8.Submission from Gender Identity Research
and Education Society (GIRES)
GIRES, as a Charity which is dedicated to the
welfare of trans individuals, congratulates those, particularly
Press for Change, who have worked so hard to bring the proposed
legislation to this point. We wholeheartedly support all the good
work that has been done.
GIRES also endorses the analysis of the Draft
Bill, prepared by The Gender Trust. In view of that, we have endeavoured
to keep our own responses as brief as clarity will allow, and
to focus on some of the most important features which are causing
concern.
1. The term "acquired" gender
is misleading. This may not seem to be a substantive point, but
vocabulary is important in shaping the way that people think about
issues. "Gender identity" is not something you acquire,
but rather an innate psychological identification as male or female,
which pre-exists the transition process. An individual undergoing
that process adopts the opposite gender role and aligns the phenotype
(to a greater or lesser degree) with the core gender identity.
So it isn't the gender identity that changes. In fact, physical
characteristics are brought into line with the core gender identity,
and an appropriate gender role is adopted (see Gender Dysphoria
document attached)[2].
The terms used need to reflect that reality. Since the Bill refers
to Gender Recognition, perhaps "newly recognised gender"
would be more appropriate.
2. Gender Dysphoria (GD) is not synonymous
with Transsexualism (see Definition and Synopsis of the Etiology
of Adult Gender Identity and Transsexualism attached). This document
is endorsed by many scientific and medical experts in the field,
listed at the end of its text)[3].
GD refers specifically to the personal experience of the dissonance
between the phenotype and associated gender role, on the one hand,
and the innate gender identity on the other hand. It is only when
this dissonance is profound and persistent that it leads to a
need to transition to the opposite gender role, and may then be
regarded as transsexualism.
We respectfully propose that these two elements
be incorporated throughout the text, where appropriate, as follows:
text to replace original
1. APPLICATIONS
(1) A person of either gender who is aged
at least 18 may make an application for a gender recognition certificate
on the basis of—
(a) living according to the opposite gender
role or
(a) being recognised under the law of a country
or territory outside the United Kingdom as having changed gender
status
(2) In this Act "the newly recognised
gender ", in relation to a person by whom an application
under subsection (1) is made, means—
(a) if the application is made under paragraph
(a) of that subsection, the gender role in which the person is
living, or
(b) if the application is made under paragraph
(b) of that subsection, the gender status to which the person
is recognised as having changed.
(3) An application under subsection (1)
is to be determined by a Gender Recognition Panel.
(4) In the case of an application under
subsection (l)(a), the Panel must grant the application if satisfied
that the applicant—
(a) is experiencing or has experienced gender
dysphoria,
(b) has lived according to the newly recognised
gender throughout the period of two years ending with the date
on which the application is made,
(c) intends to continue to live in the newly
recognised gender until death. and
(d) complies with the requirements imposed
by, and any requirements imposed by the Panel under, section 2,
and otherwise must reject it.
3. EXISTING MARRIAGES
(PRE TRANSITION)
Existing marriages which were contracted before
the transition of one partner, should be protected. In this, of
course, we almost certainly echo the feelings of the entire trans
community. The argument for ending these marriages is that they
are regarded as single-sex relationships and, accordingly would
be incompatible with the law. Application for a Gender Recognition
document would, therefore, have to be accompanied by divorce.
We would oppose this as it obliges trans individuals and their
spouses, either to end their marriage, or it obliges the trans
partners to remain assigned to the wrong gender at a time when
others are claiming their new status as a fundamental human right.
Many will undoubtedly choose to remain married and will forgo
the opportunity to obtain legal status in their core gender identity.
This Bill is responding, quite properly, to
the breach of human rights which hitherto has existed, in that
trans individuals have been unable to have a document which recognised
their innate gender identity. That is clearly now accepted as
unjust and unequal treatment. But forcing a choice between two
unacceptable propositions is, in and of itself, an abuse of human
rights. The law would be giving with one hand, and removing with
the other, an essential element of equality and dignity; the law
would therefore, in these cases, be inconsistent, either with
Article 8 or with Article 12 of the Human Rights Act. The net
result is that two otherwise identical people, one married, one
not, will have different employment rights. The trans person who
remains married cannot avoid the 1999 employment restrictions,
which the unmarried person escapes (Sex Discrimination [Gender
Reassignment] Regulations 1999 [SI 1999/I 102]). Trans people,
in pre-existing marriages, therefore without a gender recognition
certificate, may be regarded as a risk to vulnerable people, whereas
those with such a certificate, whose marriages are rendered void,
will not be so regarded.
