Thursday, April 14, 2011

Trans Media Watch condemns BBC failure to take responsibility for transphobic broadcast

This post is based entirely on a press release issued by Trans Media Watch. For further commentary see this article


Trans Media Watch
BM TMW, London, WC1N 3XX

TMW logo

Trans Media Watch, the organisation that campaigns for transgender people to be treated in the media with accuracy, dignity and respect, has condemned the BBC's response to complaints about a recent episode of Russell Howard's Good News. The episode contained a sketch based on the real life decision by a Thai airline to provide employment to kathoey (transsexual) women. It featured two highly sexualised trans characters who at one point revealed their male genitals to customers. It also showed a passenger being physically sick in response to the sight of these characters.

The BBC has argued that these characters were not intended to represent real transsexual women and that they were instead intended to "poke fun at the age old tradition of men dressing as women for laughs". This ignores the fact that specific mention of the real life news story was made when the sketch was introduced. It also misrepresents British comedy traditions in which comedians have spoofed certain female stereotypes rather than spoofing cross-dressing itself. Characters presented by the likes of Kenny Everett and Les Dawson would never have been revealed to have male genitals. Furthermore, they were affectionate caricatures, not objects of ridicule or physical disgust.

It is unclear on what basis the BBC thinks its viewers will be able to distinguish the characters in this sketch from real trans people, especially as the public is generally poorly informed about trans people.

It is difficult to imagine the BBC justifying a similar comedy sketch whose subject was another minority group, such as Jewish people or black people.

Last month the BBC asserted that its own constitution provides protection for transgender people equivalent to that provided by Trans Media Watch's Memorandum of Understanding. It is evident from this sketch and from the response to complaints that this is not the case.

Trans Media Watch has produced widely respected research which demonstrates that the ridicule of trans characters on television harms real trans people in real life. Over a fifth of trans people have experienced verbal abuse inspired by material of this type, with many suffering it on a daily basis. Almost one in ten has been subjected to physical violence which they believe to have been related to an item or items in the media. Media misrepresentation and ridicule is also a significant factor in family breakdown.

The decision to employ kathoey women as flight attendants has been widely recognised as a positive social move, receiving praise from publications such as The Telegraph. Kathoey women are subject to prejudice in Thailand and often find it difficult to secure employment.

The BBC must take immediate steps to improve its approach to the representation of this vulnerable minority group

Wednesday, April 13, 2011

Why I am withdrawing from the Parliamentary Forum on Gender Identity

The Parliamentary Forum on Gender Identity has been in existence since 1994 and I have been a member since 1995. The Forum brings together trans stakeholders, parliamentarians, clinical specialists, regulators, departmental officials and other significant contributors to work on influencing policies affecting trans people's lives in Britain. Until 2010 the Forum had been chaired very successfully by the Labour MP for Birmingham Selly Oak, Dr Lynne Jones. You can hear me interview Lynne about her work and the Forum in this Podcast.

Today, however, I have officially withdrawn from the Forum. I set out my reasons in an open letter to the new chair which is reproduced below.

An OPEN LETTER to the Chair and members of the Parliamentary Forum on Gender Identity


To: Baroness Joyce Gould
cc: Revised membership convened for meeting on 26th April 2011

Dear Baroness Gould

First of all may I take the belated opportunity to welcome you to your new position as Chair of the Parliamentary Forum on Gender Identity.

As a member of the forum since shortly after it began (I came on board in 1995) I know very well the important history of this group, and the potential which it has to influence matters concerning the lives of trans people.

I know at first hand what an amazing job your predecessor Lynne Jones achieved. After looking at your public record I was happy to endorse the proposal that you should succeed her.

Sadly, however, it is with immense sadness that I must write to inform you and the membership of my decision to withdraw from the Forum.

I do not take this decision lightly. However, events of the last few days have led me to question the validity of the organisation going forwards, with its' mysteriously altered membership excluding some major stakeholders and the remainder looking oddly unrepresentative.

I value my personal reputation far to highly to allow my name to give implied endorsement to the organisation in the form it appears to be taking.

I wrote to the Forum's new secretary (and cc'd you) last week, to express the concern that the Forum was being reconvened without representation from the Equality and Human Rights Commission or Charing Cross Gender Identity Clinic. The only acknowledgement I received was to indicate that my communication was being passed on to another member of the Forum, Zoe-Jane Playdon.

So far I have received no reply to my concern about membership, although I see that the suggestion to include EHRC was subsequently made to the group by Terry Reed and appears as though it will be acted upon after she mentioned it.

Had I thought to expand my letter last week I could have added the concern that the revised membership also appears to omit any representation by the Gender Trust - the country's largest charity supporting trans people. It also seems to omit any representation of trans youth. None of the community stakeholders on this list appears to be much younger than 50. Many are retired.

I could also have added the concern that few if any of the membership (myself included) have any present day connection with real grassroots trans opinion. GIRES could claim that to a limited extent, and I certainly welcome the inclusion of a representative of the Trans Resource and Empowerment Centre, which I strongly support.

However, I am amazed that nobody appears to have thought that it would have been appropriate to refresh the group with present day activists from groups such as Trans Media Watch or an FTM group or Trans London -- people who have an up to date mandate to be able to describe what trans people actually want and need and are out there campaigning actively.

The Equalities Minister Lynne Featherstone is currently running a programme to improve trans rights, so why is a representative of the Government Equalities Office not included? EHRC is about to publish the results of an investigation around NHS provision, so why were they omitted from the list until someone thought they might be relevant?

Without meaning any personal offence to any erstwhile colleagues, many of the names I see here look decidedly 'tired' and out of touch. It would seem that the Forum has sought to perpetuate the past glories of people whose membership was once unquestionably valid, but who now look like an exclusive club for a group with a misplaced sense of entitlement.

This is a dangerous state of affairs. The Parliamentary Forum has the potential for immense influence. However that influence can be damaging if half of the committee aren't in regular communication with the present day cohort of trans people; if they only represent one part of the community in particular (transsexual people who transitioned years ago); and when they may be out of touch with the way services have developed or are developing.

I don't say this applies to everyone; however, I would urge members to look at themselves critically from that perspective. In particular, they should ask themselves whether the present generation of active campaigners have clue who they are or whether they would consider you equipped to advise on what they need.

These are matters which I would have been content to bring to the table. After all, I've worked in this field for many years; I've been a forum member for 16 years; I've been heavily involved in the design of NHS Commissioning and Designation Policy; I chaired the working group set up by the Department of Health which commissioned most of the officially branded literature on health-related issues; I wrote the definitive NHS guide; I worked on passage of two of the most significant pieces of legislation; I'm a nationally respected Equality and Diversity specialist; and I work at senior management level on NHS equalities strategy... I might have something to contribute.

The main reason I am withdrawing, however, is the wholly inappropriate way in which members of your committee have, behind the scenes, gone seemingly out of their way to exclude the largest and most expert clinical stakeholder body of all, Charing Cross Gender Identity Clinic.

