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

Stop reminding litigants what used to be between their legs

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.

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.