Firstly welcome to the GENDER SOCIETY LAW FORUM
I am not a lawyer, OMG your all going to say, I have always taken an interest in the forums, over the last couple of years I have noted several misunderstandings as to what constitutes the rape of a pre-op transsexual in the rape thread to basic ignorance of what people are entitled to in the way of basic rights, understanding and the right to live in the gender of their choice. The rights of a transgendered person without a gender recognition certificate and the rights of such a person with one..and a post op vary slightly. But, if you are transitioning, that is under medical supervision your rights are beyond doubt, even if your not, you still have rights to be recognised with respect for the way you present yourself. By this I don.t mean rob a bank today as a man with a beard and turn up in court tomorrow dressed en femme, that’s perhaps a far fetched example, but one that’s a bit sus.
Anyway I thought I would look a few relevant bits up, everything I looked up lead somewhere else, another act, an amendment, a revision judicial precedent, various interpretations by legal definition.
Six months later I’m still reading, But I do have someone I can lean on, A very eminent professor at law, who specialises in the GRA and the discrimination act.
Some questions I will probably be able to answer within a relevant short time, obviously more complex matters requiring an opinion in law, I will have to rely on instruction, so please be patient and perhaps we can all learn together.
The Beginning, The Transgendered & the Law
I’m sure by now, everyone in the UK will be familiar with the existence of a law crafted and formulated to protect the rights of the transgendered.
The Gender Recognition Act 2004, Which actually was the year the act was strung together and presented as a bill before the UK parliament, During its review in the House of Lords several sections of the proposed act were amended and exclusions added as to, discrimination by certain public services and the churches, which in direct consequences made amendments to the marriage act, discrimination at work and employment act and the sexual offences act. The Actual act was made law in 2005.
The Act is very simple in itself with statements of equality and basic rights in line with the same act that was passed by the European Human Rights commission and is referred to as the Human Rights charter 1999 recognition of the Transgendered.
Neither act is all encompassing, it has to be read with reference to other laws and statutes in common law.
(1) The Sexual Discrimination Act
which covers a multitude of sections covering goods and services, discrimination at work, even to treatment and recognition within the court system and whilst in police custody. Within the GRA 2004 there are some exceptions allowed. An instance would be separating a pre-op with post ops regarding common changing rooms. ie in changing rooms at public swimming pools.
Where a pre op would not be allowed to use such changing room, to prevent themselves from ridicule or causing embaressment to others Also there is a special mention within the GRA2004 excluding churches from being in breach of the act if they discriminate on religious grounds, that’s irregardless of whether a person is post op or not and does’nt matter even if they have a Gender recognition certificate or not.
(2) The Marriage Act., Another minefield,
(3) Criminal law, Especially The sexual Offences Act. And other related acts
(4) Church Laws and Ecclesiastical Law
(5) Judicial Judgements & Precedents (Case Law) an example of this is as footnote.
The Rights of Transvestites, Transsexuals and Transgendered People
The Gender Recognition Act
Transgender discrimination in employment
Discrimination in Education, Housing, Goods, Facilities and Services, and
Duties of Public Authorities
How to Complain About Transgender Discrimination
The Right to Equal Treatment: Marriage and the Family
The Right to Equal Treatment: Pensions and State Benefits
Transgender Discrimination
Right to Receive Equal Treatment
The Human Rights Act
The Right to Privacy
The Right To Know
The Rights of Suspects
The Rights of Defendants
The Rights of Prisoners
The Rights of Victims and Witnesses
The Right of Peaceful Protest
The Right of Free Expression
The Right to Receive Equal Treatment
The Sex Discrimination (Gender Reassignment) Regulations 1999
The Gender Recognition Act 2004
Overview of legislation
Legislation protecting the rights of transsexual people has evolved
over the years in response to a much greater level of awareness and
Understanding of the issues that transsexual people face. There are
two key pieces of legislation that you need to be aware of:
Sex Discrimination (Gender Reassignment) Regulations 1999;
Gender Recognition Act 2004.
back to top The Sex Discrimination (Gender Reassignment) Regulations
1999
The regulations were created in direct response to a number of high
profile cases, that made it clear that the existing Sex
Discrimination Act 1975 (SDA), did not provide enough protection for
transsexual people. The 1999 regulations make it illegal to
discriminate against anyone in employment or training who:
is preparing to undergo gender reassignment;
is currently undergoing gender reassignment;
has already undergone gender reassignment.
Gender reassignment is defined by the SDA as:
a process which is taken under medical supervision for the purpose
of reassigning a person's sex by changing physiological or other
characteristics of sex, and includes any part of such a process
The regulations allow for any reference to discrimination in
employment against men or women in parts II and III of the SDA, to
be treated as equally applicable to discrimination on gender
reassignment grounds. However, the regulations only cover direct
discrimination, which mainly includes harassment and victimisation.
