The Queer Outside in Law – webinar held by Bristol Law School

The aim of the webinar was to explore the ‘tensions’ and ‘nuances’ around LGBTQI+ rights. The host described the assembled speakers as a ‘collection’ (my preferred word would be a ‘madness’) and explained that queerness can occupy so many different registers – political or literal – meaning therefore that absolutely anyone can be queer, rendering the term completely meaningless.

The panel was comprised of seven legal academics, including a dickhead sorry collaborator from the Future of Legal Gender project (later the same day Davina ‘thickie’ Cooper spoke at webinar held by another Law School, that I wrote about here – busy day). They had all written a chapter of the book ‘The Queer Outside in Law‘ (a snip at 85 Euros, or 25 per chapter) edited by Peter Dunne (Senior Lecturer, Bristol Law School) and Sen Raj (Lecturer, School of Law, Keele University).

Queer Legacies of Colonialism

Kay Lalor (Senior Lecturer, Law School, Manchester Metropolitan University)

Kay Lalor has written a chapter looking at how governments deal with sexuality and gender identity. She observed a House of Commons debate on global LGBT rights which apparently really fired her up. She realised that the British Empire was responsible for the oppression of queer people (i.e. she had arrived at a conclusion which has been repeated ad nauseam by a variety of queer theorists for the last decade).

The debate was held by an All Party Parliamentary Group on LGBT rights. Lalor felt the discussion had fallen into the trap of denying colonial legacies in UK law, which remain in the present. Lalor forgot to mention what these laws were. These legacies ‘flatten out what is viewed as elsewhere’ and ‘these legacies create elsewhere’. Hm. Okey-dokey. Still waiting to hear what these legacies are.

‘Spatially LGBT subjects are sub-divided here and there. Temporally they are produced by historical injustice. But concurrently there is a claiming of the stories of LGBT people from elsewhere as the same, or as part of our family, or part of our story, and obviously this claiming is inevitably going to flatten out dynamics of race, gender, particularly gender identity, sexual orientation, and this is all quite problematic I thought.’ It certainly is. Space and time are two of the super powers that trans people can conquer, according to Meg John Barker, who has written and lectured on the subject, so perhaps Lalor is a fan?

Finally Lalor got on topic and said that asylum seekers to the UK, are the victims of anti-LGBT laws in their countries as a result of colonialism. I would love one day for these academics to provide the historical evidence that countries in the Middle East, for example, steeped in hundreds of years of Sharia law, had ever been accepting of same sex relations in their legal frameworks.

Lalor concluded by talking about the function of paradoxes, stating that they have a two-fold function reading out a long quote and that the ‘most pressing queer legacy of colonialism is one that draws upon these paradoxical readings that complicate “inside” and “outside”, in order to ask what new framings we can generate, and for me that is the most challenging aspect of queerness and queering law’. It’s challenging alright. This drivel has actually gone into an academic book. Even my farts make more sense.

Genders that don’t matter: Non-binary people and the Gender Recognition Act 2004

Flora Renz (Lecturer, Kent Law School)

Flora Renz talked about the case of Christie Elan-Cane who had lost her right to identify as non-binary (as ‘X’) on her passport by the High Court. This had forced the legal recognition of ‘non-binary’ as a valid made-up category onto the back burner. The last three years had seen an intense debate as the government promised to reform the GRA but then didn’t (mwah ha ha).

Renz said a number of countries had made it easier over the last ten years for individuals to change their legal gender or have their gender marker removed entirely from documentation. She had considered several countries in the chapter of the book she had written. Ireland had allowed individuals the right to self-declare their own gender with no preconditions. She said Denmark, Norway, Sweden, Argentina and Columbia had taken similar approaches. However, these models generally allowed a binary change – male to female, and female to male – they did not allow the formation of a genderless or an alternative gender to be registered.

Australia, like Canada, New Zealand and several states in the USA, allows use of X as an external marker on documents like passports and driving licence. X represents everyone who does not exclusively identify as male or female, thus covers a variety of gender identities, moreover it means that it does not clash with international aviation law. However, Renz said that the Australia model ‘reserved the right to demand evidence to confirm a person’s gender identity’, so it is not a self-declaration model and is not open to anyone who did not want to disclose their legal sex on official documentation.

Another option would be to remove legal gender status from all documents and birth certificates (Renz is on the team of the Future of Legal Gender law reform project). Tasmania had allowed for gender to be removed from birth certificates on request (either as a parent registering a new birth or later as an adult).

Renz felt that the UK had been ‘creating gender neutral legislation for quite a while now’ and cited the example that in England and Wales a driving licence did not display a gender marker. (I checked and on application there are only male/female options and of course you must provide a photograph, however you are allowed to change the gender marker.) Renz then said that the gender marker is encoded on the long number on your driving licence. (So it is on the driving licence then, silly twit.)