I won't rehearse the reasons why that is so spectacularly wrongheaded. The fact that Charing Cross treats 85% of NHS referrals every year, however, would give a clue. The fact that they have significantly modernised their approach and have been very impressively engaging with their patient base is another.

I won't seek to apportion motives. However, I have seen enough of the correspondence that has been bouncing back and forth behind the scenes to feel that the Parliamentary Forum is not an organisation I wish to be associated with.

I do hope you sort it out. However, that will have to be without me.

Yours sincerely

Christine Burns MBE
Equality and Diversity Specialist


Monday, April 11, 2011

Revisited: The end of a chapter

In the past couple of weeks I've been revisiting on the spot news accounts that I wrote during the 1990's to support an earlier contention about one-sided reporting and distortion of trans experiences. Here is the third and final example.

The story so far

Number Ten

Each of the accounts that I've showcased illustrates quite major milestone events which needed an amateur journalist like myself to record them because the mainstream media had no interest.

Dusting off these accounts has acquired an added importance now, as the original web site on which they were published and stood for 15+ years has now disappeared. The only hope you have of finding them in their original form is the Internet Archive.

It wasn't that mainstream newspapers didn't want to write about trans people at all. This recently remembered article is typical of the material which they were quite happy to print regularly, at the drop of a hat.

When you read Nigella Lawson's article take a look at the date on it (Feb 6th 1996) and notice how close it was to these events in Parliament (Feb 2nd 1996) that were otherwise not mentioned by the mainstream press at all. That's what 'erasure' means.

And, of course, negative articles in the Times would have to have been framed rather differently if they were to have acknowledged the existence of a major international conference like this.

This is why it can be galling for trans campaigners to be accused of attempted censorship the moment they ask for a little of the space routinely given to detractors to be handed over to them.

The end of a chapter

The events I've so far revisited took place in 1993 and 1996 respectively. For my final example we move ahead just another eighteen months to October 1997.

The Government had changed -- Tony Blair's Labour administration romped into office with a massive landslide in May of that year.

There were signs of hope for us as a tiny campaign too -- the events below took place in the same month that we were suddenly offered exhibition stand space inside the Labour Party conference in Brighton.

The press even appeared to be interested in what we were doing. However, as you'll see, 'interest' was as far as it would go...

Presenting the Press for Change Petition

Posted Saturday 1st November, 1997 to the press for change email list server "UKPFC-News"

When a technical glitch on the Australian computer running this service threatened to put UKPFC-News out of action this weekend, it seemed almost fitting in a way.

There are times when silence can be deafening; Times when a vacuum can be full of meaning.

If you'd logged on today for the anticipated account of our petition delivery and press conference, and found it wasn't there though ... If you'd gone down to the library and checked diligently through Wednesday, Thursday and Friday's national papers and found nothing reported ... If you'd watched all the day's news reports and seen nothing more topical than the Spice Girls mouthing some meaningless platitudes about people who died for our freedom ... THEN you might have felt a frisson of intrigue, or wondered what dark and evil event had occurred on Whitehall this week to obliterate the actions of fifty UK citizens from the news.

There are, as you know, some places on this earth where such things happen.

Almost as quickly as it went down however, Kym Kovan's computer was back up again today ... stealing the opportunity to turn a computer hiccup into a statement ... and turning the responsibility for what to write about the week's events back into an editorial one.

So, robbed of my excuse for a quiet night away from the keyboard ... and powered by a different set of editorial values and imperatives than those who shape the news that makes our world, here IS the world's only historic account of the week when fifty UK citizens went up to London to do something their kind had never done before.

It was the day when transsexual people came out on the streets to protest ... and the day they disappeared from every newspaper and television in the country.

Curious coincidence.

Nice day for a protest


If you're GOING to have a rally, of course, it's much nicer to have one in the sun. Walking round Parliament Square and down the sunny south side of Whitehall on Wednesday lunchtime I couldn't help commenting to Alex Whinnom (who organised it all) that maybe the sun shines on the righteous. It was certainly one less factor to worry about, as we both wondered, perhaps, whether we were about to preside over the biggest flop in our campaigning history.

Wind or rain might have gauranteed it. Even on a bright, pleasant autumnal afternoon, however, who would have liked to lay odds on how many traditionally media-shy transsexual people were prepared to come and stand under a banner in public, proclaiming their status ?

As we crossed the road by the Cenotaph, towards the gates that bar the entrance to Downing Street, I have to admit I had a moment's panic though. There were certainly people in abundance there ... it's a popular tourist venue .. but where were "ours" ?

I'd missed the point, of course. How DO you spot a crowd of transsexual people in their natural habitat, lost in a sea of humanity milling around on the pavement ? It's not as easy as people think. Only as we got closer, and as friendly and familiar faces turned to greet us, did I realise that we DID have a real live protest rally and that, more to the point, it was in full swing and we were the last to get there !

Mind you, it was still difficult to work out where WE ended and the general public began in the mele. Two television crews were there ... the BBC from Bristol, following Ros Mitchell for the day, and Central Television, covering for ITN News because Dr Lynne Jones MP is on their patch. Both crews were busy interviewing little groups when we arrived. A rookie reporter was there too. As far as media coverage was concerned that was it though !

This isn't to say that the media hadn't shown interest, mind you.

The press release went out from Lynne Jones's office on Monday morning to all the normal agencies and news desks. A release on Westminster letterhead, from the office of a sitting MP, is usually expected to attract a bit more attention than one sent by a pressure group on its' own. Sure enough, by Monday afternoon, I got a couple of calls at work too. The fact that it WAS just two calls didn't surprise me as I expected the main interest to begin in the evening, or or Tuesday.

There are calls ... and there are CALLS though ..

The first was from a cockey sounding Sky News reporter, who cheerfully assured me that he could do a lot for our campaign, but only if they could do it THAT afternoon ! He had it all planned. "We want to come and film you at work ... talk to the people you work with ... or how about visiting your home ?" When I informed him that I was working for my employer's clients, in a secure area of an Investment bank, and that I was available to talk about serious rights issues as a campaign representative OUTSIDE of working hours, and that I live in Cheshire, not the City, all the chirpiness evaporated though. Besides, we wanted coverage for what we were doing on Wednesday, not a probe into my working life.

Wednesday wasn't any good for him of course. Neither was Tuesday ... inside or outside of working hours. It dawned on me that we were the man's way of filling a gap. We could have been protesting the price of Pilchards for all he cared ... just so long as he could film me eating them that night. I passed him on to Susan Marshall (wondering whether this was a friendly thing to do to her) and then got back to my work. Later, Susan's secretary confirmed my impressions. "What a nasty little character !", she said. (Well, actually, she didn't say "character"). Needless to say, he got the same reception in Oxford as he got in London.

Sky News wasn't going to be reporting us on Wednesday, therefore. Good riddance.

The next call was from a researcher on Nicky Campbell's Radio Five show ... very pleasant and friendly, if you discount the essential lack of manners in the short dialogue we had ...

"Um, I'm from Nicky Campbell's programme on Radio Five ... I understand you're from Press for Change and you're presenting a petition at Downing Street on Wednesday".

"Yes, that's right.. "

"Have you got anyone FAMOUS taking part ?"

