Sunday, June 05, 2011

One of our finest hours


In the last few months I've dusted off some of my first person accounts of a selection of trans campaigning milestones.

There was the reading of a Private Members Bill in Parliament in February 1996, delivering a petition to 10 Downing Street in October 1997 and, long before those events, a significant conference in Amsterdam in April 1993.

To continue that series of retrospectives I now want to move to an event that took place in early 1998, and which put us on the map as a campaign to be reckoned with by Government.

More to the point, I think it was one of the whole British trans community's finest hours

Remembering the trans community's successes

To put the events that I'm writing about into context, it's important to recall that although people mostly now remember the Gender Recognition Act in 2004, the campaign for transsexual peoples' rights in the UK had achieved a number of milestones long before reaching that point.

This was mostly down to some truly heroic individuals prepared to use their personal experiences of discrimination to win big changes through the courts.

  • In the Spring of 1996, not long after Alex Carlile's Private Members' Bill had been talked out in Parliament, a trans woman known only as "P" won a significant employment discrimination judgement in the European Court of Justice. P's success (besides the milestone of securing her anonymity in the proceedings) confirmed that the European Community's Equal Treatment Directive applied to people who were planning to change, were in the process of changing, or had changed, their gender. This was significant not only to "P", but also meant that the UK's Sex Discrimination Act had to be interpreted in the same light for everyone in Europe. Indeed, for the UK, that interpretation could be applied historically, all the way back to the date that Britain had joined (what was then) the European Economic Community in 1972. More on this in a moment.
  • In the Summer of 1998 three Lancashire trans women (known only as A, D and G) won a case in the High Court against (what was then) North West Lancashire Health Authority, contesting administrative decisions not to fund referrals for their treatment under the NHS. The Health Authority insisted on appealing the decision and were defeated again the following year at the Court of Appeal, establishing a firm legal precedent in the process. The case established that it was unlawful for NHS commissioners to operate anything amounting to a blanket ban on funding for gender reassignment treatment. Ironically, it is estimated that the full cost of those actions, which fell on the Health Authority, would have easily funded around 50 full gender reassignment treatments.
  • Then, of course, on 11th July 2002, two transsexual women won the very aptly named "Goodwin & I vs UK" case at the European Court of Human Rights. They were the fourth in a succession of British applicants to the human rights court in Strasbourg, claiming abuses of the right to private and family life, and to marriage. Their success laid the foundations for the Gender Recognition Act.

For those with a more technical interest, the Equality and Human Rights Commission has a very useful list of transgender case decisions on their website.

No plain sailing

Success didn't come without some temporary setbacks on the way.

In terms of employment rights, the Police proved to be a particularly hard nut to crack. A transsexual woman "M" lost an Industrial tribunal against West Midlands Police in 1996, in spite of the European Court of Justice ruling. Then a similar case against West Yorkshire Police took over six years to reach a successful conclusion, and went through the entire UK legal system before being resolved successfully at the House of Lords in 2004.

The transsexual woman behind "A vs West Yorkshire Police" had incredible stamina to pursue a case that far. One of my colleagues at the time deserves particular praise for the moral support she offered to help her through.

However, "A" 's case superbly illustrates the trench war nature of changing a system that doesn't want to change. As in the NHS case I mentioned above, the costs to the public purse in losing the case were horrendous. It has been estimated that the Police could have bought two new helicopters with the money spent trying to prevent one young transsexual woman from training to be a police officer. Ironically, the case also emphasised what an excellent officer she was capable of being.

Strength in numbers

Whilst these cases were about heroic individuals stepping up to the plate and being supported by a community of equally remarkable lawyers, the Press for Change campaign was based on the vision that everyone should have the opportunity to contribute as much as they felt comfortable. It was our job to equip them.

We had first put this philosophy to the test in the autumn of 1995, as we laid the ground for Parliament to hear Alex Carlile's personal attempt at a gender recognition bill. Over the course of that autumn (and before all that many trans people were accessible online via email) we used the old fashioned medium of a printed newsletter to encourage individuals to visit and write to their own MPs, and for them to ask for support for the measure.