Renz returned to the Elan-Cane case, which is now being taken to the Supreme Court for another appeal to see if it can be used for passports at the very least. Renz said that a person’s legal gender arises from each person’s birth certificate, and that the GRA 2004 allows a binary change only. Renz repeated the oft repeated lie that the burden of evidence was incredibly high, invasive, difficult to acquire and not possible for non-binary people to obtain (but what would transition to non-binary mean in any case?). The GRC panel apparently does not recognise ‘they/them’ pronouns as an indicator that someone has changed their gender.

Gender reassignment was protected in the Equality Act and Renz claimed that this was a broader category than those who had sought to legally change their sex markers and also claimed that it also covered social forms of transitioning. (It doesn’t, you must still have a diagnosis of gender dysphoria as set out in the current UK guidance as a minimum, which by implication is more than just a whim like requesting particular pronouns.)

Renz said that there had been an employment tribunal which found that ‘non-binary’ and ‘genderqueer’ people should also be protected from as a separate legal gender. Maya Forstater wrote a thread about this here and suggested it was more a straightforward case of gender reassignment discrimination/harassment, which explains why Renz decided not to name which tribunal she was referring to. She went onto strongly suggest that there was a ‘growing judicial understanding that non-binary people need to be protected, at least from discrimination in employment and service provision’.

Renz was hoping that the law would not recognise sex as belonging to an individual, but ‘rather as a product of wider social structures that use gender norms and processes that have uneven effects across different groups of people’. Renz said that if we did not have an equality framework which focused on individual rights the sexist stereotypes presented in children toys could be tackled, glossing over the obvious fact that no one is forced to buy these products.

Queering the queer/non-queer binary: Problematizing the I in LGBTI+

Mitch Travis (Law Lecturer, University of Leeds) and
Fae Garland (Lecturer in Criminal Law and Evidence, Manchester University)

My first problem is that Mitch Travis and Fae Garland would use the American spelling of the word ‘problematise’, but it got so much worse than that. They gave a decent enough description of what ‘intersex’ is, but clearly ‘intersex’ was favoured over the more accurate ‘disorder of sex development’ (DSD).

They had written a paper based on interviews they carried out with just 16 ‘intersex rights activists’ in 2014-16 ‘from all across the globe’ and of course they expressed the usual reservations that they were talking to politically motivated actors who might not of had a real diagnosis of DSD (just joking, of course they didn’t).

Like all the other activists that I have heard speak on this subject, Travis and Garland claimed that ‘intersex babies’ are routinely subjected to genital surgeries. Ambiguous genitalia is the rarest form of all DSDs, probably less than 0.001% of all births per year (according to Claire Graham). The idea that there is a conveyor belt of babies being subjected to cosmetic surgeries therefore is a flat out fallacy. I did a Freedom of Information request to Great Ormond Street Hospital in March 2020 (the hospital treats children from all over the world) and they do not perform cosmetic genital surgery. Of the surgeries they do perform, it is for clinical reasons (e.g. correcting undescended testes) and is not limited to children affected with a DSD condition.

Travis said that at first he declined to be part of the project because he was reticent to include ‘intersex communities’ (there is no such thing and many DSDs are not inherited) into a debate about ‘queerness’ but after talking to ‘intersex activists’ decided it was okay after all. Garland felt the need to giggle through her own justification.

The project was funded by the Socio Legal Studies Association in 2014 when they received a small grant from the SLSA of £1,875 for ‘Exploring different legal constructions of intersex’.

The amazing result of their research was that they found out that people who have (or claim to have) medical conditions do not automatically want to be lumped with people who identify themselves as queer or non-binary. What an unexpected result! This was described as ‘where the tensions between being queer and non-queer really came out in our research’. Cretins.

Travis talked about the definition of queer, saying his understanding of queer was very much informed by what it is as theory and as set out at the beginning by Sen Raj (i.e. that anyone can be queer), participants of their study had a more typical understanding of queer as being part of LGBT (i.e. sexuality or gender identity).

‘Whilst we as researchers probably find that really problematic to make that kind of slippage between the two, we kind of had to go with the research here and what our participants were saying about “queer” and how they felt about “LGBT”. So if you think that we’re using the term “queer” wrong, that’s not our fault,’ said Travis in what he thought was an ‘even’ tone.

Naturally enough they first of all wanted to discuss ‘intersex people who are queer’ and went through some quotes from their respondents who felt that intersex people had a ‘queering effect on law, gender and medicine’ just by existing and challenging normative ideas around male and female. Predictably it was suggested that sex was more complicated than a binary.

