose and the cutting of the Equality and Human Rights Commission have all made equality law less valuable, because it is more difficult to enforce.

The Response (pdf)
Guidance on employment of transgender staff (pdf).

Justine McNally

Justine McNally was a confused teenager. They used a male avatar, Scott Hill, on a social networking game, and when they was thirteen they met M, who was a year younger, through that game. Just after M’s sixteenth birthday, they met in person. Sexual activity took place. Was it a sexual assault?

We don’t know if Justine/Scott is trans. From the Court of Appeal judgment, The pre-sentence report spoke of a history of self harm and confusion surrounding her gender identity and sexuality, which were resolving. From a statement to the police, aged 13 they used a male avatar “because it made her more comfortable”. The psychologist said that there was evidence of rationalisation, distorted thinking processes and victim-blaming.

The judges did not find the appellant entirely credible; but, confusion over gender identity and sexuality would make honesty very difficult. There is nothing shameful about homosexuality or transsexuality, but teenagers receive the message that there is. Internalising that, unable perhaps to admit truth to ourselves, we start to make statements which we hope might be acceptable, even if they are inconsistent- to ourselves as well as others. You have to come out to yourself before you can come out to anyone else. “It made me more comfortable” is a thing I might feel able to say before I would definitely have said, “I am trans”.

When they met, Justine/Scott wore a strap-on. This is teenage exploration: what is it like? How does it feel? What do I want- for it is not what the culture tells me I should want. Even straights find this difficult.

Unless M had consented, or Justine had reasonably believed she had, the sexual activity is unlawful. In the Sexual Offences Act 2003, a person consents if [s]he agrees by choice and has the freedom and capacity to make that choice. Certain deceptions, according to the judges, vitiate that capacity. The evidence relating to “choice” and the “freedom” to make any particular choice must be approached in a broad commonsense way, they hold.

When was consent vitiated? In Sweden, Julian Assange promised to use a condom, but did not. In an English case, a woman consented on the basis that the man would practise coitus interruptus, but he allegedly intended to ejaculate inside her. Both would be rape in English law. However, In reality, some deceptions (such as, for example, in relation to wealth) will obviously not be sufficient to vitiate consent. Failure to disclose HIV status did not vitiate consent, but a deliberate false statement that the accused was HIV negative might. The accused’s false claiming to be unmarried, or to be rich, does not vitiate consent- beyond the judges’ “common sense”, or prejudice, it is not clear why.

While, in a physical sense, the acts of assault by penetration of the vagina are the same whether perpetrated by a male or a female, the sexual nature of the acts is, on any common sense view, different where the complainant is deliberately deceived by a defendant into believing that the latter is a male. Assuming the facts to be proved as alleged, M chose to have sexual encounters with a boy and her preference (her freedom to choose whether or not to have a sexual encounter with a girl) was removed by the appellant’s deception.

A lesbian pretending to be a boy has no defence. I find this an injustice, at least in the case of hurting, confused, self-harming Justine McNally. She is the victim of society, not the guilty party.

Trans people have the difficulty that while I assert that I am female, the law stated that I was male, until I got my gender recognition certificate. When I expressed myself female before transition, there was no deliberate deception. The law cannot have it both ways. The law said I was male; however in that case there are two groups of people who express female- women, and people like me. So if a prospective partner saw me presenting female, the possibility should be in her mind that I am that sort of person. I did not dress female to deceive anyone- I dressed female because I am who I am.

After my GRC, there is certainly no deception. I am female, according to law.

The problem is that the law considers the choice of the complainant. What would make the complainant change her/his mind? Wanting sex with a woman, but not a trans woman, might. That might make people imagine that “the sexual nature of the act… is different”.

The Crown Prosecution Service provides guidance on whether a charge could be proved.

Whether there has been deception as to gender will require very careful consideration of all the surrounding circumstances including:

How the suspect perceives his/her gender;
What steps, if any, he/she has taken to live as his/her chosen identity; and
What steps, if any, he/she has taken to acquire a new gender status.

Now, my gender is Clare. Some would see me as a man, and I won’t worry about that too much cos life’s too short. Some see me as a woman, and that makes me happy. Some see me as a trans woman, and that is not much better than seeing me as a man, frankly. If I explained that to a policeman, that might make my position worse than someone who said “I’m a woman”.

All steps to live as the chosen identity should matter. Before I decided that I would transition, I dressed female to see if I could bear it; if the abuse had been too great, I might have had to just present male. In my own mind, that was tied up with the question “Am I transsexual?”

The CPS also must decide whether prosecution is in the public interest. They should consider Whether the offending occurred as a result of the suspects uncertainty or ambivalence about his/her gender identity; but that did no good to Justine McNally.

What about “reasonable belief” in consent? If you are a trans woman and you assert to everyone, “I am a woman”; and you don’t make any attempt to hide your body from the sight of your partner; you are probably OK. The people who are actually prosecuted are confused and hurting, in shame and fear of their identity and sexuality. That is, the most vulnerable of us are the ones most likely to be criminalised.

TItian, the punishment of Titius