16.Submission from Dr Tracie O'Keefe,
Sex and Gender Education, Australia (SAGE)
This paper considers problem areas that may
be addressed concerning the exploration, debate and introduction
of the British Government's proposed Gender bill. The problem
areas that SAGE has concerns over include matters of inclusion
of differing sex and gender diversities, the government panel
for gender recognition, previous marriage before transition, British
government pensions and rights to privacy.
By Dr Tracie O'Keefe DCH (Doctor of Clinical
Hypnotherapy) Psychotherapist and Counsellor, Professor of Sex
Gender and Sexuality.
I am a specialist in the field of sex, gender
and sexuality and for over 25 years have worked with people who
have sex and gender diversity issues including transsexuals, transgendered,
androgynous, intersex and people with no sex and gender identification.
Before moving to Australia, where I run a clinic specialising
in this area, I ran a similar clinic from the London Medical Centre
in Harley Street in the UK for several years. I am a clinical
member of the Harry Benjamin International Gender Dysphoria Association
(HBIGDA) and have sat on its ethics committee. I am also a member
of Counselling and Psychotherapists Association of New South Wales
(CAPA), and a registered clinician with Psychotherapists and Counselling
Federation of Australia (PACFA). I am the author of two books
on the subject of transsexualism and sex and gender diversity
(Trans X U-All: The Naked Difference, published 1997 and Sex,
Gender and Sexuality: 21st Century Transformations, published
1999 and the co editor of an anthology, Finding the Real Me: True
Tales of Sex and Gender Diversity, published 2003, as well as
author of many papers and articles in this field. In short I can
be considered an expert in this field with an internationally
respected reputation. This paper is a sole presentation on behalf
of myself as a specialist in the field of sex and gender diversity
and Sex And Gender Education (SAGE), Australia, an association
of sex and gender diverse people lobbying for their human rights,
many of whom are British citizens (www.sage-australia.org)
BACKGROUND
The Bill
The proposed bill that is being drafted and
explored by the British Government is to change the legal circumstances
of people who are currently deprived of their personal human rights
of identification as male or female when they have undergone some
kind of social transition from one sex and gender to another.
I and we at SAGE commend this bill in its direction and ethos
in trying to improve the human rights of those who are sex and
gender diverse. Because of confusion over terminology I shall
define some descriptive words to be used in this paper.
Transsexual—A person who chooses or feels
compelled to change their sex or gender identification to another
sex or gender identification. In its ordinary meaning a person
who is transsexual may seek to become and be recognised as male
if their natal sex and birth certificate stated female or vice
versa. This is likely, but not always, to include medical procedures
to alter their bodies to reflect what they believe is living in
their true identity.
Transgendered—These are individuals who
are born with one sex and may choose to socially live as another
sex but whose core sex identity remains their original birth sex
even though they appear socially as a different sex and gender.
This may also include the alteration of the body. The word transgender
has also often been used to describe the whole of the sex and
gender diverse community but that is extremely inaccurate and
offensive to many people who do not believe that they are transgendered.
Sex and Gender Ambiguous—There are those
who do not identify as male or female and may choose to have no
sex or gender mentioned on their official documents.
I believe that the bill currently being drafted
for consideration is to deal with the human rights of people who
are identifying as transsexual although in doing so its composition
needs to be careful to include those who have other sex and gender
diversity issues. Failure to do this will unwittingly and ultimately
result in the bill being little more than the replacement of one
lot of legal precedents with poor legislation that discriminates
against a group of people who will fail to meet a certain narrow
stereotypical criteria for transsexualism. This will ultimately
result in further court cases being brought against the British
government in the European Court of Human Rights. A bill that
has broader, more inclusive concepts of what sex and gender diversity
might be would be a better form of legislation that would bring
the British Government more in line with present day recognised
human rights issues and prevent a stream of further court cases
being brought against it in the future by people who are sex and
gender diverse.
ISSUES AND
AREAS OF
CONCERN
Inclusion
This proposed bill in its present form is far
too narrow in its description of people who are sex and gender
diverse, focusing too narrowly on those who identify as classically
transsexual wanting to change from male to female and vice versa.
Whilst classical transsexuals have a genuine need to change their
birth certificates during transition to reflect their new status
and to be afforded all the normal rights associated with their
destination sex and gender, the issues surrounding the diversity
of sex and gender transitions are far more complex. There are
individuals who do not self identify as strictly male or female
and to force these individuals to have to do that in law would
do harm to their psychological, physical, social and legal well-being.
It cannot be the job of the state to dictate the sex of individuals.
Instead the state should protect an individual's right to self
identify as they need, choose or wish. The protection of a person's
right to self define their sex and gender must come alongside
the right of an individual's right to practise belief systems
according to their own ideas such as religion, political views
and freedom of speech without recourse from the state, groups
or individuals causing harm to them. Thus it can be the founding
principle of a free democracy that values the human rights of
every individual to individuation.
