Trans people in court

Since December, it is harder to be trans in an English court.

The Equal Treatment Bench Book is a 566 page guide for judges on how people appearing before them may be disadvantaged, and how the judge might mitigate their disadvantage. For example, it cites a study where mock jurors gave harsher punishments to fat people accused of crimes than thin people. Trans people are equal under the law, and the law should deal with what has been proved, not punish us for who we are.

There are two pages on naming systems. Mispronunciation is disrespectful, and a judge should take care to avoid it. The book explains different naming conventions. Judges should ask what is the personal name and family name. I am perturbed that there is a perceived need to tell judges not to use the term “Christian name”, but that may just indicate how comprehensive the guide is.

Judges should not reduce court users’ confidence in the court’s authority or impartiality, but act to counter how others’ prejudice may slant the administration of justice. There was a major revision of the Book in February, and an interim update in December, most of which was devoted to considering the rights of “gender critical” people against trans people.

Much of the advice on trans is designed to prevent someone in stealth being outed. This is problematic. Most people read me quickly. I am open about being trans. Yet I still do not want anyone else mentioning it unless it is entirely relevant. The judge can restrict reporting of the case if necessary. The Book quotes a senior High Court judge: “disclosure [of trans history] should not be permitted… where it is unnecessary and irrelevant to the issues”.

The book says terminology is shifting and uncertain, and some trans people may not want to be called trans, believing it irrelevant.

It is dispiriting to read in the February revision a long account of the discrimination we suffer, but I am glad judges might. The update added the Transactual trans lives survey 2021. 99% said they had experienced transphobia on social media, and I can’t see how anyone might use social media without experiencing transphobia. A TUC survey found half the trans respondents had experienced bullying or harassment at work, and 30% had been outed against their will. In a poll of 1000 employers, 43% said they were unsure if they would employ a trans person- that is, they openly stated they would consider breaking the law. The book also gives statistics on anti-trans hate crime, and suicide.

The book says nonbinary people are not protected, though it cites the case Taylor v Land Rover in the appendix on the Equality Act. As an Employment Tribunal case, that is not even a binding precedent for Employment Tribunals.

I would take issue with the President of the Supreme Court’s explanation of the traumas faced by trans people. It’s not “the overwhelming sense that one has been born into the wrong body”, it is a conviction that I am of the other sex, or a desire to be treated as or express myself as the other sex. Lady Hale refers to “the long and complex process of adapting that body”. That is surgical essentialism, and I deny it.

The Forstater case has done a great deal of damage. The Employment Tribunal decided her beliefs did not fulfil the fifth test: beliefs “must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others”. The Employment Appeal Tribunal disagreed. Much of the problem was that there was little evidence heard in the tribunal of the repellent nature of her beliefs. Other anti-trans campaigners express themselves freely on Twitter and there would be abundant evidence available of how ridiculous and abhorrent their beliefs were.

Because of the case, the update has made additions. It still says trans history is usually irrelevant. It explains that “revealing someone’s trans identity publicly can have serious adverse consequences on their life”. That’s not the issue for me. Calling me trans is like irrelevantly calling a Black person Black. It draws attention to the thing for which I face prejudice. So it is prejudicial. The book explains deadnaming “may be considered” highly disrespectful and may be inhibiting and humiliating to a witness. Formerly, it said deadnaming “is” disrespectful.

For the first time, the update claims a witness may have a “right” to misgender or deadname. The judge should establish this at the start of the hearing. The book gives reasons why a witness should not do this. The trans person may be stealth, may have a GRC, may not want to go to hearing if they would be outed. If trans status is public knowledge, there is less protection. Again, for me, being called a “man” in court would be humiliating, however many believe I am one. It calls the characteristic which has most affected my life, a worthless fantasy.

The example of a witness being allowed to deadname and misgender is problematic. A victim of domestic abuse or sexual violence may give evidence “in accordance with the victim’s experience and perception of the events”. But, when the witness gives evidence, the guilt has not been decided. To call a trans woman a man is prejudging the issue.

Deadnaming is like calling Muhammad Ali “Cassius Clay” to his face, indicating disrespect for his Islam and his right to self-determination. Deadnaming is insulting. A victim should be able to use the Accused’s real name, unless she has a prejudice which affects her reliability as a witness. For example, the pre-existing hatred and revulsion Maria MacLachlan showed for Tara Wolf made her misgender her.

The update explains “Gender-critical” as a belief that sex is immutable and binary, and that including trans women in the definition of women undermines protections for cis women. It often includes a belief that trans people are irrational and violent, but that is not stated. It says the belief is protected even if it offends trans people and allies, unless “they propose to destroy the rights of trans people”.