One thing we resolved never to do was to produce standard letters. Politicians can spot those a mile away. They get them all the time, and know how to deal with them.

Instead, we explained the arguments to people, and then we asked them to put the case into their own words ... to tell it personally.

The result was significant, although it didn't affect the Parliamentary outcome at the time. The politicians supporting us told us it was one of the most impressive lobbies they had seen in recent time. MPs everywhere were telling colleagues how that had met a transsexual woman or man in their constituency surgeries ... and then discovering that their associates had had similar experiences.

It was obvious all these visits had been coordinated in some way, but less obvious how. A campaign that can mobilise hundreds of people all over the country is automatically assumed to be larger than it really is. The fact it was coordinated by a handful of people in their bedrooms was far from obvious.

Forcing open Westminster's doors

In May 1997 the Labour Government swept to power by a landslide majority. It was time to collect on promises made in opposition. And there were new ways of working too ... this Government was keen on consultation, even though the civil servants had no idea yet how to implement it.

Sure enough, in the Autumn of that year (when Press for Change had received a surprise invitation to buy a stand at the Labour Party Conference exhibition) we received a promise from Ministers that they would look at how to implement the European Court of Justice (ECJ) decision in P vs S and Cornwall County Council.

A consultation was organised for February 1998, but it was a mess.

Although the ECJ's decision had been straightforward and unequivocal, the questions posed by the Department of Education and Employment in its' discussion of the legislative options were terrifyingly prescriptive. Should there be restrictions on transsexual people having a right to work with children and vulnerable adults, for instance?

Very little time was allowed for responses either. If the success of P's ECJ win was not to turn into a car crash we were all going to have to move very fast.

Mercifully we were ready for this challenge. We knew already how to ask for people to do specific things. And we now had the means to distribute information very quickly.  (Mind you, in 1998 we were still a hybrid of old (postal) and new (email/web) communications.)

The story is told in the article below, which I wrote to thank people once the panic was over. I've always believed that if you ask people to do things then you should also tell them what they've achieved, and then ask for more.

And our professional relations with civil servants began in the fallout from this event, in a climate set by the respect that PFC and the entire community had earned by bringing them to the table.

Nothing was ever the same again. We'd established that though we were tiny, we were capable of mobilising hundreds of articulate people.

Looking back on how I documented it at the time, I truly believe it was one of the whole community's finest hours...


Consultation Deluge brings Employment Minister to the discussion table
(Written for GEMS News, 29th April 1998)

Hansard, 30th March 1998: Written answer to a question tabled by Paul Keetch MP, Hereford (Lib Dem).

Mr. Keetch: To ask the Secretary of State for Education and Employment how many responses were received to the Department for Education and Employment consultation paper, Legislation Regarding Discrimination on Grounds of Transsexualism in Employment; how many responses were (a) in favour and (b) opposed to the proposals; and if he will make a statement. [36865]

Mr. Alan Howarth: Nearly three hundred responses have been received by the Department. The responses are from a range of individuals and groups, and contain a large number of views, not all of which concern matters within the responsibility of the Department. Analysis of the responses is now underway, and I shall make a further statement in the light of that analysis.

Anyone with the remotest of connections with the UK’s transsexual community can’t have failed to be aware of the number one topic for concern and debate for most of February and March this year.

Readers of a hurriedly published Gems News 31 will have read about it there. Members of the FtM Network, Change and other support groups will have received copies through their newsletters at the same time. Press for Change volunteers spent a night stuffing and licking two thousand envelopes to notify our own supporter list. And the world at large downloaded over four hundred and fifty copies of it from the Press for Change website in the busiest six week campaign we’ve ever organised.

The Department for Education and Employment’s “consultation” paper, “Legislation Regarding Discrimination On Grounds Of Transsexualism In Employment” could not have been more ironically titled of course.

It slid through the Press for Change letterbox on the morning of Monday 2nd February, and produced the same astonished reaction from everyone who read it.

Instead of suggesting useful ways in which people could sensibly avoid discriminating against trans people in employment, and solve problems harmoniously, the government ministry responsible for outlawing discrimination at work appeared to have produced a manual which practically encouraged it. They even proposed changes in the law to make it easier !