Despite the intersex activists not wanting to be seen as LGBT, they had sought alliances with LGBT groups and had accessed funding from the same pots and had essentially been platformed by LGBT groups. Travis said that Malta had passed a law which enshrined ‘intersex bodily integrity‘ and that The Law Society’s LGBT+ network group had done their bit (they hosted Emma Dunn*, an employee of HM Land Registry, to talk about Intersex Awareness Day – link to podcast here).

*Dunn runs the Civil Service trans and intersex network group a:gender.

The LGBT Consortium, was one of many LGBT orgs which had funded intersex activities said Travis. So I had a look and it appears they are supporting intersex activist Valentino Vecchietti, who I have written about a few times, who is setting up Intersex Equality Rights UK. I strongly suspect Vecchietti was one of the participants of their research study.

Travis told the webinar, with a straight face, that ‘there was a commonality in gender studies/queer theory to use intersex people to say that “sex isn’t binary” but without investigating the issues that affect intersex people’. Garland jumped in and mentioned parents ‘who had already signed the consent form’ (genital surgeries never being far away from either of their minds) and that creating a third gender option on birth certificates would be more likely to result in more surgeries.

Travis said that the participants in the study had been against the *German law reform which allowed a third gender option because of the threat it posed to intersex children. He alleged that Amnesty found that assigning gender as X had increased the likelihood of surgery would be performed on children. The link to that report I believe is here, I could not find the relevant paragraph which spelt this out – anyone who can find it, please comment and I will update this blog.

*For more information see BBC online news articles: ‘Germany accepts intersex identity into law‘ and ‘German parents can register babies as third gender, court rules‘

Travis said that funding had been ‘siphoned away’ from intersex activists, yet a few moments earlier had claimed the reverse; that they could only get funding via LGBT alliances. Also, many of their participants (just 16 intersex rights activists remember) said they ‘enjoyed being outsiders from the LGBT/queer community in order to ensure that their distinct political agenda was being heard’ hence the queer-non-queer binary thing that they dreamt up for their paper. (No, I really don’t understand either.)

The word ‘surgeries’ was repeated like a mantra, but they found no time to talk about the real issues that people with DSDs have in their day to day lives. I suspect that is because they were really talking to gender identity ideology activists and not people with genuine DSD conditions. The conditions are so varied, and a few are associated with quite severe disabilities, that talking about this group generically does nothing to shed light on the situation. Most people affected by DSD, as you would expect, are infertile (see paper – Fertility in disorders of sex development: A review) . Yet this was not mentioned despite it being the most obvious unifying factor between the disparate conditions which make up DSDs.

The pair had been due to present this ‘research’ at the UCL School of Law in March 2020 but it was cancelled due to lockdown. According to the blurb on that page, Mitch Travis sits on the NHS England’s DSD Policy Working Group ‘as an academic member’, so therefore he must (or should) know that it is against NHS policy to perform cosmetic surgeries on children with DSDs. On extensive searching of NHS England’s website I could find no reference to this working group. I have made an FOI.

The Best Place on the Planet to be Trans? – Transgender Equality and Legal Consciousness in Scotland

Sharon Cowan (Professor of Feminist and Queer Legal Studies, Edinburgh Law School)

Professor Sharon Cowan droned on in her nasal brogue that she had been doing research on the topic since 2002 interviewing trans-identified people, which covered Canada, the US and then finally Scotland when the project concluded in 2015. She had interviewed a total of 39 people who, according to her slide, had identified as trans now, in the past, or were a supporter/advocate. (So a paltry amount and possibly very few were trans.) She wanted to track the changes being made to trans people’s lives with respect to law and medicine focussing on concepts of equality and recognition. Cowan described herself as ‘cis’ and of course ‘intersectionality’ was a very important concept for her in thinking about the results of her research.

For her presentation on this day, she just focussed on the results of arising from the Scottish participants. This was just 8 people and all were white. She talked to them about four themes:

• their perceptions of equality,
• whether they had faith in law,
• ‘optimistic legal realism’ (which she was claiming as a ‘new form of legal consciousness’)
• was Scotland the best place to be trans?

Firstly her participants felt that they were well protected by Scottish and UK equality laws, although of course ‘many of them’ (just 8 people remember) had experienced ‘abuse, harassment or violence’ and ‘some’ of them lived in poverty. ‘Most’ of them had mental health issues.

On the subject of ‘faith in law’, which she also described as ‘strategic (dis)engagement with law’, people said some stuff and basically they didn’t believe law was up to scratch (including a non-binary policy advisor working in the equality sector), which led straight into ‘optimistic legal realism’. Which means although they didn’t believe in law, they keep trying.

‘People experienced optimism and pessimism at the same time in what I saw as a “permanency of tension” and this ties into the theme of the book of being “inside” and “outside” of law at the same time,’ Cowan whined. Sorry, but how can you be optimistic and pessimistic at the same time? I’m not really down with this whole queer paradox thing.