"Well, no actually ... the point is that this is a group of transsexual people taking a protest along on their own behalf".

"Oh, sorry ... you see, the programme format's really about celebrities talking to Nicky"

"So, you don't want to talk to US then ?"

"Well, UM ... er ... no ... sorry !"

Well, she did say sorry ..

Meanwhile, back on Whitehall we were at last beginning to arouse the curiosity of the sightseers, as we unfurled the Press for Change banner, and stood under it ... feeling like lemons. When the police came and pushed us gently away from the kerb though it started to feel a bit more like a REAL rally and I pondered whether I ought to try and say something to the assembled group. On the other hand, as I'd already discovered, my voice seemed tiny and ineffective against the noise of the passing traffic ... even when I strained to shout above the heads around me ... so in the end I decided to save the rhetoric for the press conference.

When Lynne Jones arrived, the police came and asked who was going to make the walk up Downing Street ... and then half a dozen of us were allowed through the gate, and ordered to an exact spot on the pavement beyond, to await our moment.

You really begin to appreciate the clever way in which any semblance of democratic empowerment is snuffed out by authority at times like this. The policeman explained EXACTLY how we were going to proceed and stated, flatly and with no room for compromise, that there WOULD BE NO speeches or interviews outside the door of Number Ten.

So, with our police guard making sure we didn't stray from our permitted course, we marched up Downing Street, into the lenses of the TV cameras awaiting our arrival and stopped on that famous step, in front of an impossibly glossy black door. We got out a few petition sheets for the cameras. Smiled. Put the sheets back in their boxes again (just over nine and a half thousand signatures at the final count) and knocked on the door.

The door opened. The doorman beamed and behind him I got a tantalising glimpse of red sumptuousness. I just wish I'd known THEN that the man was due to retire the next day. Maybe we could have made it a more human occasion than simply handing over two large box files and smiling. Maybe we could have got some tips from him too ... because the next day HE was all over every evening bulletin !

Everybody, it seems, gets on the news except ...

No time for thought though. The policeman was marching us back down the street almost as soon as we'd handed the boxes over and, seconds later, we were back on Whitehall.

Five years effort. Almost ten thousand hard won and thoughtfully contributed wishes of goodwill. Delivered, gobbled up by the system and forgotten in under five minutes.

This wasn't the end though.

Marching into the arms of democracy

Marching down Whitehall  Oct 1997

The next bit was to march as a group, under the Press for Change banner, up Whitehall and into the Houses of Parliament, for our press conference at 2pm.

Oh ... but I'm not to call it a "March". Marches aren't allowed. One can walk. One can move. One can't "March" without permission though. And you have to do your "walking" or "moving" on the pavement, with hundreds of sightseers and passers-by going both ways at the same time ... and being careful not to get your banner wrapped round a lampost, or leave half your party behind at the traffic lights on Westminster Bridge Approach.

Just what Oliver Cromwell thought as we struggled past the world's holidaymakers, past Big Ben and along the narrow paving, I don't know. The policeman who confronted us, as we neared the public entrance was in no doubt though...

"I'm sorry, you can't carry that banner when Parliament is sitting, who's in charge ?"

It seems we were breaking a very ancient law that prohibits protests outside of Parliament when the people you want to protest to are inside. (Quite why you'd WANT to protest outside at any other time is beyond me).

The Angry man in a helmet was unimpressed when I offered myself as the nearest thing he was going to get for a leader. Alex was some way further back down the line. What surprised me more, however, was that for the second time that day our host, Lynne Jones, who was walking beside me, had almost as much trouble getting the respect of the local police too ... at least until she produced her Commons ID card, when the tone suddenly turned to "M'am". I never quite graduated past "You stand there !".

The BBC rushed up gleefully at this point.

"Have you been banned from going inside ?" asked the reporter ? You could see the disappointment on her face, when we explained that we hadn't.

For somebody like me ... frightfully middle class, not used to marches and demos, and accustomed to a very different reception from the police under any other circumstances, it was an object lesson in what happens when you march under a banner, and become a "threat".

Satisfied that we weren't going to blow the place up though, the police stood us in the little coral between the fence and the arched public entrance, awaiting our chance to go inside. Parliament was busy that day. Several groups were booked into the Jubilee Room, where we planned our press conference ... and only one, it seems, was to be allowed in the building at any time.

The depersonalisation didn't end there, either ... when I was ordered (not asked, but ordered), to stay back and identify any members of our party who strayed up the wrong steps towards the central lobby, rather than down into Westminster Hall, where we were headed. (I didn't like to point out that I had no more idea of who belonged in our party than them !)

It's odd, because on the half dozen or so occasions when I've come to the same place, and jumped the public queue outside, armed with my invitation to parliamentary forum meetings, the reception's been very different. It wasn't like that either when I passed the same way, a couple of years ago, in a party of 30 "Conservative Ladies", on a day out to see the workings of Parliament. Policemen like to flirt ... and I'm certainly not averse to innocently flirting back. My entrances to the Palace of Westminster have always usually been pleasant, polite, smiling affairs. On this occasion, however, I found the contrast rather chilling. Today I was not a person under that banner ... I was not me, but someTHING else.

Press, what press ?

The press conference itself, reminded me of our fringe meeting in Brighton, three weeks previously. Seats stuffed with transsexual people ... but not a lot of press ... or MPs for that matter.

To her credit, Lynne Jones had rushed into the building ahead of us, and managed to drag three colleagues from the tearoom to join her. And note that I said the TEA ROOM ... not another meeting. Plenty of MPs ... all of whom had been sent a letter announcing the conference, weeks beforehand ... found it more important to drink tea than come and see us.

The press coverage had diminished a bit by this point too, with the two television cameras down to one ... albeit now supplemented by a stills photographer from the Press Association.

So we said our pieces to an audience of the converted, and then adjourned outside for a few photos to be taken, before urgently seeking a coffee shop in which to warm up and get a drink.

The sun may have been out, but the air was chill. Or was it the air ?

The end of a chapter

Outside Parliament

I paint a gloomy picture, perhaps ... though that's deliberate. And I've recorded the occasion as a set of impressions, rather than a more impersonal report, in order to try and better convey the sense of being there, rather than to lose what personal record there is behind a speech of self-congratulation for the campaign.

After all, if I portrayed the day as a huge unmitigated success then I wouldn't be telling the story of something which, when all's said and done, was hugely historic ... and certainly significant.

It was the first time ever that Press for Change brought out a crowd of people, in the United Kingdom, to protest for civil rights.

It wasn't just a handful of people either, but FIFTY.

It doesn't SOUND a lot, by the measure of most public lobbies, of course.

Whichever way you look at the number, however, it's about 45 more people than we might have hoped to muster in public a couple of years ago ... and in the press conference, I reminded the audience that when the PFC petition began, about six years ago, it was a struggle just to get people to SIGN the form, let alone go out in the expectation of meeting the cameras and press.

Fifty, whichever way you look at it, is an amazing figure ... and it means that NEXT time we take to the streets, we should be able to manage far more. For if there was ever a proof needed that we've made the streets safe for folk to protest on, then this week produced it.