It’s not surprising that many trans people were deeply upset by what they read, and by how they saw themselves described between the lines.

When you read people seriously suggesting that perhaps it’s not appropriate for you to work with children and getting in a tizzy over which toilets you should be allowed to use, there’s no mistaking the message.

Several people who wrote to us at Press for Change expressed feelings of despair and described episodes of depression, brought on by the challenge to their self esteem. There was a very real fear that the party which many hoped would liberate them was going to legislate them into some form of legally prescribed ghetto.

Understandably, the lack of information following the end of the consultation period will have frightened many people too. Many of those who subscribe to PFC’s online campaigners forum, where people are at least in touch with what’s going on day by day, were frightened enough. I can only try and imagine what it’s been like if you’ve not had that lifeline.

In a moment, I’ll explain what’s happened since the DfEE’s consultation deadline passed. It’s actually good news, and I cannot stress enough that important lessons have been learned on the government side as a result of the exceptional response you helped us to organise.

Doors have been opened. Press for Change, through the Parliamentary Forum we help to organise, has been invited by the equal opportunities minister himself, Alan Howarth MP, to draft alternative, constructive and fair proposals to really tackle workplace issues involving trans people. We are working on that even as I write, and contributing in parallel to other relevant consultation processes too.

Before I explain what happened though, it’s worth reflecting on this latest example of how powerful we become by communicating well, organising ourselves to act as one, and by developing the self regard to stand up and complain when the behaviour of others threatens our right to be treated with as much respect and regard as anyone else.

The UK trans community’s response to this latest threat was undoubtedly the biggest and most tangible that we’ve yet organised. And we had barely six weeks in which to do it too.

We only received the document to read ourselves on February 2nd. Groups like the Gender Trust received their copies at the same time as well. The ministry evidently wanted to keep this very low key though .. ironically (I suspect) because they were afraid of press reaction interfering with what I think they honestly thought to be legislation we’d welcome !

Our first response was to contact our associates in all the main support organisations, like the Gender Trust, to organise a joint operation to make sure that as many people as possible could see the document for themselves and have a chance to reply before the March 13th deadline.

Within 24 hours, the Press for Change web site had copies of the DfEE’s paper, and our commentary alongside it. Within just 48 hours, we’d added the Gender Trust’s own response, and page upon page of supporting information too.

We circulated the paper to our online email distribution list too, reaching almost 200 people in one go .. and called for volunteers to help us do a mass mailing to our own postal contact list of about 1200 supporters and activists, and the FtM Network’s members too.

As the news we circulated worked its way around the internet, accesses to the Press for Change web site doubled and then doubled again.

We printed 2000 copies of the ministry’s document, along with instructions on what to do about it, and meanwhile liased to ensure that everyone else contacted their own distribution lists without delay. Delays in the ministry sending the consultation out, meant that we had less than six weeks for people to respond.

By the end of the first week, less than seven days after we’d begun, the operation was well underway, and when we gathered early the following week to fill envelopes, the first responses from the online community were already being copied to us. Many activists were reporting on the efforts they’d been making to encourage other people to respond too.

And we weren’t just looking for trans people to voice their opinion.

Employers and Trade Unionists expressed concerns at the damage the proposed legislation would do, and how it would hinder rather than help.

One teacher’s union was furious that they’d only received a copy of the paper through a trans teacher, concerned for their job. The ineptitude of the ministry responsible for education seemed to know no bounds!

Partners, parents, co-workers and friends added their contributions as well. We asked people to copy their responses to us, by post or electronically, so that we had an idea of the scale and flavour of what was being sent.

As we entered the last week for posting, the number of copies we received crept up to around 150, encouraging us to cautiously speculate that perhaps 200 responses had been sent overall.

In our wildest flights of wishful thinking none of us would have dreamed that the eventual total would come closer to 300 though. Thank you everyone who made a contribution to the pile.

We tried not to tell people what to write in their responses, or how to frame them .. although online activists had the benefit of being able to discuss this a lot.

