I have to start by saying that overall, I am extremely impressed by the report from the UK Parliamentary Inquiry into Trans Equality. The vast majority of the recommendations are progressive, sensible, and have genuinely taken trans people’s views on board (and I’m not only saying that cos they quoted me). I absolutely praise and endorse the Committee for that, and for the hard work that went into that.
However, there are two areas where they have fundamentally missed the point, and several others whether they have acknowledged a problem but copped out of proposing action. It seems to me that those are tied together by some unspoken assumptions about gender that we need to address.
Let’s start with an analogy. My friend Laura is a devout Catholic. When she started dating, it was important to her that her partner also be a Catholic. She met guys through Christian dating websites, and church events. When she got engaged to Jack, the two of them had marriage preparation classes with the parish priest, got married in the parish church, and agreed that the kids would be baptised and raised Catholic (and in fact, they were sent to Catholic schools).
Let us imagine that Jack now wants to convert to Judaism. For Laura, that would be a fundamental reshaping of the basis on which they entered the marriage. As far as she is concerned, they said their vows in front of God, and that was a religious contract. She probably wouldn’t have started dating Jack if he hadn’t been a Catholic. That doesn’t necessarily mean Laura would want a divorce – she and Jack are very close, and they might find a way to deal with this. But there has been a fundamental change in their marriage, and that could end in divorce.
What would not happen in this situation is state involvement. Jack could declare himself to be Jewish on all government documents, and expect total equality on faith grounds in all areas of work, goods and services. Jack would not be required to submit evidence to a Faith Recognition Panel from 2 rabbis, confirming that he was really Jewish. He would not have to demonstrate to the FRP that he’d been living as a Jew for two years. He would not have to confirm whether or not he’d been circumcised, and if not, get a doctor to explain why not. The Women and Equalities Committee seem to have basically got the point that there is no reason to treat gender as being different from faith in this respect. However, they still want to retain a distinction with regard to spousal involvement. In my analogy, Laura does not have to consent to Jack’s religious conversion, at any stage. If she feels a mixed faith marriage is intolerable to her, the option open to her is to seek divorce. However, if I were married, my partner would have to consent to my gender recognition. I do not think it is reasonable for the state to decide that gender is fundamental to my relationship , but faith is not fundamental to Laura’s. People are different. What they think is important is different.
There are other, more practical issues with the spousal veto. The Committee has acknowledged spousal veto is open to abuse. Good. However, they don’t seem to have thought about situations where consent isn’t an option. Suppose you have an older married couple, and one partner has dementia and lives in a care home. It is fully agreed the person with demetia no longer has legal capacity, and the other partner has power of attorney for them. The other partner is in the process of transitioning, but continues to visit their spouse regularly, and the person with dementia seems to be aware that their visitor is someone who cares for them. Under the spousal veto, the options open to the trans person are either to divorce their spouse (which, aside from the horrendous emotional impact, would probably also create financial and legal complications) or to wait for them to die. That seems needlessly cruel.
I think the reason for the difference in attitudes towards faith and gender is that, after a few hundred years of bickering, the state has basically now grasped that it should not intervene in matters of religious conscience. But we’ve only very recently come out of a period in which gender was regulated by the state. Until pretty recently, it was considered well within the state’s remit (indeed, possibly part of the state’s duty) to use things like marriage and pensions legislation to reinforce social norms on gender relationships. We need to establish that that isn’t the state’s role any more.
Much as I like him, I think John Dean of the Laurels GIC was responsible for giving the Committee a misleading view of this. As far as I’m aware, no trans person is seriously calling for hormones and surgery to be available on the NHS on instant demand. What we are saying, as the Committee’s report itself acknowledges, is that the current system is paternalistic, arbitrary and does not treat trans people as active participants in their own care, and that needs to be fundamentally re-thought.
How does the current system work in practice? Well, despite the fact that no-one has ever proved the existence of a gay gene, Dr James Barrett, consultant at the London GIC wrote a book in 2007 in which it’s pretty clear he believes homosexuality and gender variance are linked and run in families – so if you go to London GIC, you might well get asked if you’ve got any gay relatives. On the plus side, they’ll probably assess you and offer you hormones you in two appointments – provided you’ve got your deed poll sorted. The Laurels makes you have compulsory sessions of psychotherapy; Daventry will give you a physical exam and ask you to write your life history; Nottingham will make you bring a parent or a partner to an appointment; Sheffield needs to see you six times before it will consider hormones. The Laurels is known for being pretty supportive of non-binary options, but many of the others won’t consider (for example) chest surgery for AFAB people who don’t want to take testosterone, or else treat it as some extra special situation that requires extra sign-off.
Whether you want to talk about “informed consent”, “evidence based medicine”, “patient centred care” or any other buzzword of the day, the current system has nothing to do with individual patient needs. None of the requirements above have anything to do with the international standards of care the clinics say they work to – in fact, some of them explicitly contravene information in the standards (for example, the standards explicitly say you do not need to socially change role before starting hormones, but most clinics require this, or at least put you through the system faster if you have). They’re simply practices that have grown up over the years and turned into rules.
The NHS Constitution already includes the following right:
“You have the right to be involved in planning and making decisions about your health and care with your care provider or providers, including your end of life care, and to be given information and support to enable you to do this. Where appropriate, this right includes your family and carers. This includes being given the chance to manage your own care and treatment, if appropriate.”
If that was consistently met, I suspect we wouldn’t really be discussing informed consent, except as a philosophical issue. I know plenty of trans people who would be capable of managing their own care and treatment, and where it would be appropriate for them to do so. Just give us the rights the NHS has already said we should be guaranteed.
Particularly where it came to young people and non-binary people, the Committee were very cautious. They did recognise there were problems, and in some cases proposed adjustments that would be helpful, but they often stopped short of concrete recommendations.
I think this comes back to the tendency to paternalism with regard to gender, which I’ve already outlined as being relevant to both the spousal veto and the GIC system. Neither medicine nor parliament seems quite ready to let go of the idea that it might know best about a person’s gender. And while the report does mark a shift, the shift is strongest for binary adults. There still seems to be a tendency to talk about non-binary people and young people as being potentially “confused”, and thus needing protecting from themselves.
There are two things to say to that. Firstly, a lot of the non-binary people and gender variant young people I know are extremely unconfused. Some non-binary people have been out and campaigning for recognition for years. Some young people have been saying the same thing about their gender, consistently, for years. It is unfair and patronising to treat them as confused, or to say that they need protection from themselves.
On a slightly separate point, the whole idea of people who are “confused” needing protection by making it harder for them to be recognised seems deeply flawed. It seems to me that the converse is true – they would be better protected if the law recognised that gender can be fluid, and it’s not the end of the world to change your mind. I change my mind regularly about whether I call myself gay or bisexual (although I wouldn’t necessarily describe myself as confused on the subject, more hampered by terminology). I find it far more freeing that I am able to change my mind about how I describe myself, and am not expected to prove myself, or make a permanent commitment, than if I had to prove I was *really* a particular sexuality and intended to stay so permanently before I could be recognised as such.
Given that legal recognition is explicitly not tied to decisions such as surgery, and generally has pretty little relevance to anything any more, I say let people be confused. Let young people experiment and change their minds if that’s something they need to do. Let genderfluid people be fluid.
It’s time for the state to realise that its job is to promote gender equality, not control gender. The report shows we’re getting there – but we’re not there yet.