On the Kim Walmsley gender case

Newspapers are reporting that a woman from Liverpool, Kim Walmsley (right), has had her marriage annulled, and been refused a passport, because the official copy of her birth certificate wrongly records her gender as male. The result is that she had to leave Australia with her husband in 2005, where she had been living on a temporary work visa and had set up a business. The fact that she is actually female is demonstrated by having had five children of her own, but the law apparently provides no means of rectifying this error, unlike when people actually have their gender reassigned. (Update: Kim has started an e-Petition to get this law changed; you have to be a British resident or citizen to sign.)

I learned about this by seeing a link on Twitter to the story on PinkNews, which itself was derived from a story on the Daily Mirror site. The Daily Mail has a fuller version. It seems she was able to get married and get a passport by submitting copies of the certificate her family had been issued after her birth, but when she needed to renew it and was out of the country (or perhaps had lost the original), it transpired that the register office had kept a copy that said she was male and so this was her “official” gender. The upshot was that her marriage was declared to be an illegal same-sex marriage and so was no basis for her to have a visa in Australia. The situation is a cause of distress for her not only because she is unable to get a passport, but also because she is a Christian and the Church has also ruled her marriage invalid. This is pretty ridiculous, because marriage as a religious ritual is separate from marriage as a legal document, and surely womanhood in the sense required for a religious marriage is not conferred by a bit of paper which can be written on in error. It is a matter of fact.

There actually is a precedent for someone to have their official gender changed without going through the gender recognition system: in 1998 a girl named Joella Holliday, who had been born intersex and who had no recognisable sex at birth, won a campaign to get her gender legally reassigned (according to the Daily Mirror, the Office for National Statistics agreed to reassign her). She had been given the name Joel David as her mother wanted to christen her and give her a name as she feared she would not survive. At age one, she was reassigned female as she did not have the body parts necessary to function as a male, but the state refused to issue her an amended birth certificate until the family were on the verge of taking the case to the European Court for Human Rights. Kim’s case should be clearer than that because she is actually biologically female and always was.

Some transgender activists have made an issue of this (it was a tweet by one of them that alerted me to this):

(“Cis” is the opposite of “trans”, in this case meaning a woman who was correctly identified as a girl at birth and has lived all of her life as a female and does not challenge this fact.)

The problem is that the law actually provides a mechanism for a trans person to change their legal gender, and the two-year wait is intended to make sure the change is permanent before altering an important legal document. This woman has been waiting nine years since this mistake came to light in 2005, and her current gender has been in place since she was born in 1965, not since 2005, so the two-year wait has already been exceeded. With trans people, their sex is correctly identified at birth and they develop a different gender identity and sometimes take steps to make it a physical reality. In this case, a mistake on a bit of paper means that an official document which consitutes the legal record of someone’s gender (or sex, as it actually says) does not match the physical reality or her identity. (Similar difficulties exist for some intersex people who develop a different gender identity to the one they were assigned, or identified with, at birth; the legal gender reassignment process that exists for transgender people does not apply to them.)

There is no legal mechanism for changing Kim’s gender because this mistake is quite rare and the eventuality was not taken into account when the law was written. It is much rarer than someone undergoing a gender reassignment process, but rectifying it should be a simple process as it was just a clerical error; there is no great debate to be had over it. The resentment of some trans activists for this story becoming prominent while they experience some of the same difficulties is misplaced, as this has nothing to do with transgenderism except for the fact that laws that benefit them, do not benefit her. It smacks of “if we suffer, so should she”.

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