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Judges, you need to catch up with parliament in your treatment of transgender people

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Stop reminding litigants what used to be between their legs

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Since the enactment of the Gender Recognition Act 2004, the rights of transgender individuals have seldom been discussed in the chambers of parliament.

Yet some strange discourses have been bandied around the courtrooms, including in criminal prosecutions for sexual offences, and judicial reviews of decisions made by the General Registrar. Whenever a transgender person steps foot in a courtroom their identity is scrutinised and held up as the pivotal aspect of the case.

Judges usually begin by ensuring that they address gender by stating the correct pronouns to use throughout the judgment, I can only assume to show from the outset that they are completely cool with people being trans. Then the body of the judgment begins and it all goes downhill from there.

Just last year, in R (on the application of JK) v Registrar General for England and Wales, a male to female parent of two applied to have her first son’s birth certificate altered to read “parent” or “father/parent” instead of “father” (a provision allowed in instances of adoption and surrogacy). The decision by the Registrar General to reject this alteration was upheld by the judge, as he concluded that amending a child’s birth certificate would be more damaging to the child’s identity than the damage that would be caused to her identity by having her referred to as a father on official documentation.

The judge went as far to say that having “trans activist” in her social media profiles showed that the claimant would not really be affected by a disclosure of gender history as she was clearly open about it. You know, because your Twitter bio is entirely analogous to a legal birth certificate.

Quite lucky the 12 month-old baby could not voice their opinion on the matter. I wonder how this would be decided if the child was over ten at the time of their parent’s transition — when the child could say “nope, really could not care less”.

The judge’s excuse for not allowing this change to documentation appears to me a cop out. Would our administrative systems crash as the employees of the General Registrar crumble into scenes of chaos if they were forced to change the word “father” to “parent”? It would be unthinkable to expect this of such a system — it is not like they already record sperm donors in surrogacy cases as “parent”. Personally, I predict societal collapse, but that’s just me.

Even more disappointing is the judicial creation of “gender fraud”, a concept whereby a victim can claim that not knowing a person’s true gender identity means any consent is vitiated. Hitherto, five people have been convicted of varying sexual offences on the basis of gender fraud.

In R v Justine McNally and R v Gayle Newland (unreported), the defendants were both presenting themselves using male pronouns and names, but were biologically women. The convictions were based upon the invalidation of consent because later finding out that the genitals didn’t match the pronoun was just too perverse for the victims.

Judge Roger Dutton told defendant Gayle Newland that she had “serious issues surrounding her personality”.

Lord Justice Leveson told defendant Justine McNally that “she had deceived not only others but also herself”.

Just what the transgender community needs — reassurance that the judges presiding over our courts have their back.

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The most shocking of the cases is the conviction of Kyran Lee in 2014 for sexual assault by penetration on the basis of gender fraud. Kyran had lived as a man for 10 years, had officially changed his name, had been accepted into a Gender Identity Clinic, and had undergone surgery for gender reassignment. Despite this, Kyran pleaded guilty to sexual assault based on gender fraud, as the prosecution claimed his gender history was too harmful to the victim. He received a two year suspended sentence purely based on the fact he used to have fallopian tubes… ten years ago.

Most recently, Jennifer Staines was convicted of sexual assault charges at Bristol Crown Court in March 2016, as she presented herself as male over social media in order to begin relationships with the victims. Indeed this case is much more complex as one of the three victims was as young as twelve, which is a separate serious issue in itself. However, the language used by the presiding police officer included, “selfish desires” and “the manipulation was so extreme”. The BBC even used the term “fake man jailed” as their hyperlink headline through to the report. This latter statement gives off an awful implication that ‘man’ is the ideal, and any imitation or failure to be at that status is ‘fake’ and reprimandable.

I do not wish to give off the impression that I am light on sexual offences, however the reasoning given by the judges seems to be entirely illogical. The brilliant analogy used by Alex Sharpe to demonstrate the flaw in these cases is:

A white woman and a man of mixed race, who outwardly appears white, meet in a wine bar. Subsequently [to mutually satisfying sexual intercourse], the woman discovers the mixed-race background of the man and claims to feel violated…. he is charged with rape on the basis of failure to disclose his racial background.

Undeniably, comparing gender and race issues is potentially problematic. However Sharpe hits the nail on the head perfectly for me; why should a person have to disclose their gender history if it is not compliant with cisgender expectations? It is far too burdensome on transgender individuals and clearly places them at a legal disadvantage.