IT WAS ALSO YET ANOTHER OCCASION when the press proved that a mere gathering of transsexual people is no longer newsworthy in its own right. What's more, on THIS occasion, even though the cameras CAME, news editors decided not to use the material they'd obtained.

More than that however ...

The occasion was symbolic of a change in the nature of the campaign ... a change that has crept up on us over the last eighteen months or so, as the press and public alike have worked "shock, horror" out of their system, and are just beginning to realise that there's maybe something to listen to and learn.

The Press for Change Petition belongs to a different era. It originated at a time when a petition was about the only form of public affirmation we COULD seek.

Petitions ... even when they have fifty thousand or five hundred thousand signatures are not very potent instruments. The very concept of a petition ... scratching around for proof that people support your case enough to sign a piece of paper ... is a symbol of a campaign that's looking for endorsement by its peers. Petitions don't make things happen ... they're what you do when you need to start by proving that people support your case.. We've passed that point already though.

Even as we carried the petition boxes along Downing Street, I was aware that the act of delivering it was no longer a fundamental part of the campaign strategy. Other than underlining that we'd been working hard for all those years to do OUR bit to bring transsexual treatment in from the political cold, the petition didn't ADD anything to what we are now already doing. It merely shows we have support ... to people who, when all's said and done, tacitly support us.

The real messages were in the fact that we can now bring people out in numbers to campaign ... and in what you can deduce from the media's assessment that fifty transsexual people at the gates of government are not newsworthy.

Of course, it was a neat end to an autumn campaign in which FAR more significant advances had been made, and it was a recognition of the belief and support people have given us over the years we've worked. By the time this Wednesday had arrived however, our campaign had moved beyond the point where a petition was an ESSENTIAL..

Delivering it, therefore, was like reaching the end of an important chapter in the campaign's development. Putting our affairs straight before we move on.

What lies ahead now is a different SORT of campaign. A time when we consolidate and assess the various openings we've got, and build more of the same. A time when we stop spending all of our time justifying WHY we should be listened to, and start to spend more time on WHAT we need to say. A time when transsexual people move from being objects of ridicule and fear, into subjects of interest and respect ... people with an experience and lessons which are of wider benefit.

A new chapter, in fact.

Christine Burns

Sunday, April 03, 2011

What will be left soon of the Public Sector Equality Duty?

Last autumn most of the provisions of the the Equality Act 2010 came into force, replacing a patchwork of over hundred separate Acts of Parliament and regulations enacted over the last 40 years. This week, from April 5th, a new integrated Public Sector Equality Duty comes into force as well -- or, at least, parts of it.

The simplification of all this law is welcome. It is easier to understand and covers more 'protected characteristics' in a largely consistent fashion. Yet, the provisions are also a shaddow of what the last Parliament debated and passed. Bit by bit, the new Government has chipped away parts and seems intent on continuing to do so. Where does this stop? And does what's left have any teeth?

First the good news

Theresa May

Time flies. Just over two years ago we were still only able to talk about the theory of rationalising equality legislation in Britain and what we expected to see.

One year ago this week, April 7th, in the nail biting final days of the Labour administration, the legislation was passed into law by Parliament.

It was, literally, one of the last gasps from the administration, completing the steps needed to go onto the statute book just before Parliament was dissolved for the election. And it only got through because the Conservatives (not wishing to frighten the horses) let it just pass by, with only token opposition.

That was April 2010.

Once in power...

Once elected, and after all the focus on setting up a coalition with the Liberal Democrats had filled much of the first few weeks, the new administration started flexing its' new power though.

First to go was the portion of the legislation concerning the Socio Economic Duty.

A review of this and other provisions of the Act was announced by Theresa May shortly after she came into post as Home Secretary and Minister for Women and Equalities. It took the form of a quick consultation, published in August.. The axe fell in November.

The socioeconomic duty would have required all public bodies to assess whether they were addressing inequalities caused by class factors, encouraging them to improve, for example, health and education outcomes in more deprived areas. May described this as 'ridiculous'.

Indeed, it is the Public Sector Equality Duty (PSED) where most tinkering has occurred. By contrast, the actual prescriptive part of the legislation (who is protected, what types of discrimination they are protected from, and in which circumstances) was relatively unscathed.

This is probably because the latter provisions are at the core of the main legislation and, to change most of them would have required Parliamentary debate. Besides, the Conservatives had just been seen to allow it through the last Parliament with only token opposition. So, it would seem mightily strange to backtrack almost immediately.

As I'll discuss in moment, this Government can also afford to be relaxed about the Act's main provisions enabling people to seek justice after discrimination experiences, because it is going to become a whole lot harder for the average citizen to use them.

Regulations, regulations

By contrast, detailed decision making about which parts of the Public Sector Equality Duty should come into force, and when, were left to the discretion of the Secretary of State to set out in secondary legislation -- so-called Statutory Instruments (or Regulations) which are usually laid before the house without debate, and typically pass into effect 30 days later.

The socio-economic duty is not the only probable casualty.

Whither the Specific Duties?

Although, the main part of the PSED (the General Duty) comes into force this week, the Government announced an eleventh hour decision to rethink and consult upon the Specific Duties, and thereby delay their introduction.

In a Ministerial Statement published on 17 March 2011, Theresa May, as Minister for Women and Equalities, announced to Parliament the publication of a policy review paper seeking views on new draft specific duties regulations. She said that,

the proposals are designed to deliver a clear focus on transparency, freeing up public bodies to take responsibility for their own performance in delivering equality improvements and to publish the right information so that the public can hold them to account. This approach will be better for equality because it will focus on the delivery of results, not the performance of bureaucratic processes.”

Responses to the consultation have to be submitted to the Government Equalities Office by 21st April, leaving little time for many stakeholders to get their act together. You can find out more about this at the GEO's web site.

What are the General and Specific Duties?

Before going further, I ought to explain what these terms mean.

Firstly, the idea of Public Sector Equality Duties as a whole first came about in 1999, as a result of the McPherson Enquiry into the death of Stephen Lawrence.

McPherson concluded that there was a culture of institutional racism at that time in the Metropolitan Police force and that existing legislation, such as the Race Relations Act, had failed to dent this.

The problem was that any actions had to be brought by the victims of discrimination and there was no obligation on public authorities like the police to do anything about the systemic problems which such cases revealed.

These recommendations were taken up in the new Race Relations Act (2000), which included a positive duty for public sector bodies to fulfil. After allowing time for people to prepare for this, the original Race Equality Duty came into effect in April 2002. This was followed by similar provisions for Disability (Dec 2006) and Gender, including gender reassignment (April 2007).

The Equality Act took these three established provisions to the next level by adding similar obligations in respect of Sexual Orientation, Religion or Belief and Age (although the age provisions are also still subject to consultation and ministerial decision). The duty relating to gender reassignment has also been strengthened and clarified.

This is why, although not perfect, the new PSED coming into force this week does represent an advance of kinds for many. The question is whether it has any practical teeth.

The General Duty

The general duty is explained in detail in a series of non-statutory guidance documents published by the Equality and Human Rights Commission.