Additionally, there are exceptions to the provisions of the
regulations, most notably where a person’s sex is classed as a
‘genuine occupational requirement’ for a job, although such
instances are likely to be limited and difficult to prove.
There are also a number of limited temporary exceptions that apply
during the process of gender reassignment. This might include a
situation where it is deemed unreasonable for someone undergoing the
process of transition, to share accommodation with a person(s) of
either sex, on the grounds of privacy and decency (e.g. working on
board a ship where private accommodation is not provided).
Legal protection is available from the time you inform your employer
that you are intending to undergo gender reassignment. If, at this,
or any later stage, you believe you have been the victim of
discrimination by either your employer, or your colleagues you have
a number of options:
discuss the issue with your employer and remind them of their
responsibilities to you under current regulations;
if this doesn't work and you wish to take the matter further you
can make a formal complaint to an employment tribunal.
back to topThe Gender Recognition Act 2004
The Gender Recognition Act came into force in April 2005. It allows
transsexual people, for the first time, to apply for legal
recognition, via the Gender Recognition Panel, of their new gender.
Successful applicants will receive a gender recognition certificate
(GRC) which means that they:
acquire all the same rights and responsibilities associated with
their gender;
can marry a person of the opposite gender;
are eligible for the state retirement pension (and other benefits)
at the age appropriate to the new gender;
can apply for a new birth certificate in their acquired name and
gender.
The Act also amends the Sex Discrimination (Gender Reassignment)
Regulations 1999 by ensuring that the only discrimination on the
basis of gender reassignment that is lawful, is in cases where there
are genuine religious reasons.
Additionally, although there is no specific allowance within the
regulations in terms of time off for gender reassignment,
transsexual people should be treated the same as anyone else deemed
medically unfit for work. Equally, anyone diagnosed as suffering
from gender dysphoria or gender identity disorder, is protected
under the Disability Discrimination Act 1995 (DDA).
Press for Change has produced helpful guidelines (Transsexual People
in the Workplace: A Code of Practice), which cover various matters
relating to employment including recruitment and medical treatment
during employment.
The Gender Equality Duty came into force in April 2007 requiring
public authorities to promote gender equality and eliminate sex
discrimination. The duty places responsibility on public authorities
to show that they treat men and women fairly. The duty will cover
employment practices such as recruitment and flexible working and,
together with the Gender Recognition Act, will put further pressure
on employers to be more explicit in their fair practice in regard to
transsexual people.
That’s basically an overview of the general act in future publications I will endeavour to link various parts of the act to examples of Judicial reviews and precedents, and explain various sections of the act their interpretation and how they relate to other laws and statutes.
An Example of Judicial Precedent
R versus John Matthews
The ruling which confirmed that vaginal rape of a transsexual woman may be prosecuted as rape
October 1996
This important and under-reported ruling confirmed that non-consentual penile penetration of the surgically-constructed vagina of a transsexual woman can, in law, be rape if the other ingredients of the offence are satisfied
Prior to this ruling Vaginal rape was based on the legal, technical description and clinical make of a Gender born females Vagina.
Which defence council were adamant that within the legal definition ‘’Vagina’ that a case of rape was not applicable as a surgically constructed vagina did not meet the clinical specifications and purpose of a natal born womans vagina, pleading that the charge be reduced to a lesser charge of indecent assault.
The RH Judge Hooper ruled
turn then to the question whether penetration of a male’s artificial vagina can constitute rape in the circumstances reflected by the admissions. Section 1 uses the word “person”. The words “whether vaginal or anal” relate to the intercourse. Indeed, the section might more happily read:
“A man commits rape if (a) he has sexual intercourse (whether vaginal or anal) with a person”.
Furthermore, rape being the non-consensual penile penetration of either of the two intimate orifices, I see no reason why, as a matter of public policy, that the offence is not committed.
In conclusion, therefore, in my judgment, penile penetration of a male’s biological artificial vagina can, in law, constitute rape. There is no dispute that, having resolved the matter in this way, I should direct the jury that, as a matter of law, the penile penetration of this complainant’s vagina is rape if the other ingredients of the offence are satisfied.
This was something, that had never been envisaged when drafting the GRA, that a transsexuals vagina was not included in the lawful description when it came to rape, this case law, precedent in law has overruled the clinical definition as far as the sexual offences act sect (1) vaginal rape. Rape is no longer gender specific under the sexual offences act now, it is an offence against the persons act rape, either anally or vaginally.
