24.Submission from Jenny Day and Alison
Bennett
1. It must be clearly stated that the views
expressed in this submission are our own personal views. We do
not speak for any pressure group or outside body. This submission
is made from the point of view of two people who are single in
law and have had full sex change surgery many years previously.
It is therefore for the committee to assess the validity of our
opinions where they touch upon the fights of groups other than
those to which we belong directly.
2. It is our considered opinion that the
drafting team who worked on this bill have, in the main, made
a superb job with very few flaws. They are to be congratulated.
3. We are concerned that in a commendable
attempt to make the legislation as inclusive as possible the drafting
team may have fallen into the trap of making things more difficult
for the very group whose court action brought about the need for
the legislation. It was a series of actions brought by Post Operative
Transsexuals (those who had undergone the full Sex Change surgery)
which necessitated the need for legislation. The fact that these
people now possessed a reasonable facsimile of female sexual organs
was an implicit reason for the judgement. However, as we will
show in paragraph seven onwards the way that this legislation
is framed will make it liable to discriminate against some of
these very people. This can not be in the best interest of anyone
and we do not believe that it was the drafting team's intention.
A law which continues to exclude some of those whose pressure
brought about its existence may well leave a path open to further
court action which clearly is not in anyone's interest.
4. We are aware that some sections of the
transgendered community are concerned about conditions requiring
married people to divorce before change of gender is recognised.
We do not entirely share these concerns. We feel that there could
be a danger in making too many special cases and exceptions. If
these people wish to remain in a legal relationship then we feel
that the right course would be for them to re register their relationship
under the forthcoming civil, partnership provisions. It could
be argued by some that to wish to remain as "husband and
wife" in the face of the evidence might betoken a lack of
commitment to changing gender.
5. We feel that there should be clear guidelines
on what constitutes valid grounds for a gender panel to refuse
an application. Otherwise .there would seem to be a danger that
a gender panel could effectively become a sort of kangaroo court
with arbitrary power of sway over other people lives. The process
of consideration of an application, although done in private,
must be seen to be fair and transparent and we are concerned that
there do not appear to be sufficient statutory guidelines for
the panels to ensure consistency of operation.
6. We have one major area of concern relating
to sections 1 and 19.
SECTION 1
7. The bill has been drafted so that it
may take cognisance of those who have not undergone the full surgical
sex change procedures but are living permanently in "role".
In order to achieve this, the criteria for application have been
heavily predicated on documentary evidence of diagnosis rather
than evidence of surgical treatment. Whilst this should not present
any difficulty for those patients who are treated after the full
provisions of the bill are known, we are very concerned that it
will present an unfair barrier to those who were treated a long
time in the past.
8. In the case of the two authors of this
short submission we were both treated over fifteen years ago and
have lived successfully in "normal" society in our adopted
roles for all of that time. We have deliberately cut ourselves
off from other transsexuals and gender clinics believing that
successful re integration into society is the ultimate mark of
a successful transition and treatment.
9. At that time of our treatment the normal
documentation required for alteration of passports etc was a surgeon's
letter. However this focussed almost exclusively on one aspect
of the treatment. Namely that irreversible surgical alteration
of the persons sexual organs had taken place. The change was therefore
deemed permanent. This letter did not necessarily make any formal
mention of diagnosis and therefore might very well not satisfy
the requirements of the new legislation. (A specimen is attached
as an appendix to this submission.)[53]
10. At the time no surgeon operating in
the UK would perform surgery unless a qualified psychiatrist had
properly diagnosed the person. The legal and healthcare framework
of the time made it considerably more difficult to obtain surgery
than it is today. Thus the fact that one had been properly diagnosed
was therefore completely implicit in the fact that one had obtained
UK based surgery at all. So there was no perceived need for a
UK surgeon's letter to record this fact. Consequently for a panel
to refuse to accept these sorts of letter as satisfactory evidence
would be an unwarranted and gross moving of the goal post after
the fact. This can only serve to discriminate against those of
us who have waited patiently for the law to catch up with our
difficulties. This can not be right or what the drafting team
intended.