In summary, those subject to the equality duty must, in the exercise of their functions, have due regard to the need to:

  • Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act.
  • Advance equality of opportunity between people who share a protected characteristic and those who do not.
  • Foster good relations between people who share a protected characteristic and those who do not.

These are sometimes referred to as the three aims or arms of the general equality duty. The Act helpfully explains that having due regard for advancing equality involves:

  • Removing or minimising disadvantages suffered by people due to their protected characteristics.
  • Taking steps to meet the needs of people from protected groups where these are different from the needs of other people.
  • Encouraging people from protected groups to participate in public life or in other activities where their participation is disproportionately low.

All that sounds fine, but here's the rub: The whole point about these duties is that it is the responsibility of the public sector bodies involved to carry them out. The duty can only be effective if there is some form of scrutiny to assure that they do.

The scrutiny is underpinned by the Specific Duties, which set out what organisations must do and publish to show how they are complying with the general duty, and by the work of the Equality and Human Rights Commission, which is one of the few players with sufficient power to bring non-performing bodies to Judicial Review in the worst case scenario.

Take away or inhibit either of those arms of governance and the general duty becomes just words.

The Specific Duty

The Specific Duties vary a little bit between public sector bodies but the essence is that a public authority covered by the specific duties (listed body) is required to:

  • Publish sufficient information to demonstrate its compliance with the general equality duty across its functions. This must be done by 31st July 2011 (and by 31st December 2011 for schools), and at least annually after that, from the first date of publication.

This information must include, in particular:

  • Information on the effect that its policies and practices have had on people who share a relevant protected characteristic, to demonstrate the extent to which it furthered the aims of the general equality duty for its employees and for others with an interest in the way it performs its functions.

Public authorities with fewer than 150 employees are exempt from the requirement to publish data on their effects on their employees (which will probably therefore exempt most GP Commissioning Consortia), but all public authorities have to publish the following information:

  • Evidence of analysis that they have undertaken to establish whether their policies and practices have (or would) further the aims of the general equality duty.
  • Details of the information that they considered in carrying out this analysis.
  • Details of engagement that they undertook with people whom they consider to have an interest in furthering the aims of the general equality duty

It is these parts of the PSED that the Government now wants to have a further think about -- given that it is in general ideologically opposed to anything that places an administrative burden on either public sector bodies or business.

The concern, of course, is that if you take away these obligations for a public sector body to publish evidence of how it is fulfilling the general duty, how is anyone to know whether they are?

The role of the regulator

In theory, of course, that's where we would turn to the Equality and Human Rights Commission (EHRC).

The Commission, which started work in October 2008 has several roles. One is that it has strong investigatory powers. Another is that it has had significant resources to pursue litigation if necessary. When used effectively, the combination of these powers can produce very significant outcomes, as illustrated by the famous Sharon Coleman case.

The EHRC's ability to both investigate compliance and pose a credible threat of legal action is a major underpinning to the Public Sector Equality Duty, because few other organisations have the capacity or capability to conduct the first and the resources to risk the second.

It is a sad fact that many legal protections, whilst theoretically present, are inaccessible to individuals and NGOs because of the resources involved, and the risk of punitive costs if they lose.

Indeed, the ability for ordinary people to use even the most basic provisions of the Equality Act is coming under threat from another quarter, as the Government seeks to put a further squeeze on legal aid.

And now, by a strange coincidence, the Home Secretary (whom you'll remember is also the minister for women and equalities) has announced a separate consultation as a prelude to 'reforming' the EHRC. More details on that here.

A pincer movement

Take a note of what is happening therefore.

  • First, the Government cuts away whole protections, which Theresa May describes as 'ludicrous' after a cursory consultation
  • Then it is proposed to strip away the part of the Specific Duties that allow anyone to readily check that public sector bodies are complying with the rest of the public duty
  • Simultaneously, another consultation prefaces moves to emasculate the only body with the powers and capacity to enforce the public sector duty
  • And changes in legal aid remove the chance for the rest of us to stand up to any organisation which discriminates against us

And that's not all

The Government is not content to stop there.

Ministers have already (separately) decided that they won't be implementing the combined discrimination provisions within Equality Act (section 14). This was one of the big advances promised by the new legislation, which would have opened the way for some of the most vulnerable groups to challenge the discrimination they face.

The Treasury's report "The Plan for Growth", published last week with the budget, not only confirms that but also says that the Government will:

"... consult to remove the unworkable requirement in the Equality Act for businesses to take reasonable steps to prevent persistent harassment of their staff by third parties as they have no direct control over it, which would save £0.3 million" (page 53)

Note that both of these proposals to chip away at legislative rights passed just a year ago have been buried deep in a Treasury report rather than being announced yet by Theresa May, Lynne Featherstone or their teams. I only know about this myself as I have contacts with very sharp eyes for detail, and preparedness to actually read fiscal plans.

As the sun sets...

We can probably expect more in this vein, as the Government clearly regards equality protections as a cost not worth paying.

The lesson, however, is that the whittling away of what we had won't always be in obvious chunks around which anyone can rally.

The cuts are stealthy. They're usually dressed up under the guise of 'consultation' when, in fact, the decision has already been made (as in the Treasury's plans). And they will be designed to have combined effects - such as stripping away publication requirements at the same time as crippling regulatory scrutiny.

And, in five years time, we will look back and realise how, truly for a brief point in time, we had never had it so good

Friday, April 01, 2011

Revisited: Transsexualism and the Law - The Amsterdam Colloquy of 1993

Yesterday I dug into my archives to dust off a report I wrote for the Press for Change web site in 1996 - as an illustration of the endangered early history of trans rights campaigning in Britain.

I created the prototype of the campaign's web site over the Christmas holidays in 1995, realising how desperately we needed to be able to communicate with a geographically dispersed and isolated trans community to get them on board.

We wanted a coordinated volunteer force, willing to advocate on their own behalf and to support our work. To achieve that would require a mix of education (telling them what we knew) -- and encouragement (convincing people that our cause, though a difficult long haul, was not a futile one).

But, long before the web site, I had been writing about and explaining events.

The 23rd Colloquy of the Council of Europe in Amsterdam, April 1993

Council of Europe Logo

One of the most significant events I have ever attended took place in April 1993. I was persuaded to go by my friend, Alice Purnell, the founder of the Gender Trust.

I say significant because it represented a lightbulb moment - an epiphany - for me.

The event was a major conference organised by the Council of Europe. It was a multii-disciplinary gathering, intended principally for lawyers and doctors to come together to talk about the difficult status of transsexual people.

The colloquy, "Transsexualism, Medicine and the Law",  lasted three days and changed me profoundly.

From the sessions I attended I learned that there was a medical understanding of people like myself that simply wasn't part of any discourse about our rights in Britain. There was also a liberal rights-based legal discourse too. It revealed stuff which meant that what we were seeking shouldn't be a call for tolerance, but a call for justice.

I remember finding the passion to stand up at the floor mic and argue at one point, in French, against one of the few intolerant contributors. If you have any idea how weak my spoken french is, you'll understand what kind of inspiration that required.