I will try and include further interesting examples of case law in future publications, regarding Hight Court Judgements relating to the failures of Health Services and public bodies being found negligent or at fault when dealing with the Our particular community and the laws and our entitlements to fair and unbiased treatment.
Cristine Jennifer Shye
Janis.
If your curteous and make your position clear, behave like a woman, then legally your entitled to the defference of how you present, as in miss, madam, etc, of course if you come it with a load of abuse and c words, you will probably not get the respect and understanding you are looking for. Even the courts take into consideration, trans people appearing as the accused or witnesses, are addressed as how they present, regardless of wether they are fully transitioned or in the process, gender certificate or not, its how you present yourself.
Cristine
That again Crissie is very well written. Why before certain laws were enforced anyone could not class rape as rape is beyond me. Vaginal , Anal , male , female , or Transexual it is rape.
You make the world a better place I hope you realise that. And in the future you will make it even better . And just as Cass says , I am proud of you too.
Take care xxx
Well here I am 8 years later with my law degree, inspired by this site ''The Gender society'' basically shocked at the transgressions and bigotry heaped upon us as a minority group, hoping to specialise in the UK GRA and the Human rights laws relevant to trans people under the EU Human rights charter.
The UK probably has the most inclusive, relaxed laws of any country in the world, to date 22 EU member states still have enforced medical procedures before they can apply for a Gender Recognition Certificate, Some time ago in a post I pointed out that in my opinion enforced medical procedures to qualify were in effect a contradiction to said Human rights, but Strasbourg had approved/ratified each individual states gender recognition acts, We have seen a few people here making comments on other countries acts and stating what goes for them is applicable here in the UK, not so, if it was a standard across the EU act we would have been forced to adopt some of the more punishing aspect of other states acts. many of them preceding the advent of the UK protection act referring to trans people 2004. A member country is not guilty of failure to comply, as long as it complies with it's own act, until Strasbourg rules otherwise.
Since then we have come a long way seeing our own act and other applicable acts being amended, one such instance is the 2013 amendment to the marriage act, allowing married couples to stay married upon application for their recognition certificate, if they complete a mutual agreement form, then when the new birth certificate is issued for the person transitioning a revised marriage certificate (same sex marriage) is also registered, saving the heartache and distress of going for a divorce or annulment and a subsequent civil marriage.
Last year I attended a pre-seminar conference the enforced requirement medical procedures requirement, very happy to announce Strasbourg Ruling.
''The European Court of Human Rights today found that the sterilisation requirement in legal gender recognition violates human rights. Setting the legal precedent for Europe, this decision will force the remaining 22 countries using the infertility requirement to change their laws.
This historic decision is delivered in three joined cases against France about the lack of self-determination of transgender individuals in the country. A. P., E. Garçon and S. Nicot relied on Article 8 of the European Convention on Human Rights, i.e. the right to respect for private life
“Today is a victory for trans people and human rights in Europe. This decision ends the dark chapter of state-induced sterilisation in Europe. The 22 states in which a sterilisation is still mandatory will have to swiftly end this practice. We are looking forward to supporting those and other countries in reforming their national legislation.” comments Julia Ehrt, Transgender Europe Executive Director.
However, the Court denied that forced medical examinations ordered by the national court (E. Garcon v France) or a mental health diagnosis (A.P. v France) contradict the Convention.
“It is regrettable that cruel and unnecessary medical examinations are seen to be in accordance with the European Convention on Human Rights. We will continue to raise awareness about the human rights abuses in the medical field that trans people are still systematically subjected to.”, says Richard Köhler, Senior Policy Officer of Transgender Europe.
The three applicants have been struggling for almost a decade to have their gender identity recognised by the French state. Before October 2016, a person who wanted to have their gender identity legally recognised needed to prove infertility and genital surgery plus undergo excessive and lengthy discriminatory examinations.
The Court found that requesting proof for “having undergone a sterilising operation or medical treatment resulting in a very high probability of infertility, amounts to a breach by the respondent State of its positive obligation to guarantee the right […] to respect for […] private life.” Thus, states cannot demand from a person seeking legal gender recognition to undergo any medical treatment that would most likely result in sterility'' .https://tgeu.org/issues/legal-gender-recognition/
The requirement to be under medical supervision remains, to qualify for ones Gender Recognition Certificate, this is self explanatory, it ensures, or should, that people are genuinely in need of the treatment they deserve, in this age of litigation and ambulance chasers in my opinion it is the right decision, we have already seen men interned in UK prisons for some heinous crimes now claiming to be transgendered to apparently avail themselves of an easier life in a woman's prison, eg Ian Huntley, the killer sex abuser of two very young girls.