The Criminalisation of the Transsexual
BA, LLB., Lecturer At Law, Manchester Polytechnic. Co-Ordinator, F.T.M. Network (GEMS affiliated)
Many people thought that Tom Robinson had produced an extremist song for the 1970's. Now we are in the 1990's such things do not happen any longer. If they do, then it must be because people deserve it, after all they must have broken the law for them to have to have dealings with the Criminal Justice system. I wish to look at that hypothesis in the light of recent research and the theoretical work that has been done on criminalisation.
Transsexuals were asked to let me know of any dealings they had with the law and the way in which they were treated by members of the legal professions, from the police to the judiciary. Three cases are used to illustrate some of their experiences.
Sharon was a qualified nurse who worked with severely disturbed children. She had reached a very senior position in nursing before taking a sideways move into a local authority residential care home. Both in nursing and in Social Services work, for the last 20 years, she had always disclosed her status as a post-operative transsexual to her employers. As the senior member of staff she was to become closely involved with the police when allegations of sex abuse of one of the residents were made against another member of staff. She described what happened:
This was carried in the Daily Mail: "Sex Change shock at Council Home. As Scotland Yard investigated allegations of child abuse at a London Council Home, it emerged yesterday, that an officer at the home once underwent sex change treatment. The officer who was a man and received treatment to become a woman has now undergone a further transformation to become a man again"
The police admitted that the story came from them.
"This police and press interest went on for over two years, and the result was I had a nervous breakdown. I still work for the same Local Authority but in a secretarial post, and my career and life has fallen to pieces due to the strain."
As Professor of Law at the University of Kent, Katherine O'Donovan puts it: "The whole fabric of the personal life is imprinted with colours from elsewhere. Not to acknowledge this and to pretend the private is free leads to false analysis." (Katherine O'Donovan in Sexual Divisions in the Law, 1985)
It was patently obvious to all who knew Sharon well, that not only would she not have committed the offence but also that technically she could not commit the offence. This paper looks at the process by which Sharon a highly qualified, respectable and respected child care worker became a suspect in a child abuse case, purely because she had a "sex change". And how a senior police officer could be so ignorant that not only could he could make the assumptions he did, but also that other police officers concerned (including female officers) could allow him to make his accusations without protest.
Today, in this country, there are literally thousands of offences created by statute - these can range from road traffic offences, public hygiene offences through to robbery and murder. Yet Legal and Public definitions of crimes only become official if they are subsequently accepted by the police, and some attempt is made to enrol the criminal justice system in the prevention of, or punishment for, such crimes. On the same basis, but on a more subtle level, if the police act as if something or somebody is criminal then the public/media generally accept that view. Recently we have seen this happen to the New Age travellers - some may have done criminal acts, but only as some members of all communities do. But all are treated as if they are law breakers by the police and the public. For most, this is despite the lack of prosecution for any offence, or even any evidence for any offence. This process is that of criminalisation - just "being" makes you suspect. The same thing happened to the transsexuals who are used to illustrate this paper.
Individual police officers theoretically ensure impartial law enforcement, but in all situations concerning the law and its interpretation by those empowered to employ it, we see the discretion of the individual practitioner being used.
Ranged against a formal view of the police as purely impartial "appliers" of the law is the argument that they have in fact considerable discretion both in deciding whether particular acts constitute crimes (and are therefore recorded as such) and in deciding whether particular people are criminals (and therefore should be arrested and charged). Often associated with or implied in such arguments is the view that such discretion reflects partiality on the part of the police, and that this in turn reflects the wider power relationships in society.
It has been proven that the police act impartially. For many years there was, though, the myth that the police acted fairly across the board. K.C Davies found in his 1970's study of Chicago Policemen: "The combination of selective enforcement with a comprehensive pretence of full enforcement (was) deeply established" (1975, p.166) within the force.
Now it is well accepted that the police do not have the manpower or the ability to enforce all laws equally, nor to treat all offenders with similar enforcement or punishment procedures.
James Anderton (ex-Chief Constable of Manchester) said: "Policing should be flexible enough to allow different enforcement on opposite sides of the same street if conditions dictate."
But what does flexibility really mean? Anderton was the policeman under who, in 1977, road traffic convictions fell by 35% when a policy of verbal advice replaced rigid enforcement. But at the same time, searches in the city under the Obscene Publications Act increased fivefold. There is no doubt that discretion plays a major part in a policeman's enforcement decisions. Police Culture, though, dictates how this discretion is used.