11. This would be the ludicrous situation.
Someone who has lived successfully in his or her acquired gender
for many decades could be expected to present to a gender identity
clinic for rediagnosis just so that the application can be filled
out. They have had no contact with the gender world for many decades
and would not know whom to contact. Many of the doctors who treated
them would have retired. After living a successful life in their
new gender from many years it seems highly unlikely that they
themselves could recall enough of their pretreatment state of
mind to be reliably and accurately re diagnosed. You simply can
not re diagnose someone many years after they have been successfully
treated and cured (the change is after all supposed to be a cure).
Therefore it follows that any doctor required to perform this
sort of diagnosis after the fact would have to give the patient
the benefit of the doubt. In consequence we would ask what purpose
would be served by this procedure other than to make it un necessarily
difficult and stressful for an "old timer". Such people
arguably have more right to legal recognition than someone who
is just being treated. Indeed if the doctor or gender panel refused
to give this long term post op patient a "rubber stamp"
diagnosis then the possibility would be re awakened that the patient
might well choose to resort to the European Court of Human Rights
and we would all be back to square one.
12. We understand the section 19 was designed
to avoid this problem. However we are concerned that it will prove
inadequate for the following reasons.
SECTION 19
13. We note that there are provisions for
a fast track procedure for those applying within the first six
months after the legislation is operative. This does indeed allow
for the differing standards of documentation that those of us
who have been post operative for some while will possess. However
this qualification has been artificially restricted to a six month
time window. This gives rise to three concerns:
14. Firstly there will inevitably be an
enormous backlog of applications and it would be manifestly unfair
to penalise those who fail to get their applications processed
within the six months due to delays on the part of the panel.
If the operation of this section must indeed be time limited we
would suggest 12 months would be more reasonable.
15. Secondly there is in our view a real
danger that many long term post ops will not get to hear about
the changes until it is too late. In our own case despite living
together for fifteen years in partnership we have deliberately
taken steps to disassociate ourselves from Transsexual groups
and to re integrate ourselves into mainstream society. This treatment
is supposed to make one into a normal member of society. Thus
those of us who successfully transitioned can only really say
we have completed the change when we leave the artificial "TS"
world and re-join normal people. So were it not for the fact that
we are intelligent, educated and interested in current affairs,
there would be a considerable danger that we would now be blissfully
unaware of the proposed requirement of the legislation and its
shortcomings. There is thus a danger that many of the voices heard
in this consultation will be those of pressure groups and extremists
on all sides who may not accurately represent the opinions of
the moderate silent "common sense" majority.
16. Thirdly it can be argued that once a
person has acquired the genitalia and sexual characteristics of
their new sex they NEED the protection and provisions that legal
recognition would give them rather more than those who for whatever
reason have chosen to retain their original genitalia. This is
not to say that those who have not had surgery can never gain
recognition. Merely that it should be easier to gain full recognition
for those who have had surgery because the risks and consequences
of not having legal recognition are more acute for them.
17. Without in any way wishing to denigrate
the work of the drafting team it would seem to us that in an effort
not to discriminate against the small minority who do not undergo
surgery they have potentially discriminated against the vast majority
who do. There must be permanent and automatic grounds for application
for those who have undergone the full sex change surgery. A gender
panel should NOT have power to refuse an application from someone
who has had full surgery. (Although such provision might have
to be framed so that granting of that application would also automatically
dissolve any previous marital union.)
18. Speaking purely for ourselves we feel
that the value of this attempt to include those who have not had
surgery in the same legislation may be questionable. We are concerned
that it could give rise to confusion in the mind of the wider
public. Generally speaking the law uses a test of what a reasonable
person would assume. Under this test those who have had surgery
and all of the other associated treatments would in all probability
pass as members of their adopted gender. Clearly those who had
not probably would not. In consequence we worry about people who
still retain male genitalia gaining the "right" to enter
a place where females are found naked such as a changing room.
Bear in mind that the two authors are post operative themselves
and so should be reasonably sympathetic. However in all honesty
even we would have serious reservations about this state of affairs
were it to occur. What none of us wants is a public backlash against
this legislation and we feel that giving all transsexuals regardless
of genital status full rights could very well produce just such
a reaction.
19. It does not appear to us desirable that
the law brings into effect a set of circumstances where people
gain rights which the vast majority of reasonable people would
object to. This is as much an error as completely refusing such
rights to those with legitimate need for them. In consequence
we feel that some reexamination of the balance of this legislation
is needed and it may be that there is a need for TWO classes of
registration each conferring differing levels of rights and responsibilities,
with FULL rights restricted to those who have undergone the full
treatment.
