Guest editorial by Susannah Cornwall
from Modern Believing Vol 58:4 - October 2017
Variant Sex and Gender, Law and the Churches
Whilst sex, gender and sexuality in religious perspective are impassioned topics of discussion both within faith communities themselves and among their observers, variant sex and gender are still relatively under examined. This special issue of Modern Believing focuses in particular on intersex and transgender, and examines how legal recognition of transgender and intersex people impacts on religious (especially Christian) communities, and on the implications for intersex and transgender people’s spiritual wellbeing of their participation in and full recognition by churches.
Growing public awareness of and interest in transgender in recent years has been paralleled by a growth in theological work in this area. Among the best of it is that drawing on trans people’s experience and spiritual reflection. This has sometimes taken the form of theological memoir, as with Rachel Mann’s powerful book Dazzling Darkness: Gender, Sexuality, Illness and God, in which she points to the deeply apophatic nature of her own journey and its resonances with voices from the tradition, including Mechtild of Magdeburg, Thomas Merton, and Meister Eckhart. Mann’s themes of redemption, resurrection and eucharistic rebirth sit alongside reflections on broader questions of embodiment and vocation which are very far from being ‘niche’ issues. Similarly confessional-experiential, if less theologically developed, is the 2016 collection This is my Body: Hearing the Theology of Transgender Christians, edited by Christina Beardsley and Michelle O’Brien. This builds on the stories of those closely or more distantly associated with Sibyls, the Christian spirituality group for trans people and their families, and is a potent reminder of a time prior to trans visibility. The contributions range from memories of those negotiating trans identity as young children in the early twentieth century, to critique of church documents on transsexuality that fail to take adequate account of real trans experience.
By contrast, there is still a stream in some theology, as exemplified by Mark Yarhouse’s Understanding Gender Dysphoria, targeted at evangelical congregations, which primarily understands trans people as those to whom ‘we’ must exercise compassion because of their unfortunate state. Despite clearly being motivated by a desire to love and do right by trans people, Yarhouse’s account assumes a) that all trans people experience gender dysphoria, b) that trans identity is therefore always a problem for trans people, and c) that surgical and other intervention should always be seen as an unfortunate last resort rather than positively therapeutic. Yarhouse’s primary theological concern is the Fall and the notion that trans people’s integrity of self has been marred. Whilst he draws on his (anonymized) trans Christian patients’ narratives, he undermines their capacity to speak for themselves by querying their self-identification (for example, referring to people by birth names and genders rather than those they prefer to use). This type of stream, which might be characterized as benevolent paternalism, has also characterized some church statements on transgender, such as the Church of England’s treatment of the topic in 2003’s Some Issues in Human Sexuality.
Frustrations with what at the time was an absence of good reflection on the interactions between variant sex and gender, religion and faith underlay a project undertaken at the University of Exeter in 2014-15. Three of the papers in this special issue were presented at a workshop convened by the Variant Sex and Gender, Religion and Faith Research Network in 2014. The network explores how variant sex and gender are understood and responded to in faith traditions; and how academic work on variant sex and gender in religions might be made more accessible to faith communities. This first workshop focused on the implications of law on transgender and intersex for faith groups, and on the potential significance of legal recognition for transgender people’s and intersex people’s wellbeing.
Three of the contributors to this special issue presented at the workshop, alongside Holly Greenberry and Dawn Vago of the campaign group Intersex UK; Mitchell Travis of the University of Exeter Law School (now at the University of Leeds); Chris Dowd, who recently completed a doctorate at Queen’s Foundation for Ecumenical Theological Education in Birmingham on transgender people’s experiences of faith; and Stephen Whittle, Professor of Equalities Law at Manchester Metropolitan University and well-known for his pioneering work with Press for Change and the World Professional Association for Transgender Health (WPATH). Whittle re-examined Article 9 of the European Convention on Human Rights, which holds that all people have the right to manifest their religion or belief. He explored how far this right is honoured in practice for gender-variant people of faith, and suggested that religious freedom for gender-variant people is itself compromised by religious communities’ legally-justified exclusion of trans and intersex people from certain ceremonies and modes of employment.
The contributors to this special issue are motivated by similar concerns. Rob Clucas, a legal scholar from the University of Hull and formerly a national trustee for Changing Attitude, argues that exemptions to equalities law in this country mean that the Church of England and other Christian denominations may perpetuate unjustified discrimination against transgender people. Using the trope of ‘microaggressions’ (small but cumulatively-damaging instances of prejudice and actual or conceptual violence against persons), Clucas holds that patterns of discrimination exist within Church of England documents and legislation and render the denomination institutionally hostile to transgender despite the efforts of individual congregations to promote inclusion.
Andrew Worthley, a practicing barrister and lecturer in law at City, University of London, suggests that religious communities should devise their own voluntary and self-regulated ‘faith sector equality duty’ to ensure transgender rights in the UK. Following Walter Wink, he holds that churches might themselves be understood as ‘fallen powers’ compromised by patriarchy and misdirected power. Rather than seeking further exemptions from the Equality Act 2010, faith bodies should aim to go over and above its requirements out of their interests in justice.
Jonathan Herring, Professor of Law at the University of Oxford, who has written extensively on intersex and law, suggests that continuing to recognize only two legal sexes and only two genders compromises the law’s capacity to ensure justice is done to all parties. He argues that family law continues to be grounded too thoroughgoingly in a paradigm based on sex and sexual relationships rather than on relationships of care.
Finally, we are delighted to include an additional piece by Duncan Dormor, who discusses in particular the Church of England’s response to the Gender Recognition Act 2004, noting that none of the bishops who spoke in the House of Lords during its passage opposed it, and, in fact, acted to temper more conservative Christian voices. Dormor points to the experience of several transgender clergy in Britain and the USA and shows that in the coming decades moderate as well as explicitly liberal Protestant denominations, in the US and beyond, are likely to move toward greater acceptance of trans people.
Since the workshop took place, there have been further statements on gender, sex and sexuality from the churches, including the Church of England House of Bishops’ February 2017 report to the General Synod entitled ‘Marriage and Same Sex Relationships After the Shared Conversations’, then identified as GS2055. Critique of the statement has included the absence of any acknowledgement of transgender or intersex people (or of bisexuality), even though the earlier Pilling Report of 2013 had noted that further work in this area was necessary. Their exclusion from the 2017 statement is disappointing not least because both intersex and transgender people took part in the regional Shared Conversations, and have expressed dismay that their contributions to the discussion – sometimes necessitating immense personal vulnerability – seemed not to have informed the bishops’ resolutions on what should happen next. Whilst marriage law was not a particular focus of the 2014 Exeter workshop, it is the case that the papers presented and reproduced here all have direct relevance to the topic, for those working in policy for the churches in Britain and beyond.
At the time of writing, the Church of England’s General Synod is scheduled to discuss a proposal from Blackburn diocesan synod on welcoming transgender people (July 2017). As Christina Beardsley has noted, some of those who have voiced opposition to the Blackburn motion have done so on the grounds that welcoming trans people would affirm their reality, a matter on which the Church of England is divided, but that the Church already does recognize and affirm trans people: via allowing people who have transitioned gender to marry in church (with an opportunity for individual clergy to abstain from marrying them), and via allowing trans candidates to go forward in the process of discernment for ordination (with an opportunity for advisers who object to be removed from the process for these particular candidates). Developing liturgies for recognition and welcome following transition would be a logical and consistent step, not a huge departure. It is to be hoped that discussion of the motion will be a catalyst for further reflection on variant sex and gender in the churches which draws more fully and attentively on trans people’s experience and on the rich and creative theologies beginning to emerge in this area.