32.Submission from Gina Large
As one who was plunged into the nightmare of
gender reassignment at the age of 54, after half a century of
severe internal distress finally erupted like a volcano, I am
writing this personal submission, on behalf of myself and my spouse,
in response to the Committee's call for evidence on the practical
implications of the Draft Gender Recognition Bill.
In particular, I want to focus my submissions
on two aspects:
(a) Firstly on the injustice of demanding
that those who remain legally married must divorce, regardless
of the wishes and respective rights of the two individuals concerned,
and,
(b) Secondly on the need for those undergoing
gender reassignment to be protected in law against discrimination
in the provision of goods, facilities, services and premises.
(a) The injustice of imposing divorce
as a pre-condition to gender recognition
As a qualified lawyer, I can understand the
logical reasoning behind the drafting of the Bill. On paper, it
must appear that to allow the continuation of a pre-existing male-female
marriage would be inconsistent with the granting of legal recognition
that one of the parties to that marriage has subsequently changed
gender. Hence, Clause 3 of the Bill, as drafted, requires the
termination of marriages prior to the grant of full gender recognition
certificates.
The Department for Constitutional Affairs has
expressed the view that "the Bill's approach, in requiring
transsexual people to accept the ending of a male-female marriage
as a condition for registration in the new gender, is justified."
Easily said, but, as one who knows from personal
experience the immense suffering gender change itself brings to
married couples, I implore the Joint Committee on Human Rights
to take a more humane view, to apply the principles of natural
justice, and to recommend against the imposition of further suffering.
The best way I can present and illustrate the
issues in real-life human terms, is to enclose, for each Member
of the Committee, a personal copy of my recently published autobiography
(Gina: The Woman Within ISBN 0954435206, which includes
the wife's perspective in Chapter 3 "For Better Or Worse"),
together with a copy on audio cassette of the in-depth documentary
interview we recently recorded for BBC Radio Lancashire ("Six
Words That Changed The World") which was broadcast on 25
August.) I believe these personal accounts will provide a moving
insight into what it is really like to be a married couple whose
lives have been turned upside down by events beyond their control.
In this context, I ask the Committee to consider
two questions:
1. Would it be just and equitable, in accordance
with the basic principles of natural justice and the human rights
of the individual, to impose upon Joan, my partner, the dissolution
of her marriage, entirely against her will, bringing unwarranted
stigma, loss of status and loss of rights (particularly pension
and widow's rights, which could be a very serious detriment to
those nearing pension age) to an innocent party, who has already
suffered a great tragedy in her personal life? The Department's
commentary on the Bill focuses entirely on the transgendered person,
in justifying its requirement " .
.
. to accept the ending of a male-female marriage
as a condition for registration .
.
.
". But, surely, there are two parties to a marriage,
and each is equally entitled to fair treatment? What of the other
spouse's rights? In my case, Joan is not applying for gender recognition.
Should the legislation ride roughshod over her rights, in order
that Gina can achieve the gender recognition to which she is entitled?
2. Would it be just and equitable, in accordance
with the basic principles of natural justice and the human rights
of the individual, to deny Gina, despite her having satisfied
all the proposed tests in the Bill, including surgery, her proper
gender recognition, for the sole reason that she feels unable
to impose the dissolution of the pre-existing marriage, and the
inevitable upheaval as a consequence, against her partner's will,
given that her partner has bravely stood by her, and does not
deserve to be cast aside in this callous manner. But how could
it possibly be regarded as acceptable treatment to condemn Gina,
in such circumstances, to forever be treated as "male"
in the eyes of the law, and thus exposed to all manner of discrimination?
Marriage is essentially a personal and private
contract between the two individuals concerned, a precious relationship,
and its dissolution or continuation should surely be a matter
for those parties alone to decide, in their own way and in their
own time. In many cases it will take the parties much deliberation
to sort out the best way of going forward with their lives, after
such a profound change in their relationship. There may be children
who need the stability of a family home, or there may be other
factors which need to be resolved before the right long term decisions
can sensibly be taken. It is, in my submission, a gross violation
of the rights of those individuals for the State to demand an
immediate divorce as the price of one individual achieving other
legal rights, to which he or she has become entitled.
Why on earth does the proposed legislation,
which otherwise has so much merit, have to become locked into
making life even more difficult for those couples who have already
suffered enough, but choose to remain together, despite the gender
change?
What is the real problem with allowing, as a
special provision, their pre-existing rights to be preserved?
