The UK Gender Recognition Act

(As promised at end of last entry… please bear in mind caveats there. It’s been a bad two weeks, so this may be incoherent even if dry. The worst of both worlds.)

public flogging

I won’t be surprised if most people reading this even in the UK haven’t heard of the Gender Recognition Act, which came into force on 4th April. It might come as a shock, against the background of current regressive steps on civil liberties seemingly happening all over the place, that somewhere a pen slipped in Parliament, and they’ve brought in a relatively enlightened piece of legislation; or depending on your viewpoint, that they’ve opened the floodgates to gay marriage, open group sex in Trafalgar Square, the public flogging of bishops and the complete disintegration of the social fabric of Britain as we know it.

I’ve tried to plod through the legislation out of interest, but seemingly continuous exhaustion prevents me from understanding all the wherebys and heretofores. For those with more keenly interconnected neurons, it’s here, although you may want to postpone reading them for now:

The Act
Explanatory Notes

As in all great British institutions, the Explanatory Notes of course require explanatory notes, so a website has been set up to explain them. There are other third party sites explaining it too, like GRA-info.

The Act has been plodding on quietly through the Lords and the Commons since November 2003 (see that link for the archaic way these things happen), provoked by an event in July 2002 when the European Court of Human Rights found that the UK had acted illegally in two cases concerning discrimination against post-operative transsexual people, which implied they should have the right to change their “sex” on their birth certificates, with all the consequences this would bring (positive and negative) in terms of retirement ages, who they can marry, etc. etc.

What I wanted to talk about, if I’ve understood the Act right, is how silly it is in many ways. And also to (shhh) keep quiet about it, because passing this kind of silliness is a big step-forward anyway. I don’t want anyone to think I’m against it please! It’s a great step forward. The paradox though is that, having passed it, it’ll probably be revised drastically as a stepping stone to more sensible thinking on gender and biological sex, and maybe even same-sex unions. The latter of course is just what the extreme conservative elements fear, the left say “nonsense” to, and Blair denies they are even thinking about; but when you start to think hard about sex vs. gender, you can see the conservatives may well be right. Good-o!

First, a brief summary of the Act, as I understand it. I may be horribly wrong in aspects of it, as I don’t have anything approaching a legal brain, so please correct me if you do.

The basics: anyone can gain a “gender recognition certificate” which gives them the full national rights of their “acquired gender” if a panel agrees that the applicant:

* has, or has had, gender dysphoria,
* has lived in the acquired gender throughout the preceding two years, and
* intends to continue to live in the acquired gender until death.

“Dysphoria” is just an ugly way to make being transgendered sound weird and medical. On recognition, the applicant is entitled to a new birth certificate reflecting the acquired gender and can marry someone of the opposite gender to his or her acquired gender.
Previously, birth certificates were immutable, and although you could change some legal documents, this was skin deep as you couldn’t marry someone of the opposite gender to you. You were forced into gay marriages by the state.

There are all sorts of qualifications, such as a limit on applications in the first 6 months (to keep the admin down), what happens to someone who’s already married to someone of their own acquired gender, sub-sub-paragraphs about state pensions etc.

Clanger

To me the Act is packed with interesting anomalies, which reveal the underlying confusions over gender and biological sex in our culture: it’s of great academic interest to me to see what happens now this step’s been taken and the realisation dawns. I’ll try and explain some of the clangers I think I see, but please bear in mind I’m not criticising the Act’s existence. I’m all for it: I just think it’s the tip of a cultural iceberg.

First point of great interest to note: although the panel assessing applications requires “either a medical practitioner or a chartered psychologist”, it is not a requirement that you’ve had any surgery for a successful application. It will of course help, but you just have to prove you’ve been living in your “acquired gender” for a specific period of time. This is a surprise to me, where most other countries would require your genitals to be a particular shape to allow you to be legally treated as that gender. I’m not sure whether this is just a kind of oversight, or consciously enlightened and a recognition of the difference between gender and biological sex.

Secondly, “acquired gender”? I’d like to see someone “acquire” a gender – it’s not like you can pop into Woolies and buy one – again I’d argue this is a confusion between gender identity and role, but we’ll allow an implied “role” here. If we do though, are we back to the pre-feminist days of requiring people to act a certain way in order to be considered a woman (or a man)? Wearing heels or chopping wood? Hmm. Maybe we should legislate that every woman found doing a course in car mechanics is transferred to male legal status, pension rights, etc.?