I also remember crying all the way through the closing session. It was that significant.

Flying home the next day I also realised it had planted a seed. If learning all this stuff changed my whole understanding, what would happen if everyone else could be helped to know the same? It took a while to assemble the means, but this is genuinely where my own arc as an activist began, as it was one of the events that brought Stephen Whittle and myself together and led him to invite me to join the fledgling Press for Change.

This account was written shortly after the colloquy and published in the Gender Trust's magazine.

Report on the 23rd Colloquy of the Council of Europe, April 1993

It was, in the summing up words of one contributor a "..most unusual and memorable occasion ..." a gathering where not only lawyers and medical experts but their client group too had come together for three days and achieved an uncommon level of agreement and understanding.

Margaret Killerby, the head of the Council of Europe's Civil and Commercial Law division was speaking in the closing ceremony of the Council's Colloquy on "Transsexualism, Medicine and Law" at the Free University of Amsterdam and her words reflected the feeling of everyone who had taken part. Speaker after speaker had echoed the same theme, paying particular note to the contribution made by the Transsexuals themselves, whose voices had frequently been raised to challenge inaccuracies, prejudice, and sloppy reasoning ... helping to ensure that the conclusions to be drawn were fair and representative of their experience.

The Colloquy was hosted by the University on behalf of the Council of Europe, it having the distinction of being the only institution in the world to have appointed a professor of transsexology. The event drew legal and medical experts not just from the 26 European member states but from across the globe. This meant that not only could psychiatrists, psychologists, endocrinologists and surgeons trade their research findings from across the world but international law makers were present too to learn that transsexuality is more and more regarded as a real phenomenon, worthy of serious research and compassionate treatment.

Although a lot of medical and psychiatric information was exchanged, undoubtedly the most fascinating aspect of the conference was the legal discussion, since a resolution of the many conflicts and anomalies which exist in dealing with this group of people are of interest not only to the transsexuals themselves, but to everyone.

First, before the hopes of Britain's Transsexuals are raised too soon, it has to be borne in mind that neither the Colloquy nor the Council of Europe will have a direct effect on the immediate situation in law for them either now or in the immediate future. This situation, it was quite quickly apparent, is nothing short of a catastrophic farce.  Since Sweden became the first to do so in 1972, only a further four European states have enacted specific legislation concerning the status of Transsexuals in society (Germany in 1980, Italy in 1982, The Netherlands in 1985 and finally Turkey in 1988).  Other states have been reputed to have statutes (eg Denmark, Finland, Luxemburg and Spain) but, according to Professor Michael Will from the Faculty of Law in the University of Geneva, it is not clear in which direction and to what extent.  Nor, according to Don Bradley a senior lecturer in law at the London School of Economics, was the justification or achievement of such legislation a cut and dried process.... involving, as it does, issues of ideology, complications with existing statutes and definitions, political culture and institutions.

Both speakers' contributions to the colloquy were too detailed and well presented to do proper justice to their arguments in a short article.  However, Don Bradley's paper represented perhaps the best summary and explanation to date as to why there should be such resistance to change and Michael Will's went on to ennumerate some of the many issues that arise when a state does consider enacting a law.

According to Bradley, the first impediment to legislation is the many and varied ideological arguments that are ranged against a liberal line of thought, not only from religious commentators but from other viewpoints, such as that espoused by the feminist writer Janice Raymond.  In her book, The Transsexual Empire, she sees male to female Transsexuals as something amounting to a fifth column. Many of the research findings coming out of the colloquy as a whole tend counter, head on, the central tenet of many viewpoints such as these... The idea, in its' various forms, that Transsexualism is an optional state of existence (whose only cause is whimsy) and the assumption that apparent birth sex and gender are inseparable is simply not representative of the facts.

The inconsistency of these commentator's arguments when applied across the whole spectrum of sex and gender variations and a range of cultures is only really apparent when the holes are exposed in a forum which has access to factual research from every perspective. This was why the meeting of minds in this colloquy was so valuable. If genital appearance at birth defines one as a "man" or a "woman" where is one to place the many hermaphrodites born with complete sets of both genitals, or those "boys" who later turn out to be "females" when a childhood penis turns out to be an enlarged clitoris? And if one opts, instead, for a rigid chromosonal definition, how do you then regard a normal looking "woman" who even after developing breasts and a feminine body shape at puberty turns out to be (on gynaecological examinination) an "XY" male with a complete insensitivity to the testosterone welling from "his" undescended testes?

Looking around the conference hall as these commonplace and long-since documented birth variations were explained by Amsterdam University's Professor Louis Gooren, it was apparent to what extent whole systems of thought were being shaken, as many delegates learned (perhaps for the first time) that there's more to life than X and Y, vagina and penis.  When the Professor then went on to discuss tentative (and albeit as yet unsubstantiated) findings that suggest brain differentiation may not be completed until the age of 4 years (and that this can, like everything else, go the "wrong" way) a new picture began to emerge in which physically "normal"  but dysphoric males and females could be viewed as parts of the same group of people as those who have more obvious physical ambiguities to their status.

However to return to Don Bradley's lecture.. He then went on to explain the problems which transsexuality poses for the mass of existing laws and provisions drafted and intended to serve for a society in which sex status is assumed to be indisputable and unchanging.  The obvious problem, and cause celebre, is of course the matter of the birth certificate ... although Transsexuals in Britain should at least be thankful that they are able to alter their name without incident.  In many countries, such as France, this isn't (or wasn't until legislation) at all possible ... leaving Transsexuals in those countries with a far more embarassing and enduring day-to-day problem than their British cousins.  But there are also many problems of marital and employment law, inheritance, and civil rights which aren't simply solved by appending or crossing out "wo" in front of "man" on a piece of paper. Not only is it necessary to wonder whether Transsexuals should be allowed to marry in their new status, but what should become of their former obligations (indeed marriages?) if they were married in their original role?  And, for that matter, what were the prerequisites to be fulfilled before a state should permit surgery or a name change or, ultimately, a change of legal status?

It was obvious that the lawyers were in their element given the mental challenge of imagining what sort of (probably very lucrative) complications could arise from admitting the basic idea of a change of sex status into their country's laws.  Indeed, left to their own devices, it was apparent that many (the French in particular) were quite happy to establish everything by resort to case law and were quite keen not to pin too much down by statute.

It is, of course, "case law" that defines the status (or non-status) of Transsexuals in every country where specific legislation has not yet been enacted. It represents a costly, unreliable and insecure means for anyone's rights to be defined, particularly as the next case to be heard can so easily reverse or restrict a previous ruling and rights can, quite literally, disappear overnight. This is a point which the Transsexuals in the audience were at regular pains to point out.

But law, as Bradley went on to explain, depends upon the flavour and cultural agenda of the state and its' institutions.  A political regime founded on liberalising principles is far more likely to accept change of this sort than one whose stance is more repressive or paternalistic, and the institutions which serve or patronise the state likewise influence the setting of the political agenda.