In order to obtain essential protections against
these kinds of discrimination in the workplace, a married trans
person must end an otherwise successful marriage, to the considerable
detriment, emotional and financial, to the spouse and children
of that marriage. It seems wholly inappropriate, in an age when
society generally exhibits such a lamentable lack of stability
in family life, that families who seek to remain a unit, should
be destabilised in this way.
It is noteworthy, that Judge Chisholm discusses
such a situation, "in order to be as thorough as possible".
He poses the question, "what would be the position if the
marriage law were to recognise the reassignment? The marriage
would, I think, still be valid: its validity would be determined
as at the date of the marriage, and I would not think it would
become invalid by reason of the reassignment" (re Kevin,
validity of marriage of transsexual (sic) 2001, paragraphs 302,
303). It is open to the government to follow this reasoning.
4. EXISTING MARRIAGES
(POST TRANSITION)
There are even more cogent reasons for not ending
existing marriages such as that of Elizabeth Bellinger, who had
already transitioned when she and her partner celebrated their
wedding. Their union is now, according to the Draft Bill, to be
regarded as void. The Bellingers will, under the proposed new
regulations, be able to marry each other "again". The
failure to acknowledge the whole of the pre-existing marriage
is, as with the marriages dealt with in paragraph 4, a breach
of human rights. It is quite possible for the government to circumvent
any Corbett arguments by taking the line argued by Judge Chisholm
in re Kevin, a trans man (validity of marriage of transsexual
(sic) 2001), and therefore in a situation which is the mirror
image of Mrs Bellinger's. Judge Chisholm said of Kevin, merely
that he perceived himself to be a man; he had had reassignment
treatment involving hormone therapy and irreversible surgery;
he was perceived by others as being a man; at the time of his
marriage, in appearance, characteristics and behaviour he was
perceived, and accepted, as a man, by his family, friends and
work colleagues. His marriage as a man was accepted in full knowledge
of his circumstances. The human rights and common sense arguments
prevailed and there was a declaration of the validity of the marriage.
This path is open to the UK government.
5. In addition, these arguments are significantly
strengthened by the cogent scientific arguments for allowing these
marriages to be recognised from their inception. These are based
on accepting the view, supported by medical and scientific experts,
that although an infant's gender identity cannot be discerned
at birth, it is, to an extent, predetermined by the early organisation
of neural structures in small areas of the brain which are identifiable
in the general population, as sex-dimorphic. Typically, this "brain
sex" is consistent with other sex characteristics and, therefore,
at birth, the gender identity is predicted to be congruent with
the visible sex characteristics. It had previously been assumed,
therefore, that the influence of the bodily appearance of an individual,
reinforced by socialisation in a manner that was consistent with
that appearance led, inevitably, to a congruent gender identity.
Therefore, the typical biological pathway was regarded as being
chromosomes—gonads—phenotype—rearing—gender
identity. It was thought that what one could see at birth was
all one needed to know. It is on this basis that Corbett has held
sway for so long.
6. However, Corbett is now outdated in light
of current knowledge. In accordance with the understanding that
early biological influences include brain sex differentiation,
it is also understood that there will be rare cases of inconsistency
between it and other sex characteristics. This echoes the experience
of, and research into, the unusual inconsistencies between many
other elements of sex-differentiation, affecting genitalia, gonads
and internal sex organs. In the case of trans individuals, two
biological pathways are, in fact, running concurrently: the phenotype,
leading to the imposition of the gender role; the brain sex differentiation
predisposing to an opposite gender identity. The potential for
the conflict between phenotype and gender role, on the one hand,
and gender identity on the other, is innate, although it may take
some years to become clearly identified. It is inevitable that,
at birth, where there are instances of brain sex/body incongruence,
the gender identity will inevitably be mistakenly predicted (see
attached papers, Definition and Synopsis of Adult Gender Identity
Disorder and Transsexualism; Gender Dysphoria).
7. Lord Justice Thorpe, in his dissenting
judgment in Bellinger v Bellinger ([2001] EWCA Civ 1140,
paragraph 134-136) referred to a parallel case, that, of Re W
(Charles J in W v W [2001] 1 FLR 324). Mrs W had a condition known
as partial Androgen Insensitivity Syndrome. This is a condition
in which a chromosomally male foetus has a reduced response to
the influence of testosterone. The infant may, therefore, be born
with some degree of ambiguity of the genitalia since they are
not fully masculinised. A decision was taken that this individual
(Mrs W) would function best as a boy and the infant was assigned
accordingly on the birth certificate. Eventually, finding herself
uncomfortable in the male role, she transitioned to live in the
female role and had genital realignment surgery. This individual's
chromosomes and gonads were wholly inconsistent with her gender
identity, as were, to a certain extent, her genitalia. A situation,
which, as Thorpe L J pointed out, echoed in almost every particular,
the history of Mrs Bellinger. Mrs W won her case; Mrs Bellinger
lost, yet any distinctions, in medical terms, are spurious.
