Wednesday, 21 October 2009

Gender Pronoun Shock

One the trendy words you see when you visit media websites is the phrase "fast-turn around documentaries" these are, as the phrase suggests produced very quickly on subjects which have been big in the news and are fresh in the viewers minds and still of interest. In these they have either secured new footage, a interview with a protagonist or an expert given time to explore and explain a complex subject beyond the typical 3 minute news report. "The Pregnant Man" obtained an interview with Thomas Beatie, for example. However its often true that some footage is bought in at the right price edited, given a narration and Bobs your uncle, a programme is made.

 To me "Bodyshock - Age 8 and Wanting a Sex Change", broadcast on Channel 4 on the 19th October 2009 fits into the latter category. It looked like the production company bought a well regarded film made for the American National Geographic channel with the assistance of Trans Youth Family Allies. Removing the original narration, adding its own and making a few trims. (Correction 19/11/2009, it was a original film produced by Zig Zag for Channel 4).

The end result led to a lot of the programme wanting to follow the low rent tabloid style recently seen in the Sun. Instead of fully illuminating I felt very uneasy, Like the Sun there was a sense of the circus show 'Roll up roll up, come look at them' in it.

Like many commenter's on the programmes web page  I am troubled by incorrect use of gender pronouns used by the programmes narration which contradicted those used by the delightful children, their loving parents and those around the boys and girls featured. To make the mistake worse the programme featured comments from parents saying how upsetting and wrong using incorrect pronouns was.

I can only imagine how enraged those in original documentary feel about their appearance in this. Perhaps it might be a lesson that although the show you will feature on will be great and you have got a say in how it'll look etc It could be sold on edited, manipulated without your knowledge or consent. Something to consider and sort out beforehand if you wish to cooperate in any future projects.

Thursday, 8 October 2009

Transsexual Prisioner Transfer

You probably are familiar with the widely reported successful claim by A against the Secretary of State for Justice and the governor of Manchester Prison in judicial review that she should be allowed to be transferred to a women's prison in order to fulfil the requirements to enable her to eventually receive SRS.

The summary of the facts are as follows. She was convicted of attempted rape whilst a man (her second indictable conviction) and given a life sentence. She began her transition while on remand in 2003 after a diagnosis of gender dysphoria.

Undeniably she has not entered any rehabilitation program and still poses a risk to society which makes her release on licence unlikely (and undesirable) for the foreseeable future.

The description of her incarceration suggests she is fulfilling a large part of the requirements for RLE, (subject to restrictions) including facial hair removal (who paid for this may be especially interesting to many trannssexuals who struggle to find the funds to afford electrolysis and laser treatments). It was enough to satisfy the Gender Recognition Panel into granting her a certificate in July 2006 and according to the judge "presents convincingly as a women". However this is not enough to satisfy the Gender Identity Clinic who require her to live "in role" within a women's prison.

Having looked at the Gender Recognition Act (it is recommended as an excellent cure for insomnia) I had a different interpretation of the allowing for the granting of the certificate and therefore the gender marker on her birth certificate than the GRP. But given she is in receipt it was argued that she should be recognised as a woman as per section 9. Thankfully the judge managed to stay awake long enough when reading and recognised it marked "an important milestone in the recognition of transgender rights."

The authorities defence.

The issue of cost was mentioned, they estimate moving her to the women's estate (in a special regime) to be £85,000 although some press reports imply this is an extra cost to the tax payer, given that she is in a special regime at the male estate her cost of incarceration may not be that much greater. The traditional and frequently successful "floodgates" argument was also put forward. As was the fact that she was for all intents living as a woman so much so that she had obtained a GRC and so there was no breach especially given there is no human right to SRS at the moment. Although rather unfortunately for their defence their own expert conceded that surgery might be desirable and riskier if not done.

The new draft guidelines on prisoners with gender dysphoria.

After much prevarication and interminable delay lasting many years the Prison Service finally managed to write some guidelines on prisoners with gender dysphoria. The draft arrived just as the case was coming to court. They allow for treatment except where there are "risk factors" which she poses but which are "not exceptional" compared to other female prisoners. The judge appears to have taken these draft guidelines into account several times when summing up.

The Human rights angle.

The judge considered whether her Article 8 and Article 14 rights were broken. Article 8 relates to a right to a private and family life and Article 14 relates to a right to enjoy these rights in the convention without discrimination regarding sex, race and so on. Previous judgements have determined that when someone is imprisoned they do not lose all rights.

The judge concluded that the current situation interferes with her personal autonomy "in a manner which goes beyond that which imprisonment is intended to do". Taking into account the reports by Dr James Barrett which concluded that she would only be eligible for surgery if transferred to a women's prison, the extracts from his report included in the law report state RLE is needed while admitting staying in women's prison is a rather extreme form of RLE necessary none the less.

Wednesbury unreasonableness and conclusion.

So in the end she won her challenge on human rights grounds, but the judge added as a footnote that she would have won because the Prison Service were "Wednesbury unreasonable". So even without the Human Rights Act much derided by right wing commentators the result would have been the same