In Britain, according to Bradley, the resistance to the development of status and rights (typified by the birth certificate issue) seemed motivated more by a principle of conservatism and bureaucratic intransigence than by any specifically identified problems.  In both of the European Court cases heard in the last three years (those of Mark Rees and Caroline Cossey), the decision of the court (against their claims) had been based upon the fact that the UK birth registration process does not admit changes in any form ... thus in refusing to make a change the government was not seen to be denying either party a right they would otherwise have.

This subtlety was underlined more recently in the case brought by a French citizen "B" versus France.  In France, the registration system does allow for birth registration details to be altered in some circumstances so, in denying this to "B" the french authorities were denying her a right as a citizen and the European Court thus found in her favour.  However, as Bradley pointed out, the UK registration procedures have been modified to accomodate the interests of adopted and legitimated children, and this provides perhaps a precedent on which the Rees and Cossey judgements could be challenged.

Even notwithstanding the possibility that a third British Transsexual could return to the European Court of Human Rights with a challenge based on this argument, it is apparent in any case that the balance of favour in international decision making is moving steadily in the direction of the Transsexual. Indeed, the public dissent of one of the court's judges in the Caroline Cossey case (which was a narrow verdict in any case) points to this.  It was therefore very relevant that Don Bradley's presentation should be followed, on days two and three, by the contributions of Michael Will and others, examining the issues to be resolved within and between countries.

Once a state has accepted the basic premise that some sort of legislation is required in order to deal with real-life gender variations, the first issue becomes that of defining the terms, the group of people affected, and where the limits lie.

One speaker raised the dangerous notion of defining some sort of third "intersex" class in law, although this was mercifully discarded by the rest. After all, the very point is to help people to become more integrated and acceptable to themselves and others, not label them for everyone to see.  In fact, Professor Gooren had already remarked that the effect on Dutch Transsexuals' self esteem, confidence and perception by the public had been very marked since the Netherlands had legislated to regard them as members of their adopted sex. He had stressed that this acceptance by society was, from the point of view of rehabilitation, the last and perhaps the most significant step for an individual.

Professor Gooren's point, in many ways highlighted the lack of understanding in many peoples' minds about the direction that Transsexuals are coming from.  Seen as a matter of personal identity above all else, it would seem to be obvious to any compassionate observer that public recognition of that identity (and elimination of conflicts in that area) were, if anything, more important to the Transsexual than surgery.

However, the conference demonstrated time and time again that many people were still stuck down in the foothills of understanding.  Indeed, one delegate from the floor even had to berate the psychiatric profession for its' own stereotyped thinking which continues to place too much emphasis on cultural dress preferences and which confuses sexual preferences as pointers to gender identity.  It had become, she said, a virtual conspiracy in which clients had learned to say what the professionals expected to hear ... and the professionals, in turn, took this at face value to confirm their way of thinking.  The work of the Gender Trust, in researching and collecting the candid feelings and thoughts of Transsexuals bore out a long suspected belief that the development of understanding (and hence more appropriate help) was being held back by the failure of researchers to adequately distinguish between what are conventions and what are core prerequisites for a masculine or feminine identity.  The trust's own research had shown, for instance, that over 60% of Transsexuals retain their original sex preferences after their role change. "If the majority of male to female Transsexuals ended up as lesbians", she argued, "where did this leave the 'professionals' who persisted in seeing such people as repressed gays who wanted nothing more than socially acceptable penetrative sex with a big butch he-man?"

This call for a clarification of thought was of as much relevance to the lawyers as to the care workers and their clients to whom it was directed.  The state had first, for instance, to decide what constituted a valid change of role for the purposes of altering identity documents.  The obvious pointer was the construction of external genitalia and the induction of appropriate secondary sexual characteristics.  However this, as Michael Will pointed out, is not an appropriate measure in the case of F to M Transsexuals where the limits of current medical achievement made it unreasonable to demand phalloplasty as a prerequisite.  In other cases too, there could be instances where surgery (or indeed hormone treatment) could be dangerous for the individual and it was important not to discriminate against such people with an over-simplistic definition of gender reassignment.  He referred, for instance, to a case in German case law where an applicant suffered from liver trouble following a car accident and, although having undergone a mastectomy, feared the risks of hormonal treatment and the removal of their uterus and ovaries.

A line obviously has to be drawn however, as no-one wanted to raise the problems of new men becoming pregnant or new women fathering further children.  The Swedish, German and Dutch laws therefore embodied the requirement that a person should be unable to procreate in a completely irreversible manner ... actual removal of the testes or uterus/ovaries being deemed necessary to prevent surgical reversal or the possibility (for instance) of an ectopic pregnancy.  In the case of the German man referred to above, therefore, the courts had been sympathetic in permitting him to change his name but, since he continued to menstruate, a change of sex status was refused.

There are apparently few countries which outlaw or seek to regulate re-assignment surgery itself, probably since medical ethics provide adequate safeguards in themselves.  According to Michael Will, there had been cases of a doctor in Argentina being convicted in 1966 after carrying out an operation, and another more recently in Brazil (1978). In France there had been a case involving a young surgeon who was jailed for six months. However there were other more serious factors in this case.  The doctor had operated after only one meeting and without any other professional opinion in 1980 and the surgery had been very poor.  Finally, after eight years of attempts to seek remedial surgery elsewhere, the patient had shot herself.

However, although countries have not sought to impose conditions such as the "real life test" as a prerequisite for surgery, some have embodied it into their conditions for a legal change of status.  In Germany, for instance, the original wording of the act, which called for a "considerable period of time" living permanently in the new role, was eventually refined to "at least three years".  Again though, as Mr Will pointed out, legislation this precise creates problems when surgery has been carried in an urgent attempt to mitigate a patient's self mutilation.  Should that person still then have to wait out a period of three years?

It is obviously a problem for lawyers framing any new legislation to cover as many "what if?" scenarios as possible. This is in everyone's interest as it reduces the number of occasions when an individual will need to take expensive and time-consuming recourse to the courts for clarification. Given the time and thought which it takes for someone coming new to the subject to properly understand the issues raised by Transsexuals, and to correct false assumptions, it's also probably safer not to leave too much of the framework in the hands of judges, who may be pressed for time and who may have a lifetime's ideas and prejudices to up-end in order for justice to be achieved.

However, the alternative is not necessarily to adopt the excuse that all of these matters need to be fully resolved before you have any legislation, a point of view evidently much in favour with the French delegates to the conference.  The fair and reasonable course probably lies somewhere in-between, as always...

The experience of the countries where legislation has been enacted has not been to see a flood of anomalous or grotesque cases, in or out of the courts. Perhaps countries that fear this are still unconsciously seeing Transsexuals as publicity-seeking anarchists, intent on making a fool of the state, rather than quiet and mostly very ordinary people who want their change of status to create as little personal and public embarassment as possible.  All laws come to the statute book with flaws and omissions which the architects didn't forsee, and any country now contemplating legislation at least has the experience of five countries over the course of 13 years to draw on. As one contributor pointed out, those countries are the ones which now have reliable statistics and a clearer conception of gender dysphoria; those states haven't lost anything, public order and moral welfare have been maintained and (if anything) the Transsexuals in those countries have been better placed to live in society, pay taxes and contribute to social security than before. It was therefore suggested that the states which were sitting on the fence should put Transsexual legislation to the "real life test" as the Transsexuals themselves are obliged to do with their lives.