The Appendix on the Equality Act explains the Forstater case, though recommends reading it. The phrase given for an unacceptable gender-critical belief, is that it “sought to destroy the rights of a trans person”. That is helpful. Many who would call themselves “gender critical” want to roll back trans rights, which are robust in law. The addition explains that beliefs are different from behaviour. Misgendering may still be harassment, whatever the perpetrator believes.

Some additions are otiose. “The effect of the GRA does not impose recognition of the acquired gender in private non-legal contexts and it cannot rewrite history”. Well, no. Lots of people think I am a man, and I don’t want the courts to intervene unless they do something particularly objectionable about it. But the effect of the sentence is to deny reality. I am a trans woman. I deserve respect as a woman.

The update adds an explanation that “Some people feel strongly that they do not wish to be described as ‘cisgender’ or ‘cis’.” Such a belief will usually be part of a set of beliefs including repellent prejudice, which is not worthy of respect in a civilised society, but it has got into the Bench Book. I suggest people use “Non-trans” instead.

Explaining the Equality Act, the February revision said the term “transsexual” was considered unacceptable. The update adds “by many people”. Well, if there is some comprehensive legal definition of sex and gender made, then I am transsexual, and my sex is female. The psychiatrists said so, after all.

The update is a response to the Forstater case. It is just part of the slow chipping away at trans rights and respect for trans people which the right wing culture war is achieving.

A Lonely Transsexual

The Lonely Transsexual is a fascinating blog. Some of her/his writing makes me want to punch the air and shout YES! Some simply misses the point. She gets herself in some sad fights, though.

Pronouns- I will use “she”, as she has a diagnosis of gender identity disorder and transitioned, was a husband, and identifies as transsexual. However she also says she is a man. When she says she is gay I interpret that as attracted to men.

She thinks pronouns should refer to sex not gender. She is happy to be called “she” as long as it is not coerced. She is a man and does not object to “he” though it reminds her of her medical condition, gender dysphoria, so hurts. I see no difficulty in calling gender variant AMAB people who transition “she”. That does not mean that you can’t make assumptions with other gender variant people. Generally, it’s courteous to use the pronoun people choose, and while someone might have suggested the pronouns on her list from xe to per, most people seem to use he she or singular they.

She learned to hate herself as an Evangelical Christian, but has now found an accepting church.

What I like, first. Being trans is about a mismatch between gender identity and biological sex… Biological sex should not determine gender roles and stereotypes however right now it does.

Well, yes. There are gender variant people. Some of us express ourselves using gender stereotypes of the opposite sex. Some assert our sex but resist or subvert the stereotypes. Some resent the term “gender variant”, saying concepts of gender are incoherent and without meaning or value.

However I disagree with her when she says transvestites have legitimised themselves by coopting transsexualism and intersex, and what was a fetish has become an identity. I am sure there are still men who dress wholly or partly in women’s clothes and would not transition. My friend was sick of cross-dressing all the time after a week. He used women’s loos when dressed female but would not use a refuge.

Most people who would transition want some surgery and hormones. There has not been some great takeover by “transvestites”. Possibly more gender variant AMAB people are transitioning because they think it is more acceptable.

“The” Lonely Transsexual? So many of us are lonely. It is a difficult path. We distrust cis people and do not get on well with other trans women, because they reflect our insecurity and difficulty back to us.

She writes of her hatred of her penis. She could not consider sex. I don’t think that puts her in a separate category. Some people hate the thought of infertility or body alteration. You can be trans, even “transsexual” according to doctors’ definitions, and not want surgery.

A transwoman is no more a woman than a seahorse is a horse. Sigh. Arguably. But we exist, and if we are harmless making an exception and allowing us in women’s spaces seems worthwhile, so that gender variant people may find our way of being variant.

She doesn’t pass, and has stopped trying to. She uses makeup to express herself, and is fine that no woman would use it like that. This is brave. No longer worrying about fooling people into believing she is a cis woman allows her better to be herself. I’m not doing it for you! Today I am sporting a two color eye makeup in blue and purple, blue eye liner and blue lipstick! It’s my look and style and I like it. This attracts hatred: she was standing at a crossing and a middle aged woman hissed “pervert” at her.

I love the bravery. She is not fitting in. She has found a new way to be gender variant.

Yes AMAB people get sexually aroused by dressing female. But if you see one so dressed in the street they are probably not aroused. It makes tucking difficult. They probably do it too much to be aroused all the time.