The use of language such as “issues surrounding her personality” and “deceiving herself” shows a serious lack of understanding on behalf of the judiciary as to what gender is and why it is important. A transgender defendant must not only prove or disprove their legal claim, but also prove that what used to exist between their legs plays no roll in present proceedings. These two areas of law show how a judge can misrepresent gender by denying legal recognition, and how gender can be misrepresented as deceitful.

These cases were all decided in the past three years. For some unbeknownst reason, the judiciary are quite a few steps behind society in its treatment of gender issues.
They ought to know that a parent should be entitled to legal recognition on official documents, indiscriminate of their gender history. They ought to know that non-disclosure of gender history to a sexual partner does not cause irrevocable psychological harm to the other party. They ought to know more about how to conduct themselves around transgender individuals, and how to show respect to a community which faces significant legal oppression.

Elliott Lauder is a law student at the University of Bristol.

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27 Comments

Anonymous

Oh cry me a fucking river.

Liam

Brilliant article. Well done!

Adam

I’m going to offer a contrary opinion.

The quoted analogy in Gender Fraud cases does not stack up and I take the view it is patently obvious why gender should be objectively regarded as vital to consent.

1. It is fundamental to the “nature and purpose of the act”
2. The sex wouldn’t have happened ‘but for’ the fraud

It’s analogous with that case about the girl who had sex on the basis that her music teacher was “creating an air passage” inside her to help improve her musical abilities. Her belief of what was going on was so far opposed to what was actually going on that she cannot be said to have truly consented to what was actually going on.

No other lie strikes at the heart of the basis of sexual consent quite like gender identity. Those cases are correctly decided.

Though there are many who would disagree with me, I’m sure.

GenderAmender

I don’t see any of them here

Anonymous

Even the courts have taken the opinion that it doesn’t come under either of those in s76 of the sexual offences act. Nature or purpose has been limited to cases like the music teacher or where doctors say its a medical exam. These cases don’t come under this because the nature of the act is still consensual sex and the purpose is still sexual gratification it doesn’t change the nature of the act the idea is that people think that it vitiates conns under s74 (although i disagree)

Anonymous

“Just last year, in R (on the application of JK) v Registrar General for England and Wales, a male to female parent of two applied to have her first son’s birth certificate altered to read ‘parent’ …”

Call me old-fashioned, but the simple biological fact is that every human child has a mother and a father. I realise that some people are unable to accept this, but it is true.

Anonymous

If a man were to anonymously donate his sperm to a lesbian couple, his name would not appear on the birth certificate, nor would one of the mothers have to fill the ‘father’ slot on the form. The claimant’s issue was that their case could not be treated similarly, and I feel that this is an entirely valid claim, only denied due to the old fashioned ideas of the judiciary. The are being old fashioned, however, society is not, and in order to be effective I believe that the common law must move with the expectations of modern society.

Anonymous

This is an absolutely disgraceful article.

“The convictions were based upon the invalidation of consent because later finding out that the genitals didn’t match the pronoun was just too perverse for the victims.”

This is pure victim blaming. If consent is not informed consent then it is no consent at all. In the cases the deception by the perpetrators vitiated the victim’s consent. In many of the cases the perpetrator knew the victim would withdraw consent if they knew the truth hence Newland requiring the victim to wear a blindfold, binding her chest and taking other steps to ensure her deceit was not uncovered.

It is frankly disgusting to imply that these sexual assault victims were somehow prudish in feeling their consent had been invalidated. Correct decisions were reached by the judges in line with statute and precedent and it is not their fault that some people simply do not wish to take responsibility for their criminal actions and decisions.

A

But a woman who ostentatiously looks and feels like a man, yet harbours none of the biological entities of a man is not a man.

They may feel like they are, but anatomy dictates otherwise.

Ziggy

I feel like a Zebra.

This means I am a Zebra.

Just Anonymous

I don’t wish to be unduly harsh on a student. I commend Lauder for having the courage to write this article. I also subjectively found his writing style to be clear, authoritative and engaging.

However, the central piece of feedback I’d give (assuming he’s reading these comments) is that, outside the student debating chamber, arguments stand or fall on their supporting evidence, not rhetoric. Here the rhetoric is good, but the cited cases just don’t substantiate it.

Firstly, clicking on the McNally link leads us, not to an authoritative report, but some random internet page calling for justice for McNally. This is unhelpful in itself. But, far more importantly, that article itself strongly suggests that McNally herself was not trans, but rather an ‘ordinary’ woman pretending to be a man. Thus, this case is irrelevant.