If making domestic legislation is a problem, however, it seems that it could be trivial compared to the problems of getting other countries to recognise what you've done and to iron out the discrepancies caused by differences in application.

It is usual for one state to recognise the identity documents and marital status conferred by another.  For instance, if an Arab with six wives comes to reside in England we do our best to recognise and respect the conventions of his culture. We don't, for instance, treat the wives as unmarried for social security purposes just because our own system prescribes monogamy.

Yet this sort of problem has already begun to occur for European Transsexuals, whose identity stands to be challenged and redefined each time they cross a border.  Indeed now that most European Community frontiers can be crossed at 65mph in a car without stopping it is becoming truly bizarre.  Imagine your marriage being anulled for you somewhere on the M4 between London and Swansea when going West for a weekend in Wales, and the full absurdity becomes apparent.

We already have the case of Dutch residents of UK birth whose documents (after being altered legally in the Netherlands) will not be ratified by British authorities and, as more countries act, the worse and more complex it will become. (Indeed the Transsexuality issue is, according to one observer, a very real potential flashpoint between the states in the E.C.

The complexities were highlighted in a report presented just before the Colloquy's close on the third day by Dorotheé Van Iterson, a member of the International Commission of Civil Status (ICCS) at the Hague. In her opening she referred to the earlier presentation by her ICCS colleague, Henri Delvaux, who (in his paper comparing the legal approach within different countries) had highlighted the difference between cases that involve a non-retrospective change of birth certificate status and those where an amendment has taken place to correct an earlier error.

Even in the UK it is possible to alter a birth registration on the latter grounds. An early example was the case of Georgina Somerset, a hermaphrodite registered as a male in 1923 but who successfully had her birth certificate altered at the age of 34 when it was established that her development was essentially female. The fact that hers was a correction rather than an amendment to the birth certificate made the change possible and enabled her to go on and marry as a woman in 1962 in a way that would probably be recognised worldwide without much fuss.

Although she did not refer to this case herself, Dorothe√© Van Iterson's paper highlighted the fact that the willingness of one country to ratify another's conventions on status changes depends on the nature of the change and the nationality of the applicant.  She pointed to reports that Sweden, for instance, which carries out alteration of documents for its' own citizens (and states a willingness to recognise the new status of foreigners when their status has been changed in their own country), apparently draws the line at accepting a Dutch ruling concerning one of their own nationals.  Germany, likewise, has stated that it would not recognise a foreign decision concerning an individual covered by German law.

A worse tangle concerns the willingness of states to recognise a marriage celebrated abroad where one of the parties is a Transsexual ... where the outcome depends on that state's recognition of the Transsexual his/herself and the public's attitude to Transsexual marriage. The treatment of an individual can therefore depend on whether their country of origin has completely obliterated official records of the Transsexual's former status.  Luxembourg, for instance, has observed that it would be obliged to allow the marriage of a couple if a Transsexual partner had never been married before and they came from Holland, since there would be no indication of the person's former status.  If, however, the person had been married in the earlier role (and there was therefore an official record of their former status) or the person came from a country whose official reclassification indicated both the old and new status, then public opinion would be against the union. In other words, there was a potential inequality stemming from the manner in which the person's change of status was recorded. (Sadly, nobody ever discusses the feelings of the other party in the matter of transsexual relationships, for they are deprived of rights too for no greater sin than loving another human being)

It is perhaps as well that Dorotheé Van Iterson's report was the last of seventeen presented in the Colloquy's three day agenda because by this point many delegates, their minds bombarded by the anomalies now in existence, were finding it hard to go on.

Some wondered whether all the intellectual effort was worthwhile. Wasn't it a lot of effort for such a statistically small number of people on the margin of normal society? When one speaker from the floor pointed out that, worldwide, that "small number" (in their various forms) added up to between fifty and sixty million people (or the entire population of France as she put it), some took the point.

Transsexuals are not in a position of their own making, but in a trap unintentionally laid for them by society's long held view that gonadal sex at birth represented the end of line for a person's gender development. Until recent research has begun to show otherwise it was reasonable to assume that, from the point of birth, there were no exceptions to nature's rules concerning personality development, other than those made by choice. Laws and conventions have been laid on the basis of this apparently self-evident observation and, although few examples of positive repression exist, Transsexuals have long experienced the de-facto repression resulting from the conflicts and ambiguities which their existence brings about.

Scientific research is, as always, ahead of the law and society in this area and many Transsexuals took away from the Colloquy the new knowledge that, if nothing else, their status is changing as more is understood about the way in which human beings develop and differentiate into male and female, man and woman.

The most significant medical observation in the three days was that it seems the brain goes on to develop on sex-dependent lines for as much as four years after birth.  So, just as it has been known for many years that the development of the internal and external genitals can go irreversibly in the "wrong" direction before birth (leading to hermaphroditism and all its' variations), the development of the brain can likewise, it seems, go off on a divergent course too, for one in 11,500 "males" and one in 30,000 "females".

Conditions such as Androgen Insensitivity and Testicular Feminisation (both of which result in XY males being classified and brought up as potentially happy, well adjusted and unarguably female women) and the XX-child equivalents are all statistically quite commonplace (each syndrome appearing in 1/1000 births). "Why then", asked Professor Louis Gooren, in his closing speech, "could the sensitive and compassionate treatment afforded these cases not be extended quite simply to those whose problems have a similar basis but whose late and less-obvious onset places them in the legal position they find themselves through no fault of their own?"

There was an air of agreement and compassion in the closing speeches of the Colloquy that none could have missed and which seemed to indicate that Transsexuals could perhaps take some comfort from the wartime words of Sir Winston Churchill, "... this is not the end, this is not even the beginning of the end, but it is the end of the beginning".

The professionals paid tribute to the patience and good humour of the Transsexuals who had attended. One presenter remarked that, through organisations such as the UK's Gender Trust, they were beginning to present themselves as a coherent and self-aware group of people fully able to participate in decision making regarding their status. Indeed Dr F.W. Hondius, the deputy Secretary General of the International Commission on Civil Status said that he would be recommending their active involvement when the ICCS came together soon to debate the issue.

The Transsexuals, in turn, were pleased too; not just for things said in their favour, but for the opportunity to meet and socialise with the people who might be able to achieve the thing they need above all, which is for their case to be taken seriously and treated compassionately.  Admittedly it's hard if you've grown up quite happy with your own genital-defined role to understand how someone might feel otherwise. Many Transsexuals describe the feeling of being "trapped" in the wrong body and go on to admit that they're as perplexed by that as an outsider.  When the conviction is held so strongly and consistently that even loss of family ties, job security, and civil status pale into insignificance and a "compromise" body alteration (with all its' problems) is preferable to continuing with the "wrong" life altogether, then it is time to ask whether they are really asking that much of society to be recognised in law for what they feel themselves to be in mind and soul.

Christine Burns, April 1993