She is read as TERF. A commenter writes, I recognize the risks that you and the high profile women’s rights advocates are running in this fight. They run no risk beyond being despised for the exclusion they preach, but incipient martyrdom is so much a part of their identity. I feel Lonely TS could be more challenging to such commenters. Being stuck in the binary with the trans-excluders is a waste.

Is she British? She knows the gender marker on the UK driving licence, and goes into some detail on the Gender Recognition Act, but does not know the Disability Discrimination Act 1995 was superseded by the Equality Act 2010 and uses US spellings- color, license. I find this odd. An American might be glad to hear of the GRA but not want to go into the minutiae. And I would expect most churches over here to accept a trans woman, except the most extreme Evangelicals.

I wanted to find out whether she uses men’s, women’s or disabled loos, but don’t need to know. I am sure she feels guilty and conflicted or frightened whichever she uses, and that is a shame. She is concerned for the rights and feelings of others, and I wish she knew she has a right to exist, in her unique way.

Post-structuralised

Trans politics is pretty messed up atm. Someone used the abbreviation HPW, which is hard to google- it did not mean, in context, High-Performance Working or the Highways and Public Works department of the Government of Yukon, but Hairy Panty Wearer. Someone referred to a hierarchy of trans from post-op at the top to HPWs at the bottom.

Googling eventually led me to this PhD thesis, by Sylvia Morgan: Constructing identities, reclaiming subjectivities, reconstructing selves: an interpretative study of transgender practices in Scotland. Someone identifying as a “cross-dresser” looked down on a HPW: A guy who has hairy arms, chest, legs and he slips on a pair of pants. Some of them really scare me…to me that’s kinky. And in my opinion, perversely sexual… the HPW is odder if you like than I am…I don’t pass judgment any longer. Really?

I wonder how a HPW would feel if he woke up in hospital. I don’t think anyone would identify as a HPW, which is why I don’t like the term. Possibly, underwear fetishist, or even bloke who wears frilly knickers. And, why ever not, if he wants to? And, unless he wants the rights of trans women without any desire to feminise his appearance in any way, what’s the problem?

That hierarchy, though- it could be either way up. HPW at the top- “I may wear panties but at least I don’t go out dressed female, that’s perverse”, “I may live full time female but at least I don’t want my balls cut off”- or post-op trans at the top, validated by the doctors, really a woman. Either way could be validated by how much the person wanted to fit in with normal society, either as a man or as a woman. If they are ordinary human desires, each group would be separate, and seen as better if they had managed to realise their wishes- so a HPW or post-op woman would be above a person who wanted to wear panties but never had the courage to acquire any, and someone who wanted to transition but hadn’t. If they are suspect human desires, you would be judged harshly if you had given them priority over acceptable wishes like family and career. It’s easy to find people to look down on, if you feel you must.

A twitter account called “Transsexual Voices Matter” said only people with a diagnosis of gender dysphoria who have had genital surgery are entitled to legal and societal protections, and transgender people are spoiling it for them. Or something like that. I went there to quote them verbatim, and find the account gone. Here’s a bit quoted somewhere else: GRA reform would only result in the increase in crime and litigation, make our society less safe for everyone and cause a tremendous damage to the hard won good social reputation of the decent transsexual women. We should try to fit in, that is. I suppose, up to a point…

Dr Morgan writes, many participants perceived themselves and their gender identities to be authentic, coherent and consistent over time, even while this was simultaneously being destabilized by the evident ambiguities within their narratives. Participants’ understanding of their identities mostly challenged the notion of the postmodern self as decentered, multiple, the subject fragmented.

That contradicts the post-structuralist view of “socially constructed and constrained subjectivities,” though a phenomenological viewpoint would treat people’s subjective experiences of their own identities with respect. I have just watched H’s video in which she identifies as post-structuralist, and it occurs to me that her repeated averral that “You know I see you as a man, don’t you” is an actual attempt to mould my conception of myself.

Though Tina says non-trans people don’t have to suffer others challenging their gender, saying “no you’re not”. They might say you’re not doing it right.

H talks of “performing” gender, with her long hair and her skirts (I don’t think I have seen her in trousers) but I think of it as “signalling” gender. That could be a matter of trust: she performs, so that men underestimate her and don’t know what’s hit them, I signal and imagine that they will respond in a correct co-operative fashion, that they will play with me in a way I find pleasant.