Of the police and their response to queer sexuality (see inset box), John Alderson, former Chief Constable of Devon and Cornwall, and a noted bastion of police liberalism and conscience has said "The police generally represent very conservative views, and are in fact a very conservative organisation. . . . I think there is a macho self-image about the police. I often wonder whether the police macho doesn't somehow feel itself threatened by homosexuality."[Alderson in Galloway, 1983, p 103]
|QUEER is used as Lisa Duggan does (in her wonderful article in this summer's Socialist Review) (1992) to enable transsexual's lifestyles to be discussed using references made to other issues of queerness and sexuality. That is, it is different but its icons are heavily associated by cultural outsiders with the culture of gay life, politics, and practices. Also the notion of "Queer" community, that is a collectivity no longer defined solely by the gender of it's members' sexual partners but its unity is that of a shared dissent from the dominant organisation of sex and gender.||
A Scottish Police Training Manual of 1980 adopts a tone of almost hysterical moralism, when dealing with homosexuality: "It is a sad reflection on modern society that there are still to be found in our midst persons who are so lewdly disposed that they will stoop to the most revolting and almost unbelievable acts of indecency. The terms 'sodomy', 'indecent exposure' etc. which are used in law but give little indication of the nature of these offences; the manner in which they are usually committed, and the evils they are liable to bring in their train. It is perhaps no exaggeration to say that many innocent children fall victims to the foul activities of moral degenerates." (in Galloway, 1983, p 105)
As an institution the Police are permeated with a culture of machismo and heterosexuality. From the lowest to the highest ranks there is homophobia. Nowhere is this more illustrated than in Manchester, with its legacy of a Chief Constable who said AIDS sufferers were: "Swirling around in a cesspit of their own making . . . . The fact they have got it is a consequence of their own malpractice. They had a choice and they chose to ignore the risks and, therefore suffered the consequences. This is part of the natural order of things in God's creation. To that extent, it is a judgement of God because what they did was inevitable and they chose to ignore it, so they must accept the consequences." (in Prince, 1988, p 202) and of homosexuals, that they were "an abomination that should never have been legalised . . . . I think it [referring to legislation on homosexuality] was one of the worst changes in legislation ever enacted in this country, and those who were instrumental in changing the law, if they are still alive, will surely live to regret it. It is an abomination. How anyone could say it is not sinful or against the law to engage in practices of that kind is beyond my comprehension. I abhor it." (in Prince, 1988, p 202)
It is in the light of this sort of prejudice that transsexuals have their dealings with the police. Perhaps not on every occasion when they find it necessary to have contact with them, but certainly on many occasions, police canteen culture dictates how circumstances will progress.
This is a quote from a letter, from Sue, a transsexual who started living as a woman in the early 1970's. This incident happened in 1984.
This particularly deplorable case illustrates a police attitude which is incredible, in view of the fact that as research shows transsexuals have so little to do with the police. They are law abiding, and keep clear of trouble - they are all too aware of the machismo of cop culture, as they experience it, as its views permeate through the rest of society. Also they are aware of how much they could lose. They began living in a new gender role in order to blend in, to become ordinary - they are aware of what they have to lose. Like the liberated woman, they have made great gains in life and they are loath to give them up, for a short term reward. But they can not all avoid all contact with the police.
The final case study is one which received a great deal of publicity last year. It illustrates that the values of the canteen culture do not stay within the police but permeate through society, and the criminal justice system.
As I am sure we all know, Queen Victoria could not think of the existence of lesbians, so consenting sex between women has always been legal - or so we thought. Six years is a long time, when you have not broken the law!
Criminalisation is a process, which is not limited in its action to any one particular group of people, but can also apply to an individual. But primarily it makes many, who have not broken the law, victims of the judicial system in that it wrongs them, and often leaves them without any recourse to justice as would be expected. If individuals, who belong to a criminalised group, have broken the law in some way, then they can find that the system does not just address that misdemeanour but turns its process upon their whole lifestyle. There is a need for a system of accountability, which gives access to justice for the victims of this process. It is not easy to legislate against discrimination, as the statutory provision against racism and sexism has shown, but it is quite easy to consider what is fair and just. The courts do it daily, so do tribunals. If individuals within the Criminal Justice system were more simply held to account and compensation easier to obtain, then operatives of the system would have to consider the financial and social consequences of their behaviour. To see change in any aspect of a system, we must make it too expensive to carry on in old ways.
Copyright Steven Whittle 15/9/92
Citation: Whittle, S., (1992),The Criminalisation of the Transsexual, GENDYS II, The Second International Gender Dysphoria Conference, Manchester England.
Web page copyright GENDYS Network. Text copyright of the author. Lyric copyright of Tom Robinson.Last amended 06.10.06