8. It is not necessary to argue against
that the notion that sex and gender are fixed at birth (Corbett).
Let us suppose that they are. Sex, of course, may be modified
by surgery. Gender identity may not be so modified. It is resistant,
as Professor Richard Green suggests in his affidavit (Bellinger
v Bellinger, cited at para 116 iv) to socialisation and to
all manner of psychiatric treatments (Bellinger v Bellinger,
cited at para 32). So it may be regarded as being predisposed
to remain much as it was at birth but, in the case of those destined
to experience gender dysphoria, it is not congruent with other
sex characteristics, having developed in the opposite direction,
as Professor Louis Gooren explains in his affidavit (Bellinger
v Bellinger, cited at para 27). So, as stated at paragraph
6 above, where the error is made, is not necessarily in the presumption
that gender identity is fixed, but in supposing that it is fixed
in a way that is congruent with the external appearance. Thus,
gender identity is not inconsistent with biology, but in Corbett
and beyond, the wrong biological characteristics have been identified
as relevant. As Professor William Reiner succinctly puts it, "the
organ that appears to be critical to psychosexual development
and adaptation is not the external genitalia but the brain"
(W. G Reiner, (1997). To be Male or Female—That is the Question.
Archives of Paediatrics and Adolescent Medicine 151 [March] :224-5)
9. Judge Chisholm, in re Kevin (validity
of marriage of transsexual [sic] 2001,) also had the benefit of
affidavits from a number of experts. After carefully analysing
the material, he finds, on the balance of probabilities, that
Kevin's sense of being a man is based on some "biological
characteristic of his brain". Judge Chisholm does not rely
on this, but his finding indicates the force of the medical evidence
which reinforces the legal argument for human rights. The implications
of this are that trans people are born, not made. A trans woman
who, in the past would have been described as a biological male
is, in fact, biologically female in the place that counts most—the
brain. Mrs Bellinger, and others in similar situations were, at
the time of birth and at the time of marriage and today, still
experiencing the same gender identity. She has always been female
and, crucially, at the time of her marriage to a man, she was
recognised as such. Her existing marriage should, therefore, be
validated. Obviously the same holds true for a trans man in the
reverse situation. The Corbett criteria which had regard for chromosomes,
gonads and genitalia, did not take account of the full biological
picture, which includes brain sex-differentiation. It can no longer
be argued that these criteria are sufficient information upon
which to judge cases involving trans people. It is open to the
government to follow the judgements of Judge Chisholm, Lord Justice
Thorpe, and Charles J in W v W. In view of these important
examples in existing law, a European court would almost certainly
find in favour of validating the existing marriage, and the UK
would, once again, be obliged to make local legal changes. This
validation, however, can already be accommodated in UK law; indeed,
the law has already done it (op. cit. Charles J in W
v W. This avenue is open to the government.
Disclosure
10. Concerns have also been expressed with
regard to the efficacy of the "prohibition on disclosure
of (protected) information" and, therefore, the security
of the Register. Reassurance that there can be no inappropriate
sharing of this information, is sought. Concerns have recently
been heightened by the intention of the DCA to enter into consultation
regarding a draft statutory instrument to provide yet further
exemptions from the disclosure rules under the Bill, thus looking
to broaden, even further, access to the gender change register.
We suggest that no further exemptions to the protection of these
data are permitted.
Gender Recognition Panels
11. Clarity is sought on who is eligible
to be a member of the Gender Recognition Panels, and how the members
will be selected. Our recommendation is that people of impeccable
objectivity are selected, who are knowledgeable about gender identity
and transsexual issues, and that these criteria are incorporated
into the Bill.
Cost
12. There are concerns about the possible
cost to trans people of obtaining new recognition. We are aware
that many are on very low incomes. We suggest that the cost should
be specified and be no more, say, than the cost of renewing a
passport. Since the provision of medical documents will, in most
cases, be expensive, would it not suffice to have a single document
from the GP, who is likely to have had the longest and perhaps
the most frequent contact with the individual.
Solemnisation of marriage
13. It would appear to be the case that
clergymen already have the right to refuse to marry people or
carry out other ceremonies if it offends against their own conscience.
Is it, therefore, necessary to single out trans people as the
one group regarding whom a written regulation exists? A Rector
in our village regularly refused to marry couples who had been
cohabiting, or to baptise babies whose parents were unmarried.
(The Church has now removed him to a distant part of Scotland
where, presumably, it was deemed that his views would give less
offence to fewer people). The church will always have a number
of clergy who are "ignorant or bigoted". To dignify
such attitudes by explicitly referring to these, in relation to
trans individuals appears gratuitous.
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