There are past precedents for such provisions being included,
to prevent a new law adversely and unjustly affecting existing
rights, as, for example, with changes in nationality and immigration
legislation, which are most often not operated retrospectively
against the individual. There is, indeed, precedent within the
Bill itself. Clause 8 (1), dealing with Parenthood, provides that,
although a person is to be regarded as being of the acquired gender,
that person will retain their original status as either father
or mother of a child. Illogical? Yes, but here the human factor
has evidently been brought into play. By applying the same principle,
why cannot the Bill provide that, although a person is to be regarded
as being of the acquired gender, the person will retain their
original status as either husband or wife of a pre-existing marriage
partner, for so long as it is the mutual wish of the partners
that the marriage should continue to have legal effect?
Clause 5 (2) of the Gender Recognition Bill
makes clear that the recognition to be granted is not retrospective,
in that the new Certificate does not rewrite the gender history
of the transsexual person.
Thus, the issue of a Certificate does not render
the previous, lawful marriage invalid, if it was valid at the
time it was contracted. Allowing the marriage to continue, therefore,
does not sanction "same-sex" marriages, as that was
not the situation at the time the marriage took place. Clearly,
after gender recognition, the parties would no longer be entitled
in law to contract that marriage, but that is not the issue. Similarly,
if the transgendered partner wished to exercise his or her right
to marry in the future in the new gender, or the other spouse
wished to remarry, the previous marriage would have to first be
dissolved—but this applies to everyone under the law of
bigamy, so gender recognition has no particular relevance here.
All that is needed is for the Change of Gender
Certificate to declare that all rights and status of the parties
arising under any pre-existing marriage are protected and preserved
for so long as both parties so wish, but, as a consequence of
the issue of the Certificate, the said marriage will be voidable
at any time thereafter on the application of either or both parties.
This would officially record the changed circumstances of the
parties, but would leave their options open for the future, rather
than arbitrarily force the issue.
Divorce in England and Wales is currently granted
on the basis of the irretrievable breakdown of marriage. This
is a question of fact for the petitioner to prove on the evidence.
If both parties are saying that, despite the fundamental changes,
they are happy to allow the relationship to continue, and intend
to remain living together for the foreseeable future, I question
how this basic requirement for a divorce can be established? There
are currently five grounds which can be relied upon as evidence
to prove the irretrievable breakdown: Adultery, Unreasonable Behaviour,
Desertion, Two years' separation with consent, or Five years'
separation without consent.
The fact of gender change does not come within
the scope or spirit of any of these headings. Desertion or Separation
clearly cannot apply if the parties have remained together. "Unreasonable
Behaviour" would arguably be a ground for the spouse of a
transgendered person, but only if that spouse finds the turn of
events intolerable. Acceptance, toleration or rejection of the
changed circumstances is a matter of personal choice, and not
a decision that should be imposed by the State.
By the same token, there is nothing in matrimonial
law to say that a marriage becomes invalid if the parties are
no longer capable of sexual intercourse as a couple—if there
was to be such a principle, then a sizeable proportion of marriages
would become invalid because of illness, accident, incapacity,
old age etc.
I am mindful that, in parallel with the proposals
for Gender Recognition, there are legislative proposals for the
introduction of legally-recognised Civil Partnerships, conferring
rights on same-sex partners. If the consensus of opinion should
be that conversion of the previous marriage to a new civil partnership
is the more appropriate course after recognition of gender change,
I don't have a problem in principle with this provided that, with
mutual consent, the procedure of changeover can be made painless
and automatic, as an integral part of the process of gender recognition
ie without the parties themselves having to go through the stigma
and unpleasantness of a divorce. If this were to be an acceptable
solution then the Change of Gender Certificate would need to be
empowered to declare that all rights of the parties from any pre-existing
marriage are, by the consent of both parties, henceforth protected
and preserved and recognised in law as a civil partnership. I
am sure that, if the will is there, a suitable legal process could
be worked out, to provide continuity of the relationship in law.
In conclusion on this point, only those married
couples who are personally affected by gender change can possibly
know the extent of the human suffering this entails, for themselves
and their families. It is terribly wrong, and surely a violation
of human rights, for the State to seek to impose divorce, unless
and until the parties themselves are ready to pursue separate
lives. This must be left for them to decide, in their own time,
and free of any external pressures. But, in the meantime and possibly
for ever, to deny the transgendered citizen his or her legal entitlement
to recognition, to condemn that person to be treated by society
and the establishment as a lesser being (a "freak" to
be blunt) must be a blatant denial of that person's human rights.
On behalf of myself, and my courageous partner,
I urge the Committee to strongly recommend against imposing divorce
as a pre-condition of gender recognition.