20. We realise that this view will be unpopular
with some sections of the Transsexual community. However a democratic
consultation has little value if some shades of opinion allow
themselves to be silenced by pressure groups calling for "unity".
We feel that it is important that the resultant legislation should
be acceptable to the widest possible section of general society.
We have no wish to see this legislation subsequently repealed
should a political party of less Euro sympathy come to power.
In this connection we feel that the committee should look very
carefully at BOTH simplifying registration for those who have
had surgery and some reasonable limitations to the rights granted
to those who have not.
21. Someone who is post op automatically
needs the status that recognition will confer in order to function
within society without unreasonable danger of harm or discrimination.
This can be clearly seen in the example of a recent court judgement
over a male to female transsexual's non existent right to use
a ladies toilet.
22. The judgement was given in a high court
on the basis that the applicants were all male in law. This means
that in theory, at least, an applicant who has fully female bodily
shape and function can legally assert a right to use a male toilet
but is denied the right to a female one appropriate to her bodily
functions. We wonder what would have been the result if such a
person had wandered into the gents. We suspect that they would
then have been arrested for behaviour liable to give rise to a
breach of the peace. This is a subtle form of double jeopardy
and not consistent with the best traditions of British law. In
a public place it is not unreasonable for a person to expect to
have the right to use one toilet or another without risk of harassment,
injury or legal challenge.
23. Clearly having to use a male toilet
whilst attired in female fashion could lead to some embarrassment
for those who still retain male parts, but live permanently in
a different role. However it is a total disaster for those of
us who have had surgery, as technically it means that to comply
with the law we would have to use a male toilet that may not be
designed for someone without male genitalia. It could also put
us at extreme risk of rape or other serious harm.
24. Although the example above may seem
rather trivial it is symptomatic of the kind of practical day
to day problem that does arise all too frequently when the way
the law treats a person is at variance with their physical bodily
attributes. There are many other similar examples but in the interests
of brevity we will not cite them. However we believe that by extension
of the principals we have demonstrated why the law must be framed
in such a way that those who have undergone the fullest treatment
must be granted automatic right of registration. In the absence
of any other documents all that should be necessary is an examination
by the patients own GP to confirm that they have indeed had proper
surgery.
PROPOSED ALTERATION
25. In an ideal world we would like the
application .procedure to be entirely redrafted so that those
who can prove that they have had the full sex change surgery gain
an AUTOMATIC and UNDENIABLE right to recognition. We feel that
nothing less will fully satisfy the human rights of the applicants.
The gender panels should ONLY have power to "decide"
applications from those who are not yet post operative.
26. As a very minimum requirement we feel
that it is imperative that the requirements for application be
re drafted so that rather than being restricted to a six month
window, section 19 remains open to anyone who is already long
term post operative at the time that the legislation is introduced.
Thus people already fully treated prior to the legislation can
automatically qualify under the amended provisions of section
19 however long after the bill comes into effect they choose to
do so.
27. This we feel will remove any chance
of unintentional discrimination. Furthermore to fail to make this
simple amendment would in our view leave the new legislation open
to legal challenge on the grounds that the law is being unequally
applied.
28. It should be noted that this in no way
alters the long term operation of the law, as it is limited to
those who underwent treatment BEFORE the legislation was drafted.
Thus no new people will qualify for this route of application
as time passes.
29. It will ensure that no one who could
legitimately argue that they had no way of knowing that they would
one day be required to produce all this documentation is unfairly
disadvantaged.
30. It will also take the pressure off the
panels who otherwise will face a horrendous rush during the first
six months attempting to process many tens of thousands of hurried
applications.
31. In summary those who are long term post-op
and have had the full surgery need to be treated by the law according
to their PHYSICAL medical status and not by whether or not they
have been measured against some arbitrary set of diagnostic criteria
... diagnostic criteria can change over the years. However once
someone has been treated surgically that becomes an irreversible
FACT. In a real sense it then matters not why they became post-op.
The important fact is that they did. And therefore human rights
principles mean that they are entitled to be treated by the law
in an appropriate manner. To deny a registration to someone merely
because they don't have the right words on a piece of paper, when
any competent GP can confirm that they have received irreversible
surgical treatment, would not meet the principles of respecting
their human rights.
18 August 2003
53 Not printed. Back
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