What we hoped people would stress, in their own words, was that special legislation was unnecessary, and could only diminish the protection conveyed already by the European Court of Justice ruling, P vs S and Cornwall County Council. The examples the ministry themselves had provided underlined this, in fact.

Indeed, the only case in which a trans person had failed to press their case in court using “P” merely demonstrated that if any legislation is needed at all, then it is should be to facilitate legal recognition of the actuality of a trans person’s socially recognised gender. (In the case of M v West Midlands Police the plaintiff, a trans woman, was not employable as a police officer because her legal gender created barriers to her ability to perform intimate searches on suspects).

Some people wrote letters addressing the generality of the proposals, and citing a few specific areas of concern. Others submitted a full scale critique of each proposal, often brilliantly exposing the false assumptions the document contained, and showing the absurdities it would lead to. Many examples were provided to show how unworkable the proposed legislation would be to either define or apply.

One aspect struck us more than any other though. Almost every submission we read was immaculately produced and argued its’ case intelligently and consistently.

The impression, overall, was of a well educated and informed community of people expressing genuine dismay at proposals which would turn them into third class citizens. When non trans people wrote, the message was universally supportive too. Everyone seemed to understand the issues very well, in fact .. except the civil servants we pay to know better !

The one positive thing about the UK Government’s first attempt to draft trans-related legislation, as many journalists and observers agreed with us over the weeks that followed, was that you didn’t have to understand or even sympathise with trans issues to be able to see straight away how crudely discriminatory the proposals would be.

All you had to do was substitute some other adjective in place of “transsexual”; then the truly exceptional nature of the Government’s proposals was obvious.

It was as though someone had switched on a very bright light, because suddenly the ignorance of the government’s civil servants could be seen as clear as day. Indeed, from now on, if you get another of those ministerial replies, which civil servants write and politicians have been trustingly signing for a quarter of a century, remember to look at it in a wholly new light.

When they prattle that, “transsexuality raises complex issues”, you now know what that means. It means, “We haven’t really got a clue what we’re talking about, so we’ll pretend there’s something we know and you don’t understand”.

Make sure your MP knows this. Explain the crass, elementary errors of fact and the lack of research in a paper produced by those entrusted to govern. And then demand better.

Returning to the plot though ...

Once we’d got the paper successfully circulated, we didn’t sit still. Long before the consultation deadline arrived, Press for Change was liasing through several MP’s, led by Dr Lynne Jones, to bring about a meeting with the minister responsible, whom we quickly identified to be Alan Howarth, a Labour minister with the interesting qualification of having worked, till very recently, as a Conservative minister, in the same ministry!

Indeed, we speculated a great deal on whether the entire paper wasn’t something that had been drafted by the previous administration.

The sheer torrent of consistent criticism from all quarters certainly took the ministry by surprise. Less than ten days after the closing date for responses a meeting took place at Westminster, involving the minister himself, Dr Lynne Jones MP, Dr Russell Reid, one of PFC’s Parliamentary Forum representatives and the civil servants who drafted the consultation paper. The meeting was also attended by Frank Cook MP and one of his constituents.

The meeting was very constructive. The civil servants had learned a lot from your educative responses, although the “civil service mind” takes a lot of persuading that the Sex Discrimination Act (which courts can now interpret in the light of P vs S) doesn’t need to be “helped” by adding extra regulations.

Faced with the obligation to fulfil the ruling of the European Court, the government’s advisors still need to understand more about the diversity of trans people’s lives before we will have finally convinced them that legislation is not just bad, but unworkable too. “We know best”, is an article of faith for public servants. Our job, paradoxically, is to make sure that they really do.

Nobody should be in any doubt, however, that the willingness is there to get it right, which is why you really can rest assured that the government is not about to suddenly turn round and enact legislation which would be widely condemned as agressively repressive.

The thing to remember, too, is that the present proposals, if implemented would directly contravene European Law. As published they would, for instance, take away the very protection that “P” herself earned in her landmark case.

Recognising the need to come at the entire issue from another angle the minister therefore very wisely took up our suggestion that the Parliamentary Forum should draft an alternative paper, drawing upon the knowledge and expertise of Press for Change, and the lawyers and medical specialists which the forum has assembled. Press for Change is coordinating this exercise with Dr Lynne Jones.