(b) The need for those undergoing gender
reassignment to be protected in law against discrimination in
the provision of goods, facilities, services and premises
Sadly, due to widespread ignorance and misconceptions,
gender reassignment still attracts much mindless bigotry, prejudice
and discrimination. The basic requirement for anyone seeking medical
help for this distressing condition is to first go out and live
fully and openly in the desired gender, to prove that one can
fit in and survive in society, this being what is known as "the
real life test". Truly a "sink or swim" test for
the gender dysphoric sufferer. But what is so unjust here is that
these vulnerable and, most often, very frightened individuals
are being sent out into a world in which, with the exception only
of employment /recruitment/training, it is perfectly lawful and
acceptable to discriminate against that person, and to treat in
all respects as a second-class and unequal citizen.
To comply a ruling of the European Court of
Justice (ECJ) that the dismissal of an employee undergoing gender
reassignment was contrary to the European Equal Treatment Directive,
the Sex Discrimination (Gender Reassignment) Regulations were
introduced in 1999 (S.I. 1999/1102), to make it unlawful
to discriminate against a person in relation to employment and
vocational training on the grounds that they intend to undergo,
are undergoing or have undergone gender reassignment.
In all other respects, such persons remain open
to discrimination. Although it is rightly illegal to discriminate
and treat less favourably on the grounds of being of the female
gender, or on grounds of race, colour, nationality or ethnic origin,
or on the grounds of any physical or mental disability it remains
perfectly acceptable in law to discriminate against those who
are on the difficult road to gender reassignment, many of whom
will be on the verge of suicide because of the way large sections
of society treat this medical disorder. This is no exaggeration,
I speak from personal experience.
So a hotel, pub, club, restaurant, shop, landlord,
taxi driver, or any other service provider must not treat a woman
unfairly on the grounds of gender, but is free to treat anyone
going through gender reassignment as unfairly and disrespectfully
as they wish, without any sanction or restraint. To say "get
out, we don't serve blacks, or Irish, or Yanks, or women, or disabled
people here" would bring the wrath of the law down, but to
say "get out, we don't serve transsexual freaks here"
is perfectly lawful. The fact that Government has persistently
turned a blind eye to this anomaly, will by implication condone
such treatment in the eyes of the Great British public and some
sections of the media who take a perverse delight in ridiculing
and abusing transsexuals, with impunity. It is giving out the
wrong message, and the lack of a positive lead from the top makes
it that much more difficult for transsexuals to take their rightful
place in a diverse society.
In my submission, the Gender Recognition Bill
is the appropriate opportunity to urgently redress this injustice,
and to give to those poor souls who intend to undergo, are undergoing
or have undergone gender reassignment, the same protections against
discrimination in society as are already conferred on others under
the Sex Discrimination Act, the Race Relations Act and the Disability
Discrimination Act.
Thus, it would become unlawful for any person
concerned with the provision (for payment or not) of goods, facilities
or services to the public or a section of the public to discriminate,
on the grounds of gender reassignment, against a person who seeks
to obtain or use those goods, facilities or services
(a) by refusing or deliberately omitting
to provide that person with any of them, or
(b) by refusing or deliberately omitting
to provide that person with goods, facilities or services of the
like quality, in the like manner and on the like terms as are
normal.
This protection against discrimination would
apply to access to and the use of any place which members of the
public or a section of the public are permitted to enter, to accommodation
in a hotel, boarding house or other similar establishment, to
facilities by way of banking or insurance or for grants, loans,
credit or finance, to facilities for education, to facilities
for entertainment, recreation or refreshment, to facilities for
transport or travel, to the services of any profession or trade,
or any local or other public authority, and in relation to the
offer, occupation or eviction from housing accommodation. In short,
to the basic necessities of being able to live a full and normal
life in society, with the human respect and dignity to which we
should all be entitled.
In my conclusion on this second point, I can
do no better than quote the words of Julie Mellor, Chair of the
Equal Opportunities Commission, who said in a press statement
issued on 10 May, 1999:
"the EOC believes that the legality of discrimination
against transsexuals, however blatant and unfair, will continue
to be unclear in other fields such as education and access to
goods, facilities and services. In the EOC's recent recommendations
for updating the sex equality laws, Equality in the 21st Century,
we said it should include a guarantee of freedom from discrimination
on grounds of gender reassignment. Protection against discrimination
should apply to transsexuals in all fields. We can see no reasonable
justification for confining protection for transsexuals to employment.
It is a failure to respect the dignity and freedom to which an
individual is entitled. We urge the Government to regard this
as a first step towards eliminating unfair discrimination against
transsexuals in all areas."
I respectfully urge the Committee to seize this
opportunity and to strongly recommend to Parliament that this
glaring omission in the equality laws should be redressed, once
and for all, as part of the legislation now under discussion.
29 August 2003
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