One of the participants said that Scotland was the best place to be trans and this inspired Cowan to draw a parallel to Scotland being ‘inside and outside of the UK’. Nope, Scotland is definitely inside the UK, there might be many a Scot who might not want to be, but this is a total nonsense sentence, which leads me to believe Cowan has her own issues with ‘strategic (dis)engagement with law’.

Cowan also looked at medical treatment for trans people, but did not want to talk about it as she wanted people to buy the book (I think she thought this was a tantaliser). Of course there were powerful (and unnamed) lobbying groups set against the most oppressed and victimised minority in the world. If Scotland is to continue to be the best place in the world to be trans, then the Scottish government had a ‘clear obligation’ to follow through on the gender recognition reforms that it had promised.

Question and Answer

The first question was to Flora Renz as to whether any non-binary applicants had had their applications for a Gender Recognition Certificate denied? And what would be the consequences of expanding gender categories in Family Law?

(First of all, no one can apply for a GRC to be recognised as non-binary, so no data will be collected on this, so a completely pointless mendacious question.)

Renz responded that there was no data on the number of people who had been refused by the GRC panel for being non-binary. She said that the refusal rate* was between 5-10% ‘depending on what quarter of the year you look at’ and she said that during the course of her own research she had been shown responses sent to non-binary applicants who had been ‘refused’ by the panel with the recommendation that they reapply if and when they decide to identify into the opposite sex. Also people ‘self-selected’ out of the process (which was never set up to deal with non-binary applicants).

Renz didn’t address the second question about Family Law, but off on a tangent of her own, exploring how would we be able to assess if non-binary people were paid in line with their male and female counterparts. No research had been done in this area, but the Future of Legal Gender project wanted to address it.

The second question was to Travis and Garland. What was the mechanics of the German gender law which lead to an increase in surgeries on intersex children?

Travis explained that the law was designed to give parents more time to decide which sex category they wanted to put their children in. The wording of the law apparently said that X was mandatory category for children born with ambiguous genitalia. Parents were reluctant to have their children put into a category of ‘no gender’, so the ‘parents pushed surgeons to operate on their children to place them in categories of male or female quicker and it was up to the medical professional to determine whether or not someone was male or female, so the power stayed with medical professionals’. Of course, he couldn’t cite any specific case studies or statistics, because the number of children born with ambiguous genitalia is exceptionally small.

The irony for Garland was that the X option was open to intersex people, who didn’t necessarily want it, but those non-binary people who did want it, could not have it. Yes, that really is the injustice of our time.

The third question returned to the theme of ‘law and space’ – the topic which was really animating them all! Raj said that the West was presented as the place of LGBT liberation and in the Middle East and Africa homosexuality was criminalised but if we took the ‘LGB out and focussed on the T we come to realise that the Global South has been a source of significant progress for trans, non-binary and gender diverse people’. He asked Lalor and Cowan if this needed to be emphasised? Perhaps there are even better places to be trans?

Cowan said that Scottish people had a superiority complex and an inferiority complex (at least she is consistent in her contradictions) and that her research was ‘intersectional in many other ways but not racially diverse’.

Lalor said that empire had violently taken over ‘space’ and imposed the ‘gender binary’ and that she had spoken to a Malaysian trans activist who had a word in their own language to describe what they were and that it was the colonisers who came and tried to make them invisible. Lalor said it was a massive and urgent task to push back against colonial violence.

Final question to all panellists was which area of law would they like to implement?

Travis said he and Garland had hold of the NHS draft policy on intersex surgeries and he was ‘really hopeful that something can be done there’ but admitted that he had not ‘fully reviewed it’ (it is against NHS policy to perform cosmetic surgeries, but often it is necessary to correct urethral openings, etc, so there is your answer). Travis bemoaned the fact it had gone on for ‘three years now’ but was keen to let us know that he was ‘hopeful’. Garland was also hopeful that the ‘medical regulations’ would change and also wanted ‘legal safeguarding’ but was cynical because ‘so much of the surgeries are hidden’.

Cowan bemoaned that the Scottish government had not been tough enough on the (presumably GRA) issue but thought it would be sorted out during the May 2021 elections.

Renz wanted equality law to worked better at an intersectionality level, especially given the rise of fascism worldwide.

Lalor was scared about the future for queer people and that the pandemic had worsened things and revealed the vulnerabilities of queer people.

Raj ended the session by saying what he wanted people to get therapy because he wanted people to have the tools to deal with their own emotions. (If anyone wants to donate to my own fund to get help after hearing all this shit please send your pennies!) Of course, trans and queer people of colour had developed some wonderful tools to help in this specific area but whoops! as per usual it was forgotten to mention exactly who or what and how we could access these essential tools.

Joking aside, all of these law lecturers are involved in educating our future legal professionals.

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