In 1990, the crime of sodomy between two consenting adult males in private still existed in Jersey. In light of the number of HIV and AIDS related deaths that had been rising at an alarming rate throughout the 1980s, the States of Jersey led by the uninformed, prejudiced and fearful Health and Legislation Ministers resisted calls to remove this crime from the statute books.
A few good politicians stood up to the ignorance and rumour about the gay community being pedaled by their more senior colleagues and sought out a legal way to ensure that the island did the right thing and repealed this law in order that Jersey’s gay men could access the healthcare they needed without fear of prosecution for a crime. They asked the United Kingdom (UK) government for help.
Jersey is a crown dependency. We have our own government, but when it comes to international obligations and agreements, we look to the UK to negotiate these for us and in consultation with us. This is due, largely, to the view that we have more bargaining power on the world stage as part of Great Britain rather than on our own.
Jersey’s relationship with Europe is special. We are not part of the European Union (EU) except for the purposes of free trade in goods and services. However, through our agreement with the UK to look after our international interests, we are bound by certain EU treaties that the UK has signed up to on our behalf – including being bound by the rulings of the European Court of Human Rights.
In 1990, it was this obligation that proved pivotal in repealing the outdated sodomy law. The UK government told Jersey that, because it had signed up to the human rights agreements of the EU, Jersey had, too. To continue to prosecute gay men for acts committed consensually and in private between two adults was against the UK’s, and by extension Jersey’s, international commitments to human rights. In short, if Jersey didn’t fall in line, the UK would have to impose legislation on Jersey.
The embarrassment of having law imposed on the island by the UK was what forced Jersey politicians to repeal the centuries-old law, not the thought that they were doing the right thing from an equality or human rights perspective. Many stood up in the States Chamber to say that they fundamentally disagreed with repealing the law and were only doing so to maintain good relations with the UK.
This history lesson illustrates the importance of the protection offered by a body such as the EU to minorities who need a larger entity to fight their corner when their voices, being a minority of the population, cannot and will not be heard.
This Thursday Jersey did not have a vote in the UK’s referendum on Europe because of our special and slightly aloof relationship with the EU. We are, however, affected by the outcome in a myriad of different ways – tax, trade, the economy, movement of people, human rights etc.
The trans community in Jersey, just like everywhere else, is tiny. We are about 25 people in a population of 100,000. We are not a priority for the States of Jersey and yet we desperately need a reform of our Gender Recognition Law. Currently, if we wish to legally change our gender, Jersey outsources “the problem” and forces us to apply to any one of a number of other jurisdictions who have a mechanism for recognising gender. If we are successful in these countries, we bring our gender recognition certificate back to Jersey and pass it through our Royal Court, at this point the island recognises our gender. In practice, this means applying to the UK for our gender recognition certificates.
At the moment, Jersey has said that it will not review its Gender Recognition Law until the UK reviews theirs. The outcome of a Parliamentary Committee report, compiled in January 2016, which covered the UK’s Gender Recognition Act, was that: “Within the current Parliament, the Government must bring forward proposals to update the Gender Recognition Act, in line with the principles of gender self-declaration that have been developed in other jurisdictions” and “Within the next six months, the Government must agree a new strategy which it can deliver, with full cross-departmental support”. We are still waiting to hear the results of this undertaking but, with the turmoil in the UK at the moment, it seems unlikely that any of these promised timings will be met.
By voting to leave the EU, Britain has untied itself from the European Court of Human Rights. One of the first things that David Cameron said he needed to rewrite was the Human Rights and Equality Acts in order to make this break. With a Conservative government that, by October, will have lurched further to the right, it seems unlikely that any rewriting of these acts will widen them and there is a real fear that those Conservative backbenchers, who have been thwarted in their attempts for years to close down equality, will see this an opportunity to take back rights previously granted – and, with a sympathetic leader, they might succeed.
Today, I see a future that is harder for the LGBTQ community in Britain as a result of what has happened this week but I also know, from our history, that we are resilient. If rights that were promised are not forthcoming, we will lobby until they are. If previously granted rights are to be eroded, we will find a way to regain them. To quote a Great Briton that the leave campaigners will recognise: “We will never surrender.”
More trans notes from a small island next month…