little black dress

Thirdly, I considered all this academic to me at first, as the Act would be for those who have undergone surgery, and I’m sure it still is largely, but it does make me think fancifully “could I apply one day?”. Almost for fun. I certainly satisfy criterion (1) above, and how do they define “living in my acquired gender”? Almost everyone who is close to me, and most people who just know me know my gender self-identification: that I am, and ask to be treated as a she. Most of the other she’s I know wear the same clothes as me: usually jeans. Does the Act require that, say, once a week you slip into a little black dress and go clubbing? I’m referred to as female by almost everyone I know, albeit that my life is largely online or conducted by email right now. I am called something that is largely recognised as a female name: and what if I was called “Robin” or “Alex” from birth, or some other non-gender specific name? Would that constitute “proof” or would I have to change it to another female-sounding name?. My mother’s middle name was one generally recognised as a boy’s name – could she have just adopted it into more general use and successfully applied? This page on GRA-info explains the “evidence” required a bit better than the official documents, indicating that I’d need to prove a “transition date”, but implies I’d really just have to show that I’m paying phone bills with a female-sounding name, and the word “transition” implies it would have to be different from my birth name. Which is all a bit odd if you have a non-specifically gendered name at birth. In fact, non-transpeople (in the UK) aren’t required to have names that fit a gender map, but transpeople are? Am I being picky?

I certainly intend to live the rest of my life this way, satisfying criterion (3). So all I’d need to do is ring the phone company, and tell the few remaining people in my life who haven’t visited this weblog yet? Or would a government official need to follow me round Boots with a clipboard to check I’m wearing lipstick?

Fourthly, the right to marry someone who is not your own gender is a very sensible and natural right, if you like marriage, or at least the right to be given the same social status in a partnership as any other woman or man. But doesn’t this make you feel that the whole heterosexual marriage ethos is creaking at the edges? Not because transwomen are any less women than others, but, what was going on before the Act? Transwomen could only marry other women. And now, if they apply, they can marry men and are forbidden to marry women! And what if two transwomen want to marry? Why, all they have to do is only one of them apply under the Act! What will they do to protect same-sex marriage from mockery, legislate that all transpeople have to apply under the Act, whether they want to or not so that the State doesn’t condone a gay marriage by mistake. There are probably tens of thousands of gay marriages carrying on now in Britain undetected as we speak between transpeople and others – we must stop this evil!

I’m sorry to sound flippant, but for me it does make a mockery of the whole state and church-sanctified same-sex marriage malarkey. Maybe it’s just me. But it doesn’t make any sense, if the state is suddenly going to start accepting transsexual people in the gender they say they are, if they still allow them to marry people of the same gender should they deceitfully not apply under the Act and declare their true gender. Of course, what I’m really saying is not that there’s an underground transgendered menace in the country (even though there is, evil laugh etc.) but that it’s ridiculous to sanction unions based on gender, or biological sex, or a misunderstood mess of the two things. Or indeed in other areas. Do they really want male-gendered minds in female prisons? Or is it only genitals that matter? And what about in loos? I could go on, but… won’t. I’ll let someone else do it for me.

church in a vice

A quick diversion to look how caringly parts of the church are taking this. I feel bad about raising this, as I dearly love some churchgoers and don’t for a second think they feel the following way. But take a look at the self-appointed Christian Institute site which concentrates its analysis of how wicked the Act is based on spreading fears that (a) church leaders may be fined if they disclose transgendered people’s identity and (b) (seriously) that old ladies don’t want to meet those horrid transgendered freaks in the little girls’ room. They call this a fight for “religious liberties”. With a special gift for missing about 20 points at the same time, they go to great lengths to say how kind christians should be to intersex people, just so that they can diss the transgendered, by pointing out they are not the same (duh) and say how immoral it is to “deform and damage a healthy body”, which would presumably stretch to people who remove non-malignant moles or get their hair cut. They say point-blank that people who have ops have a “disordered or unhealthy mind”. See the “Helpful Notes” page, first document. In the second document, they show the church in a vice, drag up the usual dross about “some people regret sex changes”, spread a little fear about the church being fined and meeting “them” in the loo, and refer to transwomen as “he” throughout. In the final document on that page, they display staggering and desperate hate-speech by referring to a transwoman and her partner with the caption “These Men Want To Marry” and say it would be a offence against “public decency” to allow a transwoman into a female-designated church activity. In a fabulous set of faux-pas, they seem to entirely miss the point that the Act does not require surgery, and thus people like me presumably aren’t committing some mortal sin unless we clip our toenails. It also omits to mention transmen, presumably because the scare tactic isn’t as high.

thesemen

It comes as no surprise having looked at the registered address of this Institute that the feverishly anti-gay pro-creationist anti-pluralist Rev David Holloway from Jesmond, Newcastle-Upon-Tyne pops up in these leaflets, a man who signed his name on a letter by a Dean Jensen claiming he “did not call Rowan Williams a prostitute; I did not refer to him by name or by title”, which sounds a bit to me like claiming you didn’t call your sister a fat cow because you didn’t use her actual name. Instead of contemplating his mean pinched little face any longer, I’ll return to my main theme: but hope, and would be delighted to hear, that other parts of the church have a more enlightened and less doomed-to-failure approach. The Bill’s been passed and the Act’s in place! Update your webpages and get over it!