No citation for the Gayle Newland case is even offered. Thus, this case doesn’t help us at all.

All we’re given for Kyran Lee is the Mirror. However, even that report does not support Lauder’s claims. Lee was not convicted for ‘having fallopian tubes ten years ago.’ Lee was convicted for ‘assault by penetration:’ namely, penetrating his victim with a sex toy. The point was that the victim believed she was being penetrated by his penis and would not have consented to the said sex toy. Accordingly, I suggest her consent was plainly invalid and the case thus correctly decided.

Jennifer Staines is also patently irrelevant as she was not transgender. ‘Fake man’ is a perfectly accurate description of her activity, and the suggestion it implies anything more sinister is rather scraping the barrel.

As for the JK birth certificate case, Lauder is simply wrong in his assertion that the judge claimed the claimant wouldn’t be affected by the status quo, since she had already revealed everything on social media. Rather, the Treasury Solicitor advanced this argument. The judge noted the argument. He then never mentioned it again and found against the claimant on different grounds. [See paragraphs 17 and 18].

Indeed, those grounds went far beyond the child issue reported by Lauder. The central ground was the legitimate public interest in having a coherent administrative system that accurately reflected the position at birth: [101], [104]. As the claimant herself admitted, she was, at the time of birth, the father, and her subsequent transition could not change that reality: [108].

Accordingly, I am unpersuaded that the judiciary are deficient in their treatment of transgender people.

Anonymous

This comment is spot on – leaves little else to be said..

Anonymous

I am a strong supporter of LGBT rights and have a couple of trans friends…but this comment hits the nail on the head (as do a couple of the others above!).

Anonymous

Great comment. Says everything I was going to and more, and in a much less annoyed tone, haha.

Anonymous

Safe space…shaming…patriarchy…cis gender…

Anonymous

Every word of this is garbage. Nothing wrong with the topic but you’ve completely pulled this out of your ass. There is no argument to be made. This does nothing to further trans rights or awareness. Shame.

Anonymous

This is a really engaging article and I think raises some important points. I do, however, believe there is a little more nuance around the concept of ‘gender fraud’ to be discussed, in particular in terms of victims. Whilst arguably there is transphobia present in a person choosing not to have sex with someone because of their transgender identity, that is ultimately the (in these cases) victim’s choice. While obviously we ought to recognise the harm of transphobia, at the same time this should not eclipse another’s right to making informed decisions about what they chose to do with their body, and who they choose to have sexual encounters with. To ignore this feature is to ignore the victim’s right to bodily autonomy, and allows another to make a choice about what is acceptable to do to their body (and to some extent perhaps even decisions about their sexuality).

Anonymous

Frankly if the author is seeking a legal career, they should think again. They have patently misrepresented the facts of the cases cited. If they did this in practice, they might face stiffer consequences than criticism in the comments section.

Anonymous

Oh get over yourself. It’s a student article not a set of particulars.

The argument in the piece is open to criticism for the reasons Just Anonymous and others have given. But it’s well written and tackles a difficult subject.

Just Anonymous

Agreed. If I were forced to re-read some the self-righteous drivel I produced as a student, I’d probably die of shame.

Anonymous

Your student essays didn’t claim to be journalism. This is.

Anonymous

Legal Cheek is hardly journalism

HHJ Dutton's meme

If it’s still got a penis, it’s a man.

If it’s been through the penis guillotine, I’m happy for it to be called a woman.

Simples!

Anonymous

Um.. Women are more than just men without penises. To suggest otherwise is, frankly, insulting. Would you call men women with added dangly bits and no uteruses? Thought not.

There are two sexes. Man-with-intact-penis is not the norm with everyone else “other”.

Anonymous

A refreshing article! I think that judicial training is needed to improve the situation! Societal attitudes are changing (THANK GOD) and the legal profession needs to know how to deal with this. I think transgender people have enough on their minds (especially near the beginning) in trying to find who they are – without having to climb walls for the judiciaries respect and understanding. Good for you for raising the issue!

Shocked.

I haven’t the will power remaining after reading this tripe to berate the author in the manner deserved. Gender issues exist in our society, but this sort of diatribe does nothing but contribute to the problem.

Nevetheless I must question how legal cheek can maintain the assertion that it offers valuable legal commentary after willingly publishing something so utterly perturbed. Disgraceful.

Boris

I met her in a club down in old Soho

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