The bill needs to include a third identification
providing for an individual not to be forced to state their sex
or gender if they do not choose to do so. Science has now shown
that sex and gender diversity is far greater than simply male
or female and that many individuals are born with sex and gender
performance characteristics attributed to both male and female.
So to speak only in male or female terms is simply ignorant and
unrealistic. Whilst it would be impractical for the bill to include
all the differing kinds of sex and gender-diversity that are varying
forms of transgender, the accommodation of a third category of
human beings who have the right not to be forced to declare their
sex or gender would afford every one their human rights in this
field. A third category of non declaration of sex and gender has
recently been used in Australia (Western Australian newspaper,
Perth 11 January 2003: X Marks the Spot for Intersex Alex) where
an intersex person has been given the right to have X indicated
as their sex and gender instead of M or F for male and female
respectively.
THE GOVERNMENT
PANEL FOR
GENDER RECOGNITION
Should such a panel be set up to facilitate
the bureaucratic need to assist the government in helping individuals
in sex and gender transitions to change paperwork, for example
birth certificates, driving licenses, passports and so on, then
that body should have no veto to an individual self defining their
own sex and gender identification accompanied by appropriate referrals
from a specialist in the field of sex and gender diversity. It
must be a panel that simply requires evidence that the person
concerned now lives as their chosen sex and/or gender identification,
that can be male, female or as the third category of non declaration.
Evidence could be a letter from a specialist in the field of sex
and gender identity such as a medical, psychological, psychotherapeutic
or social work practitioner as would be in line with The HBIGDA's
Standards of Care.
There are concerns in the sex and gender diverse
community that the panel may rely heavily on medical evidence
but that would be unbalanced because there is currently no definitive
medical evidence available that can test for sex or gender diversity
or transsexualism. Because of the kinds of diversity that occur
in sex and gender identification, no scientific instrument can
be devised to measure a person's sex or gender identification
because it would be socially and experimentally biased and inaccurate.
The internationally accepted assessment criteria, however, are
clearly recommended by HBIGDA as being observation over a three
month period by the aforementioned kinds of professionals specialising
in the field, which clearly rely on self reporting.
PREVIOUS MARRIAGE
BEFORE TRANSITION
Marriage for British citizens can be both a
religious and/or a civil ceremony, each having equal status before
the law. Marriage protects the rights and privileges of spouses
in relation to inheritance, insurance claims, child access, and
pensions. The suggested proposal that marriages should be dissolved
before a person is allowed to change their birth certificates
would be a contravention of human rights. From a religious and
legal perspective it would be regarded as an intrusion by the
state to split up a state of holy matrimony and legal marriage
completely against the wills of the individuals involved, therefore
a breach of human fights, and could be a class action in the European
Court of Human Rights. Furthermore the children of such a marriage
would also be the victims of the state attempting to destabilise
their family unit.
Many individuals do not choose to be sex and
gender diverse but find themselves at some time in their life
needing to transition to a destination sex or gender identity
that is other than their birth sex in order to save their life.
The added pressure of being forced to dissolve what might be a
good stable relationship would be detrimental to their own and
their families' well being. A parallel can be drawn directly from
the history of the treatment of transsexualism. It used to be
considered necessary for those transitioning to be divorced before
surgery would be recommended by clinicians; however it was found
that for many people this caused a rift between family members
that caused a deterioration of that that person's well-being as
well and their ability to facilitate relationships. It is now
not considered necessary by professionals in the field for individuals
to get divorced before they can have surgery. In a professional
capacity I have had many cases where a person going through transitioning
has suffered severely because of the enforced dissolution of their
previous marriage in order to be accepted for treatment. In short,
such, a clause in the bill would leave the British government
open to litigation and is surely antidemocratic.
A bill that required people with previous marriages
to be divorced before applying for a new birth certificate would
be of little use to many transsexual people as they would be faced
with a choice of dissolving their partner's future pension and
inheritance needs in order for them to gain that new birth certificate
and this would be unacceptable.
BRITISH GOVERNMENT
PENSIONS
Any bill would need to take into account that
people who had transitioned before the age of retirement should
be entitled to the state pension at the age of retirement appropriate
to their destination sex.
RIGHTS TO
PRIVACY
All public records as to the person's previous
identity within the state system should be sealed to afford the
individual the right to privacy after transition.
In conclusion this bill can and must to include
all of the diverse issues concerned with people who are transsexual,
transgendered and who have other sex and gender identities other
than male or female. SAGE remains open to consultation and with
the British Government on behalf of its members who are British
citizens.
10 September 2003
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