So finally, a quick look at birth certificates themselves. A large part of the struggle for this Act in the last decade or two has centred around the wish to change birth certificates, specifically the box ticked when a child is born for “sex”. Prior to 1969 you said “boy” or “girl”, after then “female” or “male”. Does this mean “biological sex at birth” (it is a birth certificate after all). If so, does it make sense to change it later? Or is the Act recognising that it really is a gender box? Or is it just a bad patch up to give transpeople the rights they deserve according to their gender which depend upon birth certificate, but shouldn’t?

If it’s acknowledged somewhere that it means “biological sex at birth”, then I guess I don’t mind mine staying “M”. If it means gender, then I do, because they guessed wrong. If I had surgery, I still can’t see in theory that I’d need to change it from my birth biological sex (although of course if certain rights depended on it, I’d want to). And if I were intersex, I’d want it to have a M/F, or a star in it. Preferably gold for “special”.

A “gender” and a “sex” box would make it nice and clear, but then you’d have to fill the gender box in later, which is pretty silly for a birth certificate. A continuous “life” certificate would make a lot more sense, which gave people access to certain rights, if we have to differentiate rights based on gender identity or body differences at all.

Or of course, there could just be a jeebo box.

6 thoughts on “The UK Gender Recognition Act”

  1. This “life certificate” sounds a litte bit like the identity card them politicians have been talking about :)
    (lovely, thoughtful, clever post as ever, sweetheart)

  2. Honey, one of the reasons why the Act made me happy was the lack of a biological intervention requirement (hormones, hysto, SRS, etc.), if I read it correctly also. In the States, the biological emphasis is so overriding in our case law; it’s evident in the reasoning of the _Kantaras_ case, for example, in both the lower court and court of appeals. What I’m seeing is a trend in some legal holdings that has me greatly concerned because it reinscribes the status quo (i.e., transphobia and the resulting lack of rights). If one species of biology-based reasoning doesn’t work to disenfranchise a TG/TS person, then another type is used. For example, “an FTM cannot legally be married to a woman because the FTM still possesses a uterus, so the FTM is actually a woman

  3. Mark first of all: thank you so much for just keeping on being sweet about this weblog. And you’re right about the life certificate! Eek. At least we mightn’t have to pay for it.

    Jen, there’s so much sense in your comments I don’t know how to reply, but thank you so much for taking the time! You said:

    Am I terribly naive to think that the lack of biological requirements was intentional rather than a fluke that will be drafted differently in the future?

    … and you know, I’m not so sure it’s naive: I’m pretty sure, scared as I am to sound hopeful, that it’s no fluke. The House of Lords in the UK, filled as it is with often unelected octogenarians snoozing on red leather, seems to be making a habit of sticking its finger in the eye of the increasingly scary spin tactics and undemocratic sneaky ways of the House of Commons – and maybe this is another example. Or maybe most people just don’t care much, and shrug, and think they’ll never meet a transperson anyway (little do they know…). It’s a very odd country, here: in some ways wildly repressed – I get incredibly jealous of what seems to be the liberal social attitude to transpeople in big cities in the US, and the level of organisation and activism – and in other ways very laissez-faire.

    I didn’t really get the full impact of how legislation was going in the US, and how body-based it was. Extreme conservative elements I guess are in much more power there and can use such tactics to delay and obfuscate? Here, we have intentionally milder-sounding conservatism for now which gets by by pretending to be the middle-ground, and no really strong repressive bible-belt. I do find it odd, scary even, like this entry may be a hostage to future fortune, to say that something vaguely enlightened and non-repressive slipped under the radar and got through here.

    And indeed yes, I’m sure you know I share your misgivings about the policing of gender-identity recognition based gender-role behaviour. I’ve found myself worrying about my own presentation amongst those who may be trying to make the “imaginative leap” into seeing me as me. I don’t want to set them back, and yet, I want to stay me. It’s not something I’ve resolved in any sense, except to keep repeating the mantra, that being transgendered is about “hearts not handbags”.

  4. As far as I know, the bill was written (or whatever they do with bills!) in close consultation with a trans rights group called Press for Change. The lack of surgery requirement was almost certainly suggested by PfC.

  5. thanks for the info – I am a bit confused about the Act and your comments and discussion and links have been a great help.
    cheers,
    Mimi

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