Our objective is to highlight the real issues which trans people face in employment, and to amplify the argument that if there are any gaps at all in the Sex Discrimination Act (SDA) for trans people, then they arise because of the anomalous legal and social status of trans people in the UK.

We were very encouraged to see that the minister understood this point, and the greatest benefit of this entire episode has been to really highlight that fact.

It is a lesson which is now being digested in other ministries as a result, and the minister undertook to have discussions with his cabinet colleagues about the problems their policies create.

One thing we must stress, however, is that negotiation like this takes time and patience.

Personal relationships of trust are being formed. People are having to learn things they never appreciated about the complexity of trans existence, and the real problems people face. Government will take a long time, too, to come up with everything we’re seeking.

Some of it will at first seem ambitious, but that isn’t a reason to back off and ask for less than a better educated mind can appreciate to be reasonable.

You only have to think about the immense shift in public and media perceptions and sympathy for trans people in the last two years to see that if something is right, then you just have to keep putting the message across patiently till others have acquired the sophistication to see what you mean.

And the world is certainly changing whilst the civil servants and politicians run to catch up.

Before the end of June, for instance, the Coronation Street character Hayley Patterson will have returned to our screens as a permanent cast member (whose development we are now actively helping to shape behind the scenes).

Hayley’s return, and “promotion” comes as a result of audience survey work which showed, to many people’s surprise, that she is a very popular character, whom viewers want to get to know some more. Try reconciling that with a government proposal which would, for instance, stop her working as a beautician in the Street’s hair salon.

We do need you to help keep up the pressure in Parliament though.

The effect of several dozen people using their MP’s to object to the DfEE paper has elevated the profile of the campaign immeasurably among MPs, and means that legislators are not just talking about the issues, but understanding that we have a valid and serious case.

By acting en masse you have made people aware that we are an organised body of people, with a well organised and effective campaign behind them.

The fact that almost three hundred people (out of an estimated 5,000 UK transsexual people) answered our call so effectively in a matter of days means that no-one is in any doubt of the Press for Change mandate. When we negotiate with government ministers that is important. Respect for Press for Change translates into respect for your case.

We’d like you to continue to lobby your Member of Parliament, although now it is becoming more important for us to co-ordinate the opportunities created by each contact.

If you plan to visit your MP soon for instance, or if you’ve already been once and feel able to build a constructive relationship further, we’d like you to get in touch with us beforehand.

The reason for doing this is to see if there’s a parliamentary question (PQ) you could get them to table on your behalf. We have a carefully planned stock of PQ’s we’d like answered (like the one which began this report) and getting your MP to commit to this is a very useful way of measuring the real nature of their support. The other advantage of contacting us first is that we can also tell you what other contacts people in your area have made.

As I said before, it is a very long road we are treading, which demands patience and all the professionalism we can muster to reach our target.

Along the way there will be challenges and scares, like the one we’ve just met. At times like that we’ll doubtless turn to the community again, knowing that together we can transform a challenge into an opportunity.

And with each challenge we grow bigger, stronger. We become more self-aware as a community, and more respected and better understood by the people we deal with.

This is a campaign which used to be characterised by a succession of firsts. We’ve won our first case and gone on to win many more. We’ve had our first parliamentary debate. We’ve had our first press conference in the palace of Westminster. We’ve even got our first regular soap character.

Now we look forward to the last’s .. such as the last time we need to repeat very basic education for a civil servant.

We’re not there yet. But with each opportunity to raise our case we move one step closer. And with your help we’ll get there even faster.

1 comment:

Alexander said...

The case study of the three Lancashire people sounds exactly like what happened to my friend and I in Cardiff in 2010. We're both transmen who wanted repeat prescriptions of testosterone and were denied it (even Sustanon, which costs £10 for a month's supply) by the Cardiff Health Authority. Being relatively poor, neither of us could afford legal action. I have some feeling the health authority would've, hypothetically speaking, fought us at court though - incurring astronomically high costs compared to the £10/month it would cost for hormones.