October 2nd, 2012

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Trans Panic on the Statute Book

I knew that the Gender Recognition Act (2004) and Equality Act (2010) were not perfect as far as trans people are concerned. Indeed, in some respects the later act withdrew rights that the earlier one had granted. However, I did believe that for almost all legal purposes the 2004 gave anyone with a Gender Recognition Certificate the right to be treated as a member of their "acquired" sex.

Seems I was wrong. I learned just in the last couple of days that there is a legal obligation on trans people in England and Wales to disclose their "gender history" to a potential marriage partner. This was instituted in the 1973 Matrimonial Causes Act, but rather than being superseded by the 2004 Gender Recognition Act it was preserved by it. If disclosure is not made, the non-trans partner can seek to have the marriage annulled.

To put this in perspective, there are very few circumstances under which marriages can be annulled, and only three of them relate to the withholding of information. These occur when one partner fails to tell the other that they a) have an STD, b) are pregnant with someone else's child, or c) are transsexual.

Now, it may generally be a good idea to tell someone you're about to marry that you have a trans history (though there may also be circumstances when it's not a good idea - and may even be dangerous), but that's not the point here. For starters, one might say the same of a lot of other circumstances. You may be gay, for example, or have a criminal record; but you can keep those a secret from your prospective spouse and marry with the law's blessing. The only fixed group of people singled out as having a permanent obligation to out themselves are trans people. Only being trans is considered so uniquely shocking as to require disclosure in advance of marriage, on pain of annulment.

There's an excellent recent article here on why this is wrong, inconsistent and probably illegal under European law, but I was quite shocked to find that it was the case at all.

One other curious thing, though. I mentioned this law on the LJ transgender community, and (so far at least) no one seems to have been aware of it. Of course, it's not surprising that the law seldom (I suspect never) actually gets used. Many trans people don't find partners. Of those that do, many don't pass. Of those that do, many are public about their trans status. Of those that aren't, almost all will want to tell their life partners. The trans panic that's written into the law is there to provide against a situation that mostly exists in the lurid imagination of scriptwriters and Mail sub-editors. But it's a spiteful and phobic provision, and even though it directly affects few if any people, it's no more pleasant to find than a turd lying on a book you won't ever read. It's just one more way in which the law says, in effect, that trans people are icky and deceptive.
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The Jeanettites

Listening to Radio 4's A Good Read, I found myself drifting from what the speakers had to say about the three books under review - Jeanette Winterson's memoir Why Be Happy When You Could Be Normal?, David Malouf's novel Remembering Babylon and Andre Agassi's autobiography, Open - and listening to how they were referring to the authors.

Jeanette Winterson was first up, and I couldn't help but notice that the reviewers, led by Val McDermid, consistently referred to her as "Jeanette". This is the kind of thing I have to cure my students of, so I suppose my hackles are in a state of constant readiness. Were they being sexist and patronising? Or was it simply a reflection of the personal nature of the genre?

David Malouf's novel was next, and I was listening out to hear if anyone would have the chutzpah to refer to him as "David". As far as I remember, however, no one referred to him at all. They stuck to the text.

Then came Agassi. This too was a memoir (albeit a ghost-written one), but unlike Jeanette Winterson, Agassi was generally referred to simply by his surname, or as "Andre Agassi". At one point McDermid imagined addressing him - "Oh come on, Andre!" Otherwise, familiar first-name-only reference was absent.

What do we make of this? What would Lord David Cecil do?