I need to come back to this thesis. Scrolling through looking for something else, I found There were several post-GRS participants who thought the GRS referral process was inadequate and haphazard, and four who thought their diagnosis and treatment had been wrong. Oh dear. That’s out of a sample of thirteen who have had GRS. Yet A reiterated criticism from participants was that in Scotland the GIC referral process for medical treatment can drag on frustratingly for several years, as experienced by many of the research participants; whereas only three participants said they felt pushed too speedily through the process. She recommends that Referrals for GRS should be made as soon as possible after the first GIC appointment. Does that mean 4/13 regretting surgery, or something else?

Sex and Gender II

Sex doesn’t matter.

Sex is physical, gender is cultural. Sex does not matter unless you are having it, looking for it, or looking for someone to have it with. Sex, maleness or femaleness, is so little of human experience that, compared to gender, it does not matter.

Gender is how we relate to each other. Arguably it is gender rather than sex that men generally ask women out rather than the other way round. Gender is how we present ourselves to each other, or even to ourselves. Gender is our whole lives.

So if you are forced into a masculine gender, when it does not fit, it is as oppressive as to be forced to be someone else, pretending all the time, never allowed to be yourself.

That does not mean that you would be happier in a feminine gender. It can be as restrictive. It probably fits you better, but there is that small matter of sex, a tiny part of life but important all the same, and the fact that the feminine gender is not “opposite” to masculine. It is not binary, On or Off, 1 or 0, but a huge range as diverse as all of humanity. Your gender does not fit the culture, male or female, and you can try to make it fit or be yourself. Those are the choices.

“Transsexual” makes no sense at all. You cannot get female sexual organs, only a rough simulacrum of them. You might think that customary ways of using what you have don’t really fit your gender, but alteration can’t make it better. If you want to be passive, having The Operation does not suddenly make that permissible.

I felt it did. I felt sexual passivity and post-op trans organs went together. After the operation I could give myself permission. If only I could have given myself permission to be passive without the operation.

Only non-binary can fit a human being as they is. No-one fits gender stereotypes, some people can sort of fit just for a quiet life, some of us who don’t fit at all have to rebel and create our own gender, idiosyncratically ourselves.

I wrote a post called “sex and gender” in 2013, and put it completely differently. At the time, I felt a strong need to change sex in order to feel permitted to change gender. I associated the feminine gender too much with the female sex, and denied my own idiosyncrasies to try and fit the feminine gender as I had tried to fit masculinity. What a shame I could not realise any of this before now.

Transsexual

I got told not to use the word transsexual. It is objectionable. It somehow implies that those who transition should have GRS. The word is “trans”; that includes all of us, and what is between our legs is no-one’s business but ours and our partners’. A girl-cock, a hyperenlarged clitoris, or whatever you call it, is OK.

Do you feel less than others? Do you feel a nagging suspicion that real trans women know they are women, and so find the thought of having a penis unbearable? Alternatively, do you feel that you were forced by social pressure into having The Operation by doctors, transsexuals and the general public while you might not have had it, if you had had a completely free choice?

Do you feel less than others? Does the existence of another group of people, which appears to share some characteristics with you but be very different in some ways, somehow make you inauthentic or less entitled to be who you are, do what you want- or do you have nagging doubts that might be so?

The answer is not to lash out, and say it’s the other group that have got it wrong, they are the ones who should change, or demand that they do not mention their difference from you as they should be ashamed of it. That just divides people. We can be allies. We should be able to sympathise with another’s desires and support their rights, while not feeling the same.

I regret the operation. I would like to be able to swive heterosexual women. I suppose being told not to utter the word “transsexual”- or TS- is better than being held up as fool and victim. I wanted it at the time. My path to self-acceptance led through the Operation, and I am not sure “there was another road you did not see”. Though if I were sure of that, it would be sair to thole.

It was as it was.
I am where I am.

The Moving Finger writes; and, having writ,
Moves on: nor all your Piety nor Wit
Shall lure it back to cancel half a Line,
Nor all your Tears wash out a Word of it.

You see I have this huge uncertainty. There is another group, like me in some respects, unlike me in others- and I know they have this difference, though I cannot be certain that they have that advantage and I do not know what disadvantages they may have. Producing my own hormones and not using synthetic ones, my emotional lability might be less: so I could ascribe all sorts of imaginary advantages to the door you did not open– while I am at it, I would be in work, the desire to present female would have passed, I would have three children-

as always with these fantasies, I would not exist and someone else would be in my place.

Guilt, resentment, yearning, shame- I am overwhelmed by these feelings as I always have been, I cast around for ways of escape which instead intensify them. However. I am transsexual. I am not going to keep quiet about that just cos someone tells me to.