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The blog of Monty Moncrieff
London Friend Chief Executive

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3rd July 2013: Spousal Veto and Gender Disclosure


There’s a lot to celebrate in the advancing of LGB & T rights just now, with marriage equality palpable in the British Parliament, and the Defence of Marriage Act struck down in the USA, and just this weekend high profile Pride celebrations were held in major world cities such as London and New York. Whilst progress is positive it’s accompanied by backward steps too, and one of the more sobering moments of the Pride march in London was reflecting on Peter Tachell’s campaign to highlight the plight of LGBT people in Russia where legislation has been passed with echoes of an even more sinister Section 28, forbidding the ‘promotion’ of LGBT equality. The stance was hammered home as all of those attempting to hold a Pride celebration in St Petersburg were arrested.


Back in the UK we’re seeing moves that could considerably disadvantage trans people’s rights in relation to both their identity and their relationships.


The Marriage (Same Sex Couples) Bill currently contains an amendment to the Gender Recognition Act that would give the married spouse of a person transitioning the option to effectively veto their application for gender recognition whilst they are still married. What’s the purpose of this? Well, presumably because it would be oh-so terrible for a spouse to end up in a same-sex marriage by their partner legally changing gender. Do you smell homophobia as well as transphoibia here? I certainly do.


This is a significant issue for trans people as frequently they report hostile reactions from a spouse upon announcing their intention to transition. Over half can expect a negative reaction, with 44% having experienced their spouse actively trying to prevent them from doing so. But it’s also the opportunity a hostile partner has to stall divorce proceedings – and with it the gender recognition process – that offers cause for concern, with almost a third of trans people reporting their partner made getting a divorce difficult.


Campaigners have been trying to highlight this anomaly as the Bill has made its passage through the parliamentary process. With little opportunity left the Campaign For Equal Marriage has launched a online campaign to send a message to the Government’s Equalities spokesperson in the Lords Baroness Stowell. You can support their campaign by telling the Baroness your thoughts here.


Sexual Discloure


However it’s not just in recognition of their gender that trans people fear their rights are being eroded. A recent legal case raises significant questions for trans people regarding disclosure of their gender history to sexual partners following an appeal court ruling. Briefly, the case centred upon a person born female who had consensual sex with a girl whilst identifying as a boy. Although tried as a woman her defence cited issues of confusion around her gender. She was originally given a three-year custodial sentence, reduced on appeal.


Like all UK legal cases it is case law like this which sets the tone for any similar prosecutions in the future, and it’s here that trans people have concerns. Running throughout the case is the notion of obtaining sex by deception, a familiar theme to many with a trans gender history. It plays into the ugly meme of trans people ‘faking’ their gender and trying to pull off (or ‘pass’, if you will) being somebody they’re not. This in turn delegitimises a person’s experienced gender and implies a group of people intent on tricking others.


For trans people who merely wish to assimilate into their true gender role, or for those who want to simply move on from medical treatments, this is potentially highly problematic. It raises questions as to whether non-disclosure of history to sexual partners could be found similarly criminal. Arguably for those with gender recognition this should be safer, but for those without – including those who do not yet meet the minimum time restrictions required to make an application – and for those beginning to explore their gender identity the situation is suddenly far less clear. (In the UK a person must evidence at least two years living in their new gender role before they can be granted gender recognition; a long time to manage living in one role with all your legal documentation in another.)


Trans commentators I follow online seem to feel that disclosure is generally preferred as an issue of safety, honesty and trust, but the consequences of disclosure hang permanently in the minds of those who have changed their gender identity. To disclose carries significant risk of reactions ranging from rejection to extreme violence along with the potential for the negative reactions of others to impact on virtually every aspect of your personal and professional life. Equality & Diversity expert Christine Burns outlines some of the many complexities of disclosure here. Journalist Paris Lees gives a frank account of her experiences here.


Writing in the New Statesman journalist Jane Fae contrasts this case with that of undercover police officers having sexual relationships with those they were investigating. She questions whether such sanctioned full-identity deception may not be a worse crime than deciding to keep schtum about a single aspect of your past.


The longer term implications of this ruling remain to be seen, but for the moment it does look rather like we have a strange dichotomy: you can break the law if you disclose the trans history of anybody else without their consent but you could be equally breaking the law